text:
    In the Matter of Westchester County Correction Officers Benevolent Association, Inc., Appellant, v Kevin M. Cheverko et al., Respondents.
    Submitted February 3, 2014;
    decided April 3, 2014
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


source: Caselaw Access Project

author: Chief Judge Lippman Graffeo, J.

license: Public Domain

text:
    [8 NE3d 852, 985 NYS2d 474]
    The People of the State of New York, Respondent, v Marsha Sibblies, Appellant.
    Argued February 13, 2014;
    decided April 8, 2014

      APPEARANCES OF COUNSEL

      Steven Banks, The Legal Aid Society, Criminal Appeals Bureau, New York City (<Jonathan Garelick of counsel), for appellant.

      Robert T. Johnson, District Attorney, Bronx (Kayonia L. Whetstone and Joseph N. Ferdenzi of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

Order reversed and information dismissed. Defendant’s motion to dismiss the information under CPL 30.30 should have been granted.

Chief Judge Lippman

(concurring). The Court is unanimous in holding that the People did not meet their CPL 30.30 speedy trial obligation to be timely ready for trial and, as a result, the misdemeanor information should be dismissed.

The issue is whether the period of time between an off-calendar declaration of readiness for trial by the People and their statement of unreadiness at the next court appearance may be excluded from the statutory speedy trial period under CPL 30.30. We would hold that such a period of prosecutorial readiness may not be excluded from the speedy trial period unless the People’s unreadiness is occasioned by an exceptional fact or circumstance.

I

Defendant Marsha Sibblies was arrested on November 27, 2006 and charged with various felony and misdemeanor offenses arising out of an altercation during a traffic stop. On February 8, 2007, the People moved to dismiss the only felony charge and replaced the felony complaint with a misdemeanor information, charging, among other offenses, assault in the third degree. The filing of the misdemeanor information started the 90-day statutory speedy trial period for the People to declare readiness for trial (see CPL 30.30 [5] [c]). On February 22, 2007, the People filed an off-calendar certificate of readiness and a supporting deposition.

Eight days later, on March 2, 2007, the People requested the medical records of the officer injured in the altercation. On March 28, 2007, the next scheduled control date, the People told the court that they were not ready: “Your honor, the People are not ready at this time. The People are continuing to investigate and are awaiting medical records [of the officer injured in the altercation].” The People indicated that they expected to receive the records within a week, which they apparently did.

The People did not file a second certificate of readiness until May 23, 2007, 104 days after the speedy trial period began to run. At the following control date, the case was adjourned so that counsel could file the motion to dismiss the misdemeanor information under CPL 30.30 that is the subject of this appeal.

Supreme Court denied the motion, apparently excluding the 34 days between the People’s declaration of readiness and the March 28 appearance from the 104-day period. The case proceeded to trial, at which the People offered the testimony of the injured police officer as well as his medical records. Defendant was convicted of obstructing governmental administration in the second degree and resisting arrest but was acquitted of assault in the third degree. The Appellate Division affirmed, rejecting defendant’s speedy trial argument (98 AD3d 458 [1st Dept 2012]). It reasoned that the People were ready for trial on February 22 because they could have made out a prima facie case for assault in the third degree even in the absence of the officer’s medical records.

A Judge of this Court granted defendant leave to appeal (20 NY3d 1104 [2013]).

II

By the early 1970s, the legislature had become concerned with the backlog of cases in the criminal courts that caused lengthy delays in bringing defendants to trial (People v Anderson, 66 NY2d 529, 535 n 1 [1985], citing Mem of State Exec Dept, Crime Control Council, 1972 McKinney’s Session Laws of NY at 3259). These delays deprived defendants of their right to a prompt trial, hindered the People’s ability to try cases effectively, and undermined public confidence in the criminal justice system (see id.). The legislature passed CPL 30.30 in 1972 in an effort to remedy these problems (id.).

CPL 30.30 seeks to accomplish its goal by obligating the People to prepare promptly for trial (id.; People v Price, 14 NY3d 61, 63 [2010]). To that end, the People must be ready to try a defendant accused of a misdemeanor within 90 days of commencement of the action and maintain readiness thereafter (CPL 30.30 [1] [b]; People v Stirrup, 91 NY2d 434, 440 [1998]). To be ready, the People must (1) declare in open court that they are ready or file an off-calendar certificate of readiness and serve it on defense counsel, and (2) “in fact be ready to proceed at the time they declare readiness” (People v Chavis, 91 NY2d 500, 505 [1998]).

As to the first requirement, the off-calendar certificate allows the People to declare readiness in a timely manner, even where the statutory period expires before the next court date. In Stirrup we explained that when the People’s lack of readiness necessitates an adjournment, “a subsequent [off-calendar] statement of readiness can save the People from liability for the remainder of the adjournment period” (91 NY2d at 436).

As to the second requirement, readiness requires more than simply “mouthing” the words (People v England, 84 NY2d 1, 4-5 [1994]). “The inquiry is whether the People have done all that is required of them to bring the case to a point where it may be tried” (id. at 4).

Where the People fail to declare readiness within the statutory period, a defendant may move to dismiss the accusatory instrument (CPL 170.30 [1] [e]). The defendant bears the initial burden of demonstrating that the People were not ready within 90 days (see People v Santos, 68 NY2d 859, 861 [1986]). The burden then shifts to the People to establish that a period should be excluded in computing the time within which they were required to be prepared for trial (id.). Time may be excluded for numerous reasons, including, for example, delays resulting from appeals, delays at the request of the defendant, or where the defendant has absconded (CPL 30.30 [4]).

In this case, defendant has met her burden; the People were not ready within 90 days. The burden therefore is on the People to establish that at least 14 days of the 104-day period should be excluded. The People contend that the 34 days between their February 22 off-calendar declaration of readiness and their March 28 in-court statement of unreadiness should be excluded.

The People’s argument is supported superficially by our holding in Stirrup that an off-calendar statement of readiness allows the People to avoid having an entire adjournment charged to them. Stirrup, however, appeared to address the situation where the People declare readiness off-calendar and remain ready at the next appearance, not where, as here, the People declare readiness off-calendar only to declare themselves unready at the next appearance.

In the latter situation, the defendant is prevented from availing herself of the People’s readiness. If the People are not ready at the court appearance, the defendant cannot ask the court to set the matter for trial. This would be readiness in the air, without readiness on the ground. If the defendant cannot ask for a trial, the People’s readiness has served effectively to harm the defendant by delaying the running of the statutory period. But CPL 30.30 demands prosecutorial readiness, not for its own sake, but to reduce delays in criminal prosecutions.

Where the People file an off-calendar certificate of readiness and subsequently declare at the next court appearance that they are not ready, a defendant understandably may be perturbed by the People’s prior claim of readiness. The defendant can, as here, challenge the propriety of the declarations. This case, however, illustrates the need for clarification of what the People must show in response to such a challenge.

We would hold that, if challenged, the People must demonstrate that some exceptional fact or circumstance arose after their declaration of readiness so as to render them presently not ready for trial. The requirement of an exceptional fact or circumstance should be the same as that contained in CPL 30.30 (3) (b), which

“preserves for the People such portion of the readiness period ... as remained available when readiness was originally declared, in the limited situation where ‘some exceptional fact or circumstance,’ [including, but not limited to, the sudden unavailability of evidence material to the People’s case,] occurring after the initial readiness response, makes it impossible for the People to proceed” (Anderson, 66 NY2d at 534, quoting CPL 30.30 [3] [b]).

The court may hold a hearing on the issue. If the People cannot demonstrate an exceptional fact or circumstance, then the People should be considered not to have been ready when they filed the off-calendar certificate, and the time between the filing and the following appearance cannot be excluded and should be charged to them.

This rule flows from the purpose of the statute. It is intended to expedite, not delay the defendant’s ability to seek resolution of a case. Indeed, allowing, without scrutiny, declarations of readiness off-calendar and subsequent declarations of unreadiness at the next appearance creates the possibility that this scenario could be reenacted ad seriatim. But CPL 30.30 is not a mechanism for filibustering trials.

In this case, the People’s unreadiness, while declared in good faith, was not due to the type of “exceptional fact or circumstance” contemplated by CPL 30.30 (3) (b). It was not occasioned by, for example, the sudden unavailability of a material witness or material evidence, merely the People’s desire to strengthen their case. As a result, the 34-day period from the People’s off-calendar declaration of readiness to their in-court statement of unreadiness is chargeable to the People. The People therefore did not declare readiness within the 90-day statutory period.

No injustice is worked upon the People here. Even with the 34 days charged against them, the People received the officer’s medical records well before the 90-day period expired and could have filed a timely off-calendar certificate of readiness.

In an appropriate case the People may avail themselves of the statutory mechanism for ensuring that an adjournment be excluded from the speedy trial period. They may seek a continuance under CPL 30.30 (4) (g) (ii), which allows a court to grant the People an excluded continuance when they need “additional time to prepare [their] case and additional time is justified by the exceptional circumstances of the case.”

For these reasons, we would reverse the order of the Appellate Division, grant defendant’s motion, and dismiss the misdemeanor information.

Graffeo, J.

(concurring). I agree that the order of the Appellate Division should be reversed and the information dismissed. But I write separately because I would decide this case on a narrower basis than the one proposed by Chief Judge Lippman.

In November 2006, defendant Marsha Sibblies was arrested following a physical altercation with police officers during a traffic stop. Based on this incident, defendant was originally charged with felony assault and various misdemeanors, but on February 8, 2007, the People dropped the felony charge and replaced the felony complaint with an information, which left pending only the misdemeanor charges, including assault in the third degree. As a result, the parties agree that the 90-day period for the People to declare readiness for trial began to run on February 8 (see CPL 30.30 [5] [c]). The People filed an off-calendar statement of readiness 14 days later on February 22. Less than 10 days after declaring readiness, however, the People ordered a copy of the injured police officer’s medical records. At a March 28 calendar call, the prosecutor stated: “[T]he People are not ready at this time. The People are continuing to investigate and are awaiting medical records. It was a cop assault.” The court scheduled the case for trial on June 7 and informed the prosecutor that the ensuing time would be charged to the People until a new certificate of readiness was filed.

On May 23, the People filed a second off-calendar statement of readiness. Defendant moved to dismiss under CPL 170.30 (1) (e), asserting that the People were not ready within 90 days because the entire 104-day period between February 8 and May 23 was chargeable to the People. She contended that the February 22 statement of readiness was illusory based on the People’s decision to pursue further investigation and the request on March 28 for an adjournment.

Supreme Court denied the motion and the case proceeded to trial, at which the People offered the testimony of the injured police officer as well as his medical records. Defendant was convicted of obstructing governmental administration in the second degree and resisting arrest but was acquitted of assault in the third degree. The Appellate Division affirmed, rejecting defendant’s CPL 30.30 claim on the basis that the People could have presented a prima facie case of assault on February 22 even without the officer’s medical records (98 AD3d 458 [1st Dept 2012]). A Judge of this Court granted defendant leave to appeal (20 NY3d 1104 [2013]).

The “ready for trial” requirement of CPL 30.30 has two distinct elements. First, there must be “either a statement of readiness by the prosecutor in open court ... or a written notice of readiness sent by the prosecutor to both defense counsel and the appropriate court clerk” (People v Kendzia, 64 NY2d 331, 337 [1985])—the latter being referred to as an off-calendar statement of readiness. And second, the People “must in fact be ready to proceed at the time they declare readiness” (People v Chavis, 91 NY2d 500, 505 [1998]). Only the second prerequisite is at issue here.

It is well settled that, under the second prong, a statement of readiness made “at a time when the People are not actually ready is illusory and insufficient to stop the running of the speedy trial clock” (People v England, 84 NY2d 1, 4 [1994]). We have explained that the second requirement will be met unless there is “proof that the readiness statement did not accurately reflect the People’s position” (People v Carter, 91 NY2d 795, 799 [1998]). In other words, there is a presumption that a statement of readiness is truthful and accurate (see People v Miller, 113 AD3d 885, 887 [3d Dept 2014]; People v Acosta, 249 AD2d 161, 161 [1st Dept 1998]).

In People v Bonilla (94 AD3d 633 [1st Dept 2012]), the Appellate Division held the presumption rebutted under circumstances very similar to the present case. There, the People answered ready for trial but later requested two adjournments so that they could further investigate the case. The Appellate Division concluded that the People’s requests rendered the initial statement of readiness illusory, noting that “the record does not support an inference that the People made an initial strategic decision to proceed, if necessary, with a minimal prima facie case, but later determined to present additional evidence” (id. at 633 [citation omitted]).

So too here. The People initially declared that they were ready for trial on February 22 but within days sought copies of the injured officer’s medical records. And at the next calendar call, the prosecutor admitted that the People were not in fact ready to proceed because they were continuing their investigation. The prosecutor indicated that the People needed to examine the medical records to decide if they would pursue introduction of the records into evidence at trial (which they later did). Significantly, the prosecutor gave no explanation for the change in circumstances between the initial statement of readiness and the subsequent admission that the People were not ready to proceed without the medical records. The February 22 statement of readiness therefore did not accurately reflect the People’s position (compare Carter, 91 NY2d at 799). As a result, the People are chargeable with the entire period from February 8 to May 23, exceeding the 90-day limit.

Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott and Rivera concur; Chief Judge Lippman concurs in an opinion in which Judges Smith and Rivera concur; Judge Graffeo concurs in an opinion in which Judges Read and Pigott concur; Judge Abdus-Salaam taking no part.


author: Rivera, J.

text:
    [9 NE3d 903, 986 NYS2d 408]
    In the Matter of Subway Surface Supervisors Association, Respondent, v New York City Transit Authority, Appellant.
    Argued February 12, 2014;
    decided April 8, 2014

      APPEARANCES OF COUNSEL

      Office of the General Counsel, New York City Transit Authority, Brooklyn (Robert K. Drinan and Richard Schoolman of counsel), for appellant.

      Law Office of Stuart Salles, New York City (Gail M. Blasie and Stuart Salles of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, the motion to dismiss the petition granted, and the certified question answered in the negative.

Petitioner Subway Surface Supervisors Association is a labor union that represents employees working under the title Station Supervisor Level I (SS-I). It commenced this special proceeding against the New York City Transit Authority (TA) asserting that its members were being paid a lower base salary than their claimed counterparts, Station Supervisor Level II (SS-II), for the same type of work. The sole allegation in the petition was that the TA violated Civil Service Law § 61 (2), prohibiting out-of-title work.

The TA moved to dismiss the petition on, among other grounds, failure to state a cause of action. In response, the Union abandoned its section 61 (2) claim and opposed the TA’s motion on new, unpleaded theories, that the TA’s conduct violated Civil Service Law § 115 and the Equal Protection Clauses of the New York and United States Constitutions.

Supreme Court deemed the section 61 (2) claim abandoned and, despite the fact that the Union failed to move for leave to replead or to amend its petition to allege the new claims, concluded that the petition stated a “potential” section 115 violation, but that “a factual dispute” remained concerning whether SS-Is and SS-IIs performed the same duties (2010 NY Slip Op 33912[U], *10 [Sup Ct, NY County 2010]). It referred the disputed issue to a special referee for a hearing, but before that hearing could be held Supreme Court granted the TA leave to appeal to the Appellate Division (2011 NY Slip Op 30132[U] [Sup Ct, NY County 2011]).

A divided Appellate Division affirmed. The majority found that the petition alleged viable Civil Service Law § 115 and equal protection claims (102 AD3d 532, 534-536 [1st Dept 2013]). The dissenting Justices would have dismissed the petition for failure to state a cause of action because, in their view, section 115 enunciated only a state policy and did not confer upon state courts jurisdiction to enforce that policy (id. at 536-537). They would have found the Union’s Equal Protection Clause arguments to be without merit (id. at 538-539). The Appellate Division granted the TA leave to this Court on the certified question whether the order of Supreme Court as affirmed by the Appellate Division was properly made (2013 NY Slip Op 74624[U] [1st Dept 2013]).

Civil Service Law article VIII, “Classification and Compensation of State Employees,” contains three titles, the first of which (title A), entitled, “Classification and Allocation of Positions,” begins with section 115, “Policy of the state,” which provides:

“In order to attract unusual merit and ability to the service of the state of New York, to stimulate higher efficiency among the personnel, to provide skilled leadership in administrative departments, to reward merit and to insure to the people and the taxpayers of the state of New York the highest return in services for the necessary costs of government, it is hereby declared to be the policy of the state to provide equal pay for equal work, and regular increases in pay in proper proportion to increase of ability, increase of output and increase of equality of work demonstrated in service.”

Courts of this State have routinely interpreted section 115 and its predecessor, the nearly identically-worded former Civil Service Law § 37, as merely enunciating a policy, conferring no jurisdiction on a court to enforce what is simply that—a statement of policy (see Matter of Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO v State of N.Y. Unified Ct. Sys., 35 AD3d 1008, 1010 [3d Dept 2006], quoting Gladstone v Board of Educ. of City of N.Y., 49 Misc 2d 344, 346 [Sup Ct, Kings County 1966], affd 26 AD2d 838 [2d Dept 1966], affd 19 NY2d 1004 [1967], cert denied 389 US 976 [1967]; Matter of Goldberg v Beame, 22 AD2d 520, 522 [1st Dept 1965], revd on other grounds 18 NY2d 513 [1966]; Beer v Board of Educ. of City of N.Y. 83 NYS2d 485, 486 [Sup Ct, Kings County 1948] [interpreting former Civil Service Law § 37, and stating that it was “a mere statement of general policy applicable to all Civil Service employees”], affd 274 App Div 931 [2d Dept 1948]).

It is clear that section 115 is a preamble to Civil Service Law article VIII, and no private right of action flows from it. Article 14 of the Civil Service Law (the Taylor Law) provides the mechanism for represented employees to challenge alleged wage disparities between classifications.

The Appellate Division’s reliance on Bertoldi v State of New York (275 AD2d 227 [1st Dept 2000], lv denied 96 NY2d 706 [2001]) for the proposition that section 115 creates a private right of action is misplaced. The Bertoldi court, in addressing the claimants’ section 115 argument, pronounced that “[t]he principle of equal pay for equal work need not be applied in all cases under any and all circumstances” (id. at 228, citing Matter of Shattenkirk v Finnerty, 97 AD2d 51 [3d Dept 1983], affd 62 NY2d 949 [1984]). The Appellate Division majority in this case took that pronouncement to mean “that there are circumstances in which the principle of equal pay for equal work must be applied [under section 115] and that this [c]ourt has the power to apply it,” although it acknowledged the dearth of reported case law where courts exercised such power (102 AD3d at 535).

However, contrary to the contention of the Appellate Division and the Union, the language employed in Matter of Shattenkirk v Finnerty and favorably cited in Bertoldi does not permit a court-sanctioned remedy pursuant to section 115. Shattenkirk involved a challenge to a “budget bulletin” that allegedly deprived the petitioner of an 8% salary increase while providing a similar increase to employees of a lesser grade, the bulletin’s purpose being to ensure that lower-level employees did not earn salaries higher than their supervisors’ salaries. The court, as part of an equal protection analysis, held that “in matters involving the State budget, equal protection does not require that all classifications be made with mathematical precision . . . [n]or does the principle of equal pay for equal work mandate that such principle must be applied in all cases under any and all conditions” (Shattenkirk, 97 AD2d at 57-58 [citation omitted]). While individual employees are not foreclosed from asserting violations of equal protection, section 115, which is at most a general policy of the state, does not provide a vehicle for such relief. The equal protection claims must be dismissed, however, because the Union freely negotiated and executed the collective bargaining agreement that contained lower wage rates for SS-Is and, to the extent an equal protection claim can be raised, it must be asserted by the employees subjected to the alleged discriminatory conduct (see e.g. Litman v Board of Educ. of City of N.Y., 170 AD2d 194 [1st Dept 1991]).

Rivera, J.

(concurring). I concur that the Appellate Division should be reversed and the certified question answered in the negative, and, for the reasons stated in the memorandum, I agree that petitioner Subway Surface Supervisors Association’s (SSSA) claims under the Federal and State Equal Protection Clauses should be dismissed. However, I disagree with the reasons stated for dismissal of the Civil Service Law § 115 claim, and would instead dismiss that claim because SSSA failed to plead its entitlement to relief based on proper section 115 equal pay for equal work allegations. I write separately to present my analysis that section 115 sets forth a clear legislative mandate to ensure pay equality for state employees, guaranteed in part by a cognizable private cause of action that allows parties to challenge pay discrimination.

The action, as originally filed, alleged that respondent, the New York City Transit Authority (NYCTA), violated Civil Service Law § 61 (2) by assigning out-of-title work to employees represented by SSSA. According to SSSA’s petition, the NYCTA employs two levels of Station Supervisors, Station Supervisor Level I (SS-I) and Station Supervisor Level II (SS-II). Further, SSSA represents the SS-I employees and nonparty Transit Supervisors Organization represents the SS-II employees. The NYCTA requires the same skills from employees at both levels, and they must pass the same competitive examination. However, SS-II employees make $14,000 more in annual base salary than SS-I employees under separate contracts negotiated by their respective unions. Although the respective functions and duties of SS-I and SS-II employees originally differed, SSSA’s petition alleged that the NYCTA has shifted work from the SS-II employees to the SS-I employees since 2003. According to the petition, this shift has required SS-I employees to do work outside of their title.

The NYCTA moved to dismiss SSSA’s petition, alleging that it was time-barred, subject to laches, and that it failed to establish subject matter jurisdiction or state a cause of action. In response, SSSA abandoned its section 61 challenge and changed its theory of liability, alleging that the wage disparity between SS-I and SS-II employees violated the principle of equal pay for equal work embodied in Civil Service Law § 115 and the Federal and State Equal Protection Clauses.

The NYCTA replied that SSSA had improperly raised a section 115 claim for the first time in its opposition papers and that the claim lacked merit. According to the NYCTA, Civil Service Law § 115 does not apply to the NYCTA’s employment practices because the NYCTA is a public authority, not a state agency. Furthermore, according to the NYCTA, under Civil Service Law article 14 (the Taylor Law), the Public Employment Relations Board (PERB) had exclusive jurisdiction over any dispute arising out of the parties’ collective bargaining, including a wage dispute.

In its supplemental affirmation in response to the NYCTA, SSSA asserted that the NYCTA was subject to the Civil Service Law by virtue of Public Authorities Law § 1210 (2), which expressly states that NYCTA employees are governed by the Civil Service Law. Supreme Court denied the NYCTA’s motion to dismiss. The court acknowledged that the SSSA had abandoned its section 61 claim, but determined that the NYCTA had ample opportunity to respond to the SSSA’s new grounds for relief. The court concluded that the NYCTA was subject to section 115 through section 1210 (2), and that there were questions of fact as to whether SS-I and SS-II employees performed the same duties. The court referred the matter to a special referee to address the factual issue and granted the NYCTA leave to appeal, which it did (2010 NY Slip Op 33912[U] [Sup Ct, NY County 2010]; 2011 NY Slip Op 30132[U] [Sup Ct, NY County 2011]).

In a 3-2 decision, the Appellate Division affirmed. The Court concluded that Civil Service Law § 115 applies to the NYCTA and “codifies a critical public policy,” which Supreme Court had the authority to enforce (Matter of Subway Surface Supervisors Assn. v New York City Tr. Auth., 102 AD3d 532, 534-535 [1st Dept 2013]). The Court also determined that SSSA’s petition stated a valid equal protection claim (id. at 536).

The dissent rejected both contentions. According to the dissent, Civil Service Law § 115 applies to the NYCTA, but the statute “merely enunciates a policy as opposed to providing an enforceable statutory right” (Matter of Subway Surface Supervisors Assn. v New York City Tr. Auth., 102 AD3d 532, 537 [1st Dept 2013, Abdus-Salaam, J., dissenting] [internal quotation marks omitted]). The dissent also found that SSSA had failed to state a claim under the Equal Protection Clauses. The dissent concluded that SSSA could not obtain a wage increase through the courts when it had failed to do so through collective bargaining with the NYCTA.

As a preliminary matter, I agree with the majority that the NYCTA is subject to the Civil Service Law (see majority mem at 1184 n 2). Public Authorities Law § 1210 (2) states:

“The appointment, promotion and continuance of employment of all employees of the [New York City Transit Authority] shall be governed by the provisions of the civil service law and the rules of the municipal civil service commission of the city. Employees of any board, commission or department of the city may be transferred to positions of employment under the [New York City Transit Authority] in accordance with the provisions of the civil service law and shall be eligible for such transfer and appointment without examination to such positions of employment. Employees who have been appointed to positions in the service of the city under the rules of the municipal civil service commission of the city shall have the same status with respect thereto after transfer to positions of employment under the [New York City Transit Authority] as they had under their original appointments. Employees of the authority shall be subject to the provisions of the civil service law.”

The plain language of the statute makes clear that the NYCTA’s claim that it is beyond the reach of the law is without merit (see Margolis v New York City Tr. Auth., 157 AD2d 238, 241-242 [1st Dept 1990]).

The NYCTA’s argument that it is subject only to select provisions of the Civil Service Law fares no better. The NYCTA claims that section 115, and the entirety of Civil Service Law article VIII, apply only to “the nitty-gritty of the mechanics of managing . . . the State’s civil service system (and not a public benefit corporation’s personnel).” This argument cannot withstand scrutiny based on the plain language and clear purpose of Public Authorities Law § 1210 (2), which subject the NYCTA to the entirety of the Civil Service Law, including section 115.

Turning to the NYCTA’s arguments that Civil Service Law § 115 creates no private cause of action that may be asserted by the SSSA, the NYCTA concedes that this section requires employers to pay equal wages for equal work. The provision reads specifically:

“In order to attract unusual merit and ability to the service of the state of New York, to stimulate higher efficiency among the personnel, to provide skilled leadership in administrative departments, to reward merit and to insure to the people and the taxpayers of the state of New York the highest return in services for the necessary costs of government, it is hereby declared to be the policy of the state to provide equal pay for equal work, and regular increases in pay in proper proportion to increase of ability, increase of output and increase of equality of work demonstrated in service.” (Civil Service Law § 115.)

The majority and the NYCTA argue, however, that this language enunciates only a policy, creating no rights which the courts are authorized to enforce. It is true that a preambular statement of policy set forth in a statute does not present a basis by which a court may enforce some amorphous right to relief. Where a statute lacks any guidance as to its implementation, or a policy statement is so general as to be aspirational, the statute lacks the appropriate clarity of intention and presents a judicially unenforceable statement (see McKinney’s Cons Laws of NY, Book 1, Statutes § 122).

That is not the case with section 115, which is more than preamble. Section 115 states the purpose and goals of the statute, namely “to attract unusual merit and ability to the service of the state of New York” and “to insure to the people and the taxpayers . . . the highest return in services.” It also sets forth a requirement of “equal pay for equal work,” which courts can interpret and apply in their review of state action. Enforcing principles of equality within a legislative framework is a core judicial function, and one with which courts are well familiar. For example, courts have long enforced the various civil rights laws (e.g. Executive Law § 298; Administrative Code of City of NY § 8-125).

The cases upon which the majority and the NYCTA rely are not as clear as they contend. In Beer v Board of Educ. of City of N.Y. (83 NYS2d 485, 486-487 [Sup Ct, Kings County 1948]), the court declined to apply Civil Service Law § 37, the forerunner to section 115, in a situation where there was no “palpable discrimination or arbitrary action detrimental to [an] individual or class” (citations omitted). The necessary negative implication of such a statement is that a party may rely on the Civil Service Law to correct palpable discrimination that results in pay disparities. In Beer, the court weighed the desirability of respecting the administrative discretion of a state agency against the principle that a court may enforce the explicit policy of the State. The court concluded only that plaintiffs had not made out a case of invidious discrimination, not that a court cannot enforce the principle of equal pay for equal work when presented with such a case. Tlxis ambivalence persists throughout the reported cases, which have repeatedly recognized that section 115 “need not be applied in all cases under any and all circumstances” (e.g. Matter of Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO v State of N.Y. Unified Ct. Sys., 35 AD3d 1008, 1010 [3d Dept 2006]; Bertoldi v State of New York, 275 AD2d 227, 228 [1st Dept 2000]; Matter of Shattenkirk v Finnerty, 97 AD2d 51, 57-58 [3d Dept 1983]). That would obviously include cases in which no wage disparity exists given the nature and differences of the job duties at issue, but it would also include cases where the wage disparity could be justified by valid policy reasons.

Here, the NYCTA presents several reasons why this is the type of case to which section 115 has no application. It argues that section 115 does not apply because the SSSA negotiated these salaries and thus cannot now seek to avoid the consequences of its voluntary collective bargaining process. However, the collective bargaining process cannot insulate parties from the application of laws prohibiting disparity in wages because courts cannot enforce contracts, including collective bargaining contracts, that conflict directly with applicable law (see e.g. Board of Educ. of Union Free School Dist. No. 3 of Town of Huntington v Associated Teachers of Huntington, 30 NY2d 122, 129 [1972]).

The NYCTA also argues that PERB has exclusive jurisdiction over a union dispute. We have held in Matter of Zuckerman v Board of Educ. of City School Dist. of City of N.Y. (44 NY2d 336, 343 [1978]) that PERB has authority to address unfair labor practices, but is not vested with “general power to prohibit governmental officials from violating express statutory provisions.” Thus, where the expressed principle of equal pay for equal work has been violated, courts retain their authority to enforce the law.

Therefore, I cannot agree that the section 115 claim should be dismissed because section 115 fails to provide a private cause of action; for, as discussed, it surely does. However, the facts here suggest another reason why section 115 cannot provide relief to SSSA for the NYCTA’s alleged wrongdoing. While the parties dispute whether the SS-I and SS-II employees really perform the same job for different pay, this case presents a situation in which SSSA contends that there is a rate of attrition in the SS-II position that results in the shifting of duties from SS-IIs to SS-Is. Thus, SSSA admits that any pay disparity arises from the needs of the workplace and not from any invidious discrimination. Accordingly, section 115 can provide no relief absent some other basis to find that the NYCTA violated the principle of equal pay.

In a suitable case, I would hold that a court may invoke section 115 to correct wage disparities that have no rational basis or result from arbitrary action (see Matter of Tolub v Evans, 58 NY2d 1, 8 [1982]; Beer, 83 NYS2d at 487). This case does not present such a situation. Therefore, I concur in the result.

Judges Graffeo, Read, Smith and Pigott concur; Judge Rivera concurs in result in an opinion in which Chief Judge Lippman concurs; Judge Abdus-Saiaam taking no part.

Order reversed, with costs, appellant’s motion to dismiss the petition granted, petition dismissed, and certified question answered in the negative, in a memorandum.

      . SS-IIs are represented by a different labor union.

      . Although section 115 refers specifically to the “state,” because the TA is a public benefit corporation whose defined purposes are for the benefit of the people of the State of New York, the appointment, promotion and continuance of employment of all TA employees is governed by the Civil Service Law (see Public Authorities Law §§ 1201 [1]; 1202 [2]; 1210 [2]).

      . In its appeal to this Court, the NYCTA does not argue that Supreme Court erred, as a matter of law, when it reviewed SSSA’s section 115 claim. In any event, Supreme Court properly exercised its authority under the CPLR to hear alternative theories of liability because doing so did not cause prejudice (see Diemer v Diemer, 8 NY2d 206, 210-212 [1960]).

      . Any claim by the NYCTA that section 115 fails to require equal pay for equal work would be frivolous. In Matter of Association of Secretaries to Justices of Supreme & Surrogate’s Cts. in City of N.Y. v Office of Ct. Admin. of State of N.Y. (75 NY2d 460 [1990]), we reviewed a dispute over the Classification Review Board’s decision to reduce the pay grade of appellate clerks to that of trial clerks doing the same work. In approving the action, we held that section 115 “require[d] that the salary grades” be equivalent (id. at 476).


text:
    Stephen Allen, Plaintiff, and Sandra Morrison-Allen, Appellant, v Mercyfirst, Respondent.
    Submitted March 3, 2014;
    decided April 8, 2014
   Motion for reargument of motion for leave to appeal denied [see 22 NY3d 860 (2014)].


text:
    Courtney Boyles, Appellant, v Carrie L. Lewis et al., Respondents.
    Submitted February 10, 2014;
    decided April 8, 2014
   Motion for leave to appeal denied. Motion to expand the record denied.


text:
    Charter One Bank, FSB, Successor by Merger to Albank, FSB, Respondent, v Richard F. Mills, Appellant, et al., Defendants.
    Submitted March 3, 2014;
    decided April 8, 2014
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Darrell Clinton, Appellant, v Brian Fischer, Commissioner, New York State Department of Corrections and Community Supervision, Respondent.
    Submitted February 24, 2014;
    decided April 8, 2014
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    Patricia J. Curto, Appellant, v National Fuel Corporation, Respondent.
    Submitted February 18, 2014;
    decided April 8, 2014
   Motion, insofar as it seeks leave to appeal from the Appellate Division order of affirmance, denied; motion, insofar as it seeks leave to appeal from the Appellate Division orders (1) denying reargument or leave to appeal to the Court of Appeals and (2) dismissing the appeal from Supreme Court’s order denying re-argument, dismissed upon the ground that such orders do not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Talakkottur R. David, Appellant; Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted March 3, 2014;
    decided April 8, 2014
   Motion for reargument of motion for leave to appeal denied [see 22 NY3d 859 (2014)].


text:
    Richard Dixson, Respondent, v Waterways at Bay Pointe Home Owners Association, Inc., et al., Defendants and Third-Party Plaintiffs-Appellants. Arthur Hackert Painting, Inc., Third-Party Defendant-Respondent.
    Submitted February 24, 2014;
    decided April 8, 2014
   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.


text:
    Aaron Elkin, Appellant, v Andrea Labis, Respondent.
    Submitted February 24, 2014;
    decided April 8, 2014
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Dorothy M. Faison, Appellant, v Tonya Lewis et al., Respondents.
    Submitted January 27, 2014;
    decided April 8, 2014
   Motion, insofar as it seeks leave to appeal against defendant Bank of America, N.A., granted; motion for leave to appeal otherwise dismissed upon the ground that the remainder of the Appellate Division order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Mae Fleming, Respondent, v Willie M. Davis, Appellant.
    Submitted March 3, 2014;
    decided April 8, 2014
   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.


text:
    In the Matter of Rachel Fulmer, Appellant, v Michael Buxenbaum, Jr., Respondent.
    Submitted March 10, 2014;
    decided April 8, 2014
   Motion for reargument of motion for leave to appeal denied [see 22 NY3d 860 (2014)].


text:
    Lancaster Development, Inc., et al., Appellants, v Joan McDonald, as Commissioner of Transportation, et al., Respondents.
    Submitted February 18, 2014;
    decided April 8, 2014
   Motion by the National Black Chamber of Commerce, Inc. et al. for leave to file an affidavit amici curiae on the motion for leave to appeal herein granted and the affidavit is accepted as filed.


text:
    Seth Mitchell, Appellant, v New York University et al., Respondents.
    Submitted March 3, 2014;
    decided April 8, 2014
   On the Court’s own motion, appeal transferred, without costs, to the Appellate Division, First Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (see NY Const, art VI, §§ 3 [b] [2]; 5 [b]; CPLR 5601 [b] [2]). Motion for ancillary relief denied.


text:
    In the Matter of Stephen T. Mitchell, Appellant, v Patricia DiMango et al., Respondents.
    Submitted February 24, 2014;
    decided April 8, 2014
   Motion for reargument of motion for leave to appeal denied [see 20 NY3d 860 (2013)].


text:
    The People of the State of New York, Respondent, v Richard Perales, Appellant.
    Submitted March 10, 2014;
    decided April 8, 2014
   Motion to vacate this Court’s February 7, 2014 preclusion order granted.


text:
    The People of the State of New York ex rel. Leo Duchnowski, Appellant, v New York State Division of Parole et al., Respondents.
    Submitted February 24, 2014;
    decided April 8, 2014
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and is not an order of the type provided for in CPLR 5602 (a) (2).


text:
    The People of the State of New York ex rel. Kenley Stanislas, Appellant, v Warden et al., Respondents.
    Submitted February 10, 2014;
    decided April 8, 2014
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain the motion (see NY Const, art VI, § 3 [b]; CPLR 5602).


text:
    Joseph Saint et al., Appellants, v Syracuse Supply Company, Respondent.
    Submitted February 18, 2014;
    decided April 8, 2014
   Motion by the New York State Trial Lawyers Association for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    In the Matter of Jomo Williams, Appellant, v R.A.W. et al., Respondents.
    Submitted March 10, 2014;
    decided April 8, 2014
   Motion for reargument denied [see 22 NY3d 1060 (2014)].


author: Chief Judge Lippman.

text:
    [11 NE3d 188, 988 NYS2d 115]
    In the Matter of the Association for a Better Long Island, Inc., et al., Petitioners, and Town of Riverhead et al., Appellants, v New York State Department of Environmental Conservation et al., Respondents.
    Argued February 12, 2014;
    decided April 1, 2014

      POINTS OF COUNSEL

      Smith, Finkelstein, Lundberg, Isler & Yakaboski, LLP, Riverhead (Frank A. Isler of counsel), for appellants.
    I. A property owner affected by illegally adopted regulatory amendments must have standing to assert their invalidity at the time of adoption; otherwise the actions of the administrative agency will not be subject to review by the courts. (Matter of Save the Pine Bush v City of Albany, 70 NY2d 193; Society of Plastics Indus. v County of Suffolk, 77 NY2d 761; Matter of New York State Superfund Coalition, Inc. v New York State Dept. of Envtl. Conservation, 18 NY3d 289; Matter of New York State Superfund Coalition v New York State Dept. of Envtl. Conservation, 75 NY2d 88; Matter of New York Constr. Materials Assn., Inc. v New York State Dept. of

      Envtl. Conservation, 83 AD3d 1323; Riccelli Enters., Inc. v New York State Dept. of Envtl. Conservation, 30 Misc 3d 573; Matter of Transportation Alternatives v Gotbaum, 199 AD2d 53; Community Hous. Improvement Program v New York State Div. of Hous. & Community Renewal, 175 AD2d 905; Matter of Har Enters. v Town of Brookhaven, 74 NY2d 524; Matter of Schulz v Lake George Park Commn., 180 AD2d 852.) II. The Appellate Division’s holding that the Town of Riverhead’s facial challenge to the amendments as ultra vires is not ripe for review is contrary to this Court’s established precedents. (Klostermann v Cuomo, 61 NY2d 525; Community Hous. Improvement Program v New York State Div. of Hous. & Community Renewal, 175 AD2d 905; Amazon.com, LLC v New York State Dept. of Taxation & Fin., 81 AD3d 183; Matter of New York State Superfund Coalition v New York State Dept. of Envtl. Conservation, 75 NY2d 88.)

      Eric T. Schneiderman, Attorney General, Albany (Andrew B. Ayers, Barbara D. Underwood and Andrea Oser of counsel), for respondents.
    I. The Town of Riverhead fails to establish standing for its procedural claims because it alleges no injury in fact within any relevant zone of interests. (Matter of Gernatt Asphalt Prods. v Town of Sardinia, 87 NY2d 668; Society of Plastics Indus. v County of Suffolk, 77 NY2d 761; Matter of Save the Pine Bush, Inc. v Common Council of City of Albany, 13 NY3d 297; Matter of Best Payphones, Inc. v Department of Info. Tech. & Telecom. of City of N.Y., 5 NY3d 30; New York State Assn. of Nurse Anesthetists v Novello, 2 NY3d 207; Matter of New York State Inspection, Sec. & Law Enforcement Empls., Dist. Council 82, AFSCME, AFL-CIO v Cuomo, 64 NY2d 233; American Ins. Assn. v Chu, 64 NY2d 379; Weingarten v Town of Lewisboro, 77 NY2d 926; Church of St. Paul & St. Andrew v Barwick, 67 NY2d 510; Little Joseph Realty v Town of Babylon, 41 NY2d 738.) II. The Town of Riverhead fails to establish standing for its substantive claims, which have not yet even accrued. (Solnick v Whalen, 49 NY2d 224; Walton v New York State Dept. of Correctional Servs., 8 NY3d 186; Klostermann v Cuomo, 61 NY2d 525.)
   OPINION OF THE COURT

Chief Judge Lippman.

Petitioners Town of Riverhead and Town of Riverhead Community Development Agency (Riverhead) seek to challenge 2010 amendments to the regulations of respondent Department of Environmental Conservation (DEC). The issue presented is whether petitioners have standing to challenge these amendments. We find that petitioners can proceed with three of their procedural claims, but that they lack standing with respect to the substantive causes of action.

In November 2010, the Division of Fish, Wildlife and Marine Resources of the DEC, adopted amendments to 6 NYCRR part 182, pertaining to the protection of endangered and threatened species. Although DEC had the preexisting authority to prohibit the intentional taking (e.g., hunting or trapping) of endangered or threatened species (see ECL 11-0535), the amendments established a formal process through which individuals could obtain a permit to allow for the incidental taking of such species. As amended, the regulations provide that individuals seeking an incidental take permit must submit a mitigation plan for minimizing the impact to endangered or threatened species, which must result in a net conservation benefit to the subject species (see 6 NYCRR 182.11 [a]).

Riverhead owns approximately 3,000 acres of real property known as Enterprise Park at Calverton (EPCAL). The land, formerly the Grumman manufacturing facility site, was conveyed to petitioner by the United States Navy, pursuant to an act of Congress, for the express purpose of economic redevelopment. The property is apparently the habitat of at least two endangered or threatened species and will be subject to and affected by the amendments.

Riverhead commenced this hybrid CPLR article 78 proceeding/ declaratory judgment action within four months of the promulgation of these amendments, claiming procedural flaws in their adoption and challenging their substance. The first three causes of action alleged procedural violations concerning DEC’s failure to comply with certain provisions of the Environmental Conservation Law and State Administrative Procedure Act (SAPA)— specifically, failing to refer the proposed amendments to the State Environmental Board, failing to hold public hearings and failing to properly evaluate and analyze the potential regulatory impacts. The fourth cause of action alleged a failure to take the necessary hard look under the State Environmental Quality Review Act (SEQRA) and the remaining, substantive, causes of action alleged that the amendments were ultra vires, constituted an impermissible regulatory taking and were irrational, arbitrary and capricious. DEC moved to dismiss, arguing that petitioners lacked standing and that the proceeding was not ripe for judicial review.

Supreme Court granted DEC’s motion and dismissed the proceeding, finding both that the causes of action were not ripe and that petitioners did not have standing (35 Misc 3d 786, 797 [Sup Ct, Albany County 2011]). The Appellate Division affirmed, concluding that, although the procedural claims were ripe, petitioners lacked standing on any claim by virtue of their failure to allege an injury-in-fact (97 AD3d 1085, 1086 [3d Dept 2012]). The Court also found that the substantive challenges were not yet ripe, since any alleged harm was speculative until petitioners filed an application and the agency implemented the regulations at issue. This Court granted petitioners leave to appeal (20 NY3d 852 [2012]), and we now modify by reinstating the procedural causes of action.

“Standing is a threshold determination, resting in part on policy considerations, that a person should be allowed access to the courts to adjudicate the merits of a particular dispute that satisfies the other justiciability criteria” (Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 769 [1991]). Petitioner has the burden of establishing both an injury-in-fact and that the asserted injury is within the zone of interests sought to be protected by the statute alleged to have been violated (see Society of Plastics, 77 NY2d at 772-773). In land use matters, moreover, petitioner “must show that it would suffer direct harm, injury that is in some way different from that of the public at large” (Society of Plastics, 77 NY2d at 774). These requirements ensure that the courts are adjudicating actual controversies for parties that have a genuine stake in the litigation (see Society of Plastics, 77 NY2d at 773-774).

However, we have also recognized that standing rules “should not be heavy-handed” (Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69 NY2d 406, 413 [1987]). Rather, we have been reluctant to apply these principles in an overly restrictive manner where the result would be to completely shield a particular action from judicial review (Matter of Har Enters. v Town of Brookhaven, 74 NY2d 524, 529 [1989]).

Riverhead’s first cause of action alleges that DEC violated ECL 3-0301 (2) (a) by failing to obtain the advice and approval of the State Environmental Board prior to adopting the amendments. The second cause of action asserts that DEC failed to conduct public hearings, as required by ECL 3-0301 (2) (a) and section 202 of the State Administrative Procedure Act. River-head further alleges that the failure to conduct the hearings prevented them “from obtaining a full airing of the issues and impacts surrounding the new and substantial requirements that would be imposed by the Amendments if adopted.” In the third cause of action, Riverhead maintains that DEC violated the requirements of State Administrative Procedure Act § 202-a (3) (c) by failing to provide a regulatory impact statement that properly evaluated and analyzed the projected costs of the amendments.

Under the circumstances presented, Riverhead has standing to maintain the above procedural claims. Petitioners, governmental entities titled to land for the purpose of redevelopment, whose property is subject to the amended regulations, have alleged a sufficient injury-in-fact for these purposes. We do not, and need not, decide whether land ownership, by itself, could satisfy the injury requirement. As the United States Supreme Court has recognized, a litigant’s “ ‘some day’ intentions — without any description of concrete plans, or indeed even any specification of when the some day will be — do not support a finding of the ‘actual or imminent’ injury that our cases require” (Lujan v Defenders of Wildlife, 504 US 555, 564 [1992]). Here, however, there is more than an amorphous allegation of potential future injury. Petitioners have asserted a concrete interest in the matter the agency is regulating, and a concrete injury from the agency’s failure to follow procedure. Moreover, in connection with Riverhead’s prior proposal to subdivide the land at issue, DEC provided them with an outline for a comprehensive habitat protection plan and indicated its intention to serve as lead agency for the purposes of SEQRA review. Petitioners’ allegations are sufficient to satisfy the requirements that they have an actual stake in the litigation and suffer a harm that is different from that of the public at large (see Lujan, 504 US at 572-573 n 7, 8 [an individual can enforce procedural rights — which have been recognized as “special” — “so long as the procedures in question are designed to protect some threatened concrete interest of his that is the ultimate basis of his standing”]).

Petitioners further allege that the violation of these procedural statutes deprived them of an adequate “airing” of the relevant issues and impacts of the proposed amendments, as well as an accurate assessment of the projected costs involved. The asserted statutory provisions set forth certain procedural steps to be followed when promulgating rules or regulations. The alleged violations, including the deprivation of an opportunity to be heard, constitute injuries to petitioners within the zone of interests sought to be protected by the statutes. Most significantly, to deny petitioners standing in this case would have the effect of insulating these amendments from timely procedural challenge — a result that is contrary to the public interest (see Har Enters., 74 NY2d at 529). Given the compressed four-month statute of limitations (see State Administrative Procedure Act § 202 [8]), we would be erecting an “impenetrable barrier” to any review of this facet of the administrative action (see generally Matter of Transactive Corp. v New York State Dept. of Social Servs., 92 NY2d 579, 589 [1998]). Therefore, we find that petitioners have adequately alleged standing to contest the procedural claims. As the Appellate Division found, the procedural claims are ripe because the regulations have been promulgated and are in effect (see Matter of Essex County v Zagata, 91 NY2d 447, 453 [1998]).

The above-referenced factors are adequate to satisfy the jurisprudential concerns underlying the standing doctrine. Specifically, petitioners, whose property is directly affected by the amendments, face a concrete injury within the zone of interests protected by the procedural statutes. It is plain that this case does not present the risk that the courts will be adjudicating the rights of individuals who have only a tangential stake in the litigation. And we certainly do not hold that any individual who simply alleges a failure to follow SAPA requirements would have standing. Rather, the universe of potential plaintiffs is suitably delimited (see Society of Plastics, 77 NY2d at 779).

The fourth cause of action, asserting that DEC issued a negative declaration without taking the necessary hard look under SEQRA, however, was properly dismissed as petitioners fail to allege any environmental harm. They assert that the regulations will impede their ability to develop the property and will cause them to incur substantial costs. As we have consistently held, “economic injury [alone] does not confer standing to sue under SEQRA” (Society of Plastics, 77 NY2d at 777; see also Matter of Gernatt Asphalt Prods. v Town of Sardinia, 87 NY2d 668, 687 [1996]; Matter of Mobil Oil Corp. v Syracuse Indus. Dev. Agency, 76 NY2d 428, 433 [1990]), since it is not within the zone of interests sought to be protected by the statute.

Petitioners likewise lack standing to pursue their substantive claims. Indeed, those claims are not yet ripe as there has been no final agency action inflicting concrete harm (see Matter of Gordon v Rush, 100 NY2d 236, 242 [2003]). Until petitioners submit a permit application and DEC imposes the requirements of the amended regulations to their detriment, allegations that they are affected by those requirements through an encumbrance on their property or the imposition of costs are too speculative. There is, as of yet, no actual injury caused by the substantive provisions of the amended regulations. Relatedly, our finding of lack of standing as to the substantive claims does not create an “impenetrable barrier” to review, since the statute of limitations does not start to run until the agency issues a determination of a permit application.

Accordingly, the order of the Appellate Division should be modified, without costs, by reinstating appellants’ first, second and third causes of action and, as so modified, affirmed.

Judges Graffeo, Read, Smith, Pigott, Rivera and AbdusSalaam concur.

Order modified, without costs, by reinstating appellants’ first, second and third causes of action and, as so modified, affirmed.

      . The regulations define a net conservation benefit as:
      “a successful enhancement of the species’ subject population, successful enhancement of the species’ overall population or a contribution to the recovery of the species within New York. To be classified as a net conservation benefit, the enhancement or contribution must benefit the affected species listed as endangered or threatened in this Part or its habitat to a greater degree than if the applicant’s proposed activity were not undertaken” (6 NYCRR 182.2 [n]).

      . The State Environmental Board was eliminated and the statutory requirement was removed in 2012 (L 2012, ch 60, § 1, part D, § 44), but petitioners allege that the Board’s lack of approval in 2010 renders the amendment invalid.


author: Read, J.

text:
    [11 NE3d 174, 988 NYS2d 101]
    James L. Melcher, Appellant, v Greenberg Traurig, LLP, et al., Respondents.
    Argued February 13, 2014;
    decided April 1, 2014

      POINTS OF COUNSEL

      Hinman Straub PC, Albany (James T. Potter of counsel), and Jeffrey A. Jannuzzo, New York City, for appellant.
    I. The six-year limitations period of CPLR 213 (1) applies to Judiciary Law § 487 claims. (Gaidon v Guardian Life Ins. Co. of Am., 96 NY2d 201; Aetna Life & Cas. Co. v Nelson, 67 NY2d 169; Hartnett v New York City Tr. Auth., 86 NY2d 438; State of New York v Cortelle Corp., 38 NY2d 83; Colavito v New York Organ Donor Network, Inc., 8 NY3d 43; People v Cunningham, 2 NY3d 593; People v Jelke, 308 NY 56; Matter of United Press Assns. v Valente, 308 NY 71; Matter of Abrams v Brady, 77 NY2d 741; Matter of Morgenthau v Altman, 58 NY2d 1057.) II. Defendants are equitably estopped from asserting their statute of limitations defense. (Simcuski v Saeli, 44 NY2d 442; General Stencils v Chiappa, 18 NY2d 125; Medco Plumbing, Inc. v Sparrow Constr. Corp., 22 AD3d 647; Abraham v Kosinski, 305 AD2d 1091; Kilstein v Agudath Council of Greater N.Y., 133 AD2d 809; Corsello v Verizon N.Y., Inc., 18 NY3d 777; Giannetto v Knee, 82 AD3d 1043; Vigliotti v North Shore Univ. Hosp., 24 AD3d 752.) III. Even under a three-year statute of limitations, this action is timely because plaintiff’s claim did not accrue until plaintiff knew of Leslie Corwin’s deceit. (Sielcken-Schwarz v American Factors, Ltd., 265 NY 239; Renz v Beeman, 589 F2d 735; Abbate v Abbate, 82 AD2d 368; Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427.) IV The retroactive shortening of the statute of limitations for Judiciary Law § 487 claims violates James Melcher’s due process rights. (Guardian Life Ins. Co. of Am. v Handel,
      190 AD2d 57; New York City Tr. Auth. v Morris J. Eisen, P.C., 203 AD2d 146; Gurnee v Aetna Life & Cas. Co., 55 NY2d 184; Brothers v Florence, 95 NY2d 290.)

      Simpson Thacher & Bartlett LLP, New York City (Roy L. Reardon, Michael J. Castiglione and Rae C. Adams of counsel), for respondents.
    I. The Appellate Division correctly held that the statute of limitations is three years for a Judiciary Law § 487 claim. (Amalfitano v Rosenberg, 12 NY3d 8; Guardian Life Ins. Co. of Am. v Handel, 190 AD2d 57; Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214; Aetna Life & Cas. Co. v Nelson, 67 NY2d 169; Banca Commercial Italiana, N.Y. Branch v Northern Trust Intl. Banking Corp., 160 F3d 90; New York City Tr. Auth. v Morris J. Eisen, P.C., 203 AD2d 146.) II. The Appellate Division-was correct to reject the application of the equitable estoppel doctrine. (Putter v North Shore Univ. Hosp., 7 NY3d 548; Matter of Wilson v McGlinchey, 2 NY3d 375; Benn v Benn, 82 AD3d 548; Island ADC, Inc. v Baldassano Architectural Group, P.C., 49 AD3d 815; Massie v Crawford, 78 NY2d 516; Williams v New York City Health & Hosps. Corp., 84 AD3d 1358; McCarthy v Volkswagen of Am., 55 NY2d 543; East Midtown Plaza Hous. Co. v City of New York, 218 AD2d 628; Townley v Emerson Elec. Co., 269 AD2d 753; Babigian v Association of the Bar of the City of N.Y., 744 F Supp 47.) III. The Appellate Division and Supreme Court correctly held that James Melcher’s sole claim accrued more than three years before he commenced his action against the Greenberg Traurig, LLP defendants. (Sargiss v Magarelli, 12 NY3d 527; Jacobus v Colgate, 217 NY 235; Parmenter v State of New York, 135 NY 154; Corsello v Verizon N.Y., Inc., 18 NY3d 777; Wender v Gilberg Agency, 276 AD2d 311; Sielcken-Schwarz v American Factors, Ltd., 265 NY 239.) IV James Melcher’s “due process” rights were not “violated.” (Matter of Barbara C., 64 NY2d 866; Jorgensen v Silverman, 224 AD2d 665; Nussenzweig v diCorcia, 9 NY3d 184; Clowes v Pulver, 258 AD2d 50; Gurnee v Aetna Life & Cas. Co., 55 NY2d 184; Gager v White, 53 NY2d 475; People v Favor, 82 NY2d 254; People v Hill, 85 NY2d 256; Gersten v 56 7th Ave. LLC, 88 AD3d 189.)
   OPINION OF THE COURT

Read, J.

Judiciary Law § 487 exposes an attorney who “[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party” to criminal (misdemeanor) liability and treble damages, to be recovered by the injured party in a civil action. After plaintiff James L. Melcher (Melcher) brought this action for attorney deceit against defendants Greenberg Traurig, LLP and Leslie Corwin (collectively, defendants), defendants moved to dismiss, arguing that the lawsuit was precluded by the three-year limitations period in CPLR 214 (2). This provision governs “an action to recover upon a liability, penalty or forfeiture created or imposed by statute,” with exceptions not relevant here.

Melcher countered that his action was timely because the applicable statute of limitations was CPLR 213 (1). This so-called “catch-all” or residual provision requires “an action for which no limitation is specifically prescribed by law” to be brought within six years of a claim’s accrual. Alternatively, Melcher contended that defendants were equitably estopped from asserting their statute-of-limitations defense; and that, in any event, his claim accrued within the three-year limitations period.

Supreme Court denied defendants’ motion to dismiss. While the trial judge agreed with defendants that the applicable statute of limitations was the three-year period in CPLR 214 (2), she concluded that defendants were equitably estopped from asserting this defense (2011 NY Slip Op 34074[U] [2011]). Upon defendants’ appeal, the Appellate Division, with two Justices dissenting, reversed, granted defendants’ motion and dismissed Melcher’s amended complaint in its entirety (102 AD3d 497 [1st Dept 2013]).

The majority in the Appellate Division decided that the doctrine of equitable estoppel did not apply, and that Melcher’s claim accrued outside the three-year limitations period. The dissenting Justices expressed no opinion on equitable estoppel, but disagreed with the majority as to whether Melcher’s claim was timely. Thus, all five appellate judges agreed with Supreme Court that CPLR 214 (2), rather than CPLR 213 (1), governs an action under Judiciary Law § 487 for attorney deceit; they simply differed over the legal question of when Melcher’s claim accrued based on the pleaded facts. Melcher appealed as of right, based on the two-Justice dissent (see CPLR 5601 [a] [1]), and we denied defendants’ subsequent motion to dismiss the appeal on the ground that the dissent was not on a question of law (21 NY3d 908 [2013]). We now reverse.

A few years ago, the United States Court of Appeals for the Second Circuit certified to us the question of whether “a successful lawsuit for treble damages brought under [Judiciary Law § 487 could] be based on an attempted but unsuccessful deceit” (Amalfitano v Rosenberg, 533 F3d 117, 126 [2d Cir 2008]). The attorney-defendant in Amalfitano argued that a section 487 claim was analogous to fraud, which requires an element of reliance, and therefore no recovery could be made for an attempted but unsuccessful deceit practiced on the court. In Amalfitano v Rosenberg (12 NY3d 8 [2009]), we disagreed, observing that section 487 “[was] not a codification of” and “[did] not derive from common-law fraud” (id. at 12, 14), but instead “descended] from the first Statute of Westminster, . . . adopted by the Parliament summoned by King Edward I of England in 1275” (id. at 12).

Here, Supreme Court and the Appellate Division essentially (and understandably) interpreted the words “derive from” and “descend[ ] from” as used in Amalfitano in their narrowest possible sense to mean “originated in” the first Statute of Westminster; hence, they concluded, an action for attorney deceit is governed by the three-year period for recovery “upon a liability, penalty or forfeiture created or imposed by statute” (CPLR 214 [2]). This marked a change in the law because the Appellate Division had previously held that a claim for attorney deceit was governed by the six-year statute of limitations applicable to common-law fraud (CPLR 213 [8]), as opposed to the three-year period in CPLR 214 (2) (see Guardian Life Ins. Co. of Am. v Handel, 190 AD2d 57 [1st Dept 1993]; New York City Tr. Auth. v Morris J. Eisen, P.C., 276 AD2d 78 [1st Dept 2000]). As the courts below recognized, though, Amalfitano renders these decisions invalid. But an action for attorney deceit is not necessarily an action to recover under a statute just because it may be traced back to the first Statute of Westminster rather than common-law fraud.

Melcher points out that English statutory and common law became New York common law as part of the Colonial-era incorporation or “reception” of English law into New York law. As explained in Bogardus v Trinity Church (4 Paige Ch 178, 198 [1833]),

“[t]he common law of the mother country as modified by positive enactments, together with the statute laws which are in force at the time of the emigration of the colonists, become in fact the common law rather than the common and statute law of the colony. The statute law of the mother country, therefore, when introduced into the colony of New-York, by common consent, because it was applicable to the colonists in their new situation, and not by legislative enactment, became a part of the common law of this province” (see also Beers v Hotchkiss, 256 NY 41, 54 [1931, Cardozo, Ch. J.] [“(T)he statutes of the mother country in existence at the settlement of a colony . . . are deemed to have entered into the fabric of the common law, and like the common law itself became law in the colony unless unsuited to the new conditions” (emphasis added)]).

A cause of action for attorney deceit therefore existed as part of New York’s common law before the first New York statute governing attorney deceit was enacted in 1787 (see Amalfitano, 12 NY3d at 12 [discussing L 1787, ch 35, § 5]). The 1787 statute enhanced the penalties for attorney deceit by adding an award for treble damages, but did not create the cause of action (see State of New York v Cortelle Corp., 38 NY2d 83, 85 [1975] [“Statutory provisions which provide only additional remedies or standing do not create or impose new obligations,” within the meaning of CPLR 214 (2)]; see also Orr v Kinderhill Corp., 991 F2d 31, 34 [2d Cir 1993] [“That the statute merely enlarges the common-law scheme of liability or grants additional remedies is insufficient to bring it within CPLR 214 (2)”]).

Thus, even if a claim for attorney deceit originated in the first Statute of Westminster rather than preexisting English common law (a question unresolved by Amalfitano and disputed by the parties in this case), liability for attorney deceit existed at New York common law prior to 1787. As a result, claims for attorney deceit are subject to the six-year statute of limitations in CPLR 213 (1). Because of our disposition of this appeal, we do not reach and need not resolve Melcher’s other arguments.

Accordingly, the order of the Appellate Division should be reversed, with costs, and defendants’ motion to dismiss the complaint denied.

Chief Judge Lippman and Judges Graffeo, Smith, Pigott and Rivera concur; Judge Abdus-Salaam taking no part.

Order reversed, with costs, and defendants’ motion to dismiss the complaint denied.