author: Rivera., J. Chief Judge Lippman

text:
    [32 NE3d 400, 10 NYS3d 185]
    Dorothy M. Faison, as Administratrix of the Estate of Percy Lee Gogins, Jr., Deceased, Appellant, v Tonya Lewis, Also Known as Tonya Taylor and Another, et al., Defendants, and Bank of America, N.A., Respondent.
    Argued February 18, 2015;
    decided May 12, 2015

      POINTS OF COUNSEL

      Gordon & Haffner, LLP, Harrison (David Gordon and Steven R. Haffner of counsel), for appellant.
    I. Plaintiffs cause of action to declare the nullity of the forged deed is not subject to the statute of limitations. (Symbol Tech., Inc. v Deloitte & Touche, LLP, 69 AD3d 191; Riverside Syndicate, Inc. v Munroe, 10 NY3d 18; Marden v Dorthy, 160 NY 39; Yin Wu v Wu, 288 AD2d 104; Karan v Hoskins, 22 AD3d 638; Kraker v Roll, 100 AD2d 424; Rosen v Rosen, 243 AD2d 618; Matter of Rothko, 43 NY2d 305; Diocese of Buffalo v McCarthy, 91 AD2d 213; 3636 Grey stone Owners, Inc. v Greystone Bldg. Co., 51 AD3d 461.) II. Respondent lacked standing to assert the statute of limitations in defense of appellant’s claim to declare the nullity of the forged deed. (Perry v Williams, 40 Misc 57; Nash v Duroseau, 39 AD3d 719; 527-9 Lenox Ave. Realty Corp. v Ninth St. Assoc., 200 AD2d 531; County of Tioga v Solid Waste Indus., 178 AD2d 873.)

      Liezl Irene Pangilinan, Fidelity National Law Group, New York City, for respondent.
    I. The six-year statute of limitations contained in CPLR 213 (8) applies to all actions for fraud, including actions for forged deeds. (Piedra v Vanover, 174 AD2d 191; JP Morgan Chase Bank, N.A. v Kalpakis, 91 AD3d 722; Shalik v Hewlett Assoc., L.P., 93 AD3d 777; Vilsack v Meyer, 96 AD3d 827; Coombs v Jervier, 74 AD3d 724; Parrish v Unidisc Music, Inc., 68 AD3d 566; Georgiou v Panayia of Mtns. Greek Orthodox Monastery, Inc., 16 AD3d 998; Fitzgerald v Fitzgerald, 301 AD2d 851; Shannon v Gordon, 249 AD2d 291; Matter of Lupoli, 237 AD2d 440.) II. The holding in Riverside Syndicate, Inc. v Munroe (10 NY3d 18 [2008]) was limited to agreements that are illegal and void as against public policy and is therefore inapposite to actions for fraud. (Piedra v Vanover, 174 AD2d 191; Shalik v Hewlett Assoc., L.P., 93 AD3d 777.) III. A statute of limitations bar to forged deed claims is necessary to preserve the sanctity of title and protect property rights in New York State. (Matter of Rothko, 43 NY2d 305; Piedra v Vanover, 174 AD2d 191; Diocese of Buffalo v McCarthy, 91 AD2d 213; 3636 Greystone Owners, Inc. v Grey stone Bldg. Co., 51 AD3d 461; Witter v Taggart, 78 NY2d 234.) IV. A mortgagee has standing to assert the statute of limitations as a defense to an action that would affect its interest in the mortgaged property. (Matter of Rosevele Frocks, Inc. v Sommers, 191 Misc 614; Matter of McFarland, 7 Misc 3d 1003[A], 2005 NY Slip Op 50418 [U]; Perry v Fries, 90 App Div 484; Perry v Williams, 40 Misc 57; Nash v Duroseau, 39 AD3d 719; 527-9 Lenox Ave. Realty Corp. v Ninth St. Assoc., 200 AD2d 531; County of Tioga v Solid Waste Indus., 178 AD2d 873.)
   OPINION OF THE COURT

Rivera., J.

The legal question raised in this appeal is whether plaintiff Dorothy Faison is time-barred under CPLR 213 (8) from seeking to set aside and cancel, as null and void, defendant Bank of America’s mortgage interest in real property conveyed on the authority of a forged deed. Under our prior case law it is well-settled that a forged deed is void ab initio, meaning a legal nullity at its inception. As such, any encumbrance upon real property based on a forged deed is null and void. Therefore, the statute of limitations set forth in CPLR 213 (8) does not foreclose plaintiffs claim against defendant. As the Appellate Division affirmed the dismissal of plaintiffs claims as time-barred, we now reverse.

L

Plaintiff is the daughter and administrator of the estate of her father, Percy Lee Gogins, Jr. Gogins and his sister, defendant Dorothy Lewis (Lewis), inherited from their mother, as tenants in common, a three-family house in Brooklyn. A few years after the mother’s death, in May 2000, Lewis conveyed by quitclaim deed her half-interest in the property to her daughter Tonya Lewis (Tonya). In February 2001, Tonya recorded a deed claiming to correct the prior deed from Lewis. This corrected deed, dated December 14, 2000, allegedly conveyed Gogins’s half-interest in the real property to Tonya. Thus, if the corrected deed were valid, it would convey to Tonya a fee interest in the property. Gogins passed away in March 2001.

In September 2002, plaintiff filed an action on behalf of Gog-ins’s estate against Lewis and Tonya, claiming the corrected deed was void because her father’s signature was a forgery. In April 2003, Supreme Court dismissed the complaint on the ground that plaintiff lacked capacity to sue because she was not the estate’s administrator. At the time, Gogins’s widow was the administrator.

In December 2009, Tonya borrowed $269,332 from defendant Bank of America (BOA), which she secured with the mortgage, granted in favor of defendant Mortgage Electronic Registration Systems, Inc. (MERS). Several months later, in July 2010, Surrogate’s Court appointed plaintiff administrator of Gogins’s estate. In her supporting affidavit explaining her delay in seeking appointment, plaintiff asserted that her mother’s lawyer led her to believe that he had secured a judgment in favor of the estate, when in fact the lawyer, now disbarred, had failed to take action on her mother’s behalf.

The month following her appointment, in August 2010, plaintiff filed the underlying action against Lewis, Tonya, BOA and MERS to declare the deed and mortgage null and void based on the alleged forgery. Thereafter, BOA moved to dismiss the complaint under CPLR 3211 (a) (5) as untimely under CPLR 213 (8), and plaintiff cross-moved to dismiss the statute of limitations affirmative defense asserted in the BOA and MERS joint answer. Supreme Court granted the motion to dismiss the complaint in its entirety as time-barred, and denied plaintiffs cross motion as moot.

The Appellate Division modified the order, denying the motion to dismiss as against the individual defendants and MERS, on procedural grounds, leaving the action pending against those defendants (Faison v Lewis, 106 AD3d 1047 [2d Dept 2013]). On the merits, the Appellate Division concluded, in reliance on Second Department precedent, that plaintiffs forgery-based claim against defendant BOA was subject to the six-year statute of limitations for fraud claims set forth in CPLR 213 (8) (id. at 1048). We granted plaintiff leave to appeal against defendant BOA (22 NY3d 1193 [2014]).

IL

As a preliminary matter, because this is an appeal from a dismissal under CPLR 3211 (a) (5), “[w]e accept the facts as alleged in the complaint as true, accord plaintiff! ] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v Martinez, 84 NY2d 83, 87-88 [1994] [citations omitted]). Accordingly, for purposes of this appeal, we must assume that the deed is forged.

Plaintiff contends that a forged deed has long been treated as void ab initio, entirely without effect from inception. Therefore, the CPLR 213 (8) statute of limitations does not apply to her claims to vacate and declare the deed and defendant BOA’s mortgage-based interest in the property a legal nullity. We agree.

In Marden v Dorthy, this Court held that a forged deed was void at its inception, finding it to be a “spurious or fabricated paper” (160 NY 39, 53 [1899]), a forgery characterized by “the fraudulent making of a writing to the prejudice of another’s rights” {id.). As Mar den noted, a forged deed lacks the voluntariness of conveyance (see id. at 54). Therefore, it holds a unique position in the law; a legal nullity at its creation is never entitled to legal effect because “[v]oid things are as no things” (id. at 56).

A forged deed that contains a fraudulent signature is distinguished from a deed where the signature and authority for conveyance are acquired by fraudulent means. In such latter cases, the deed is voidable. The difference in the nature of the two justifies this different legal status. A deed containing the title holder’s actual signature reflects “the assent of the will to the use of the paper or the transfer,” although it is assent “induced by fraud, mistake or misplaced confidence” (Marden, 160 NY at 50; see also Rosen v Rosen, 243 AD2d 618, 619 [2d Dept 1997]; 26A CJS, Deeds § 153 [“where the grantor knowingly executes the very instrument intended, but is induced to do so by some fraud in the treaty or by some fraudulent representation or pretense, the deed is merely voidable”]). Unlike a forged deed, which is void initially, a voidable deed, “until set aside, . . . has the effect of transferring the title to the fraudulent grantee, and . . . being thus clothed with all the evidences of good title, may incumber the property to a party who becomes a purchaser in good faith” (Marden, 160 NY at 50).

A forged deed, however, cannot convey good title, and “[i]t is legally impossible for any one [sic] to become a bona fide purchaser of real estate, or a purchaser at all, from one who never had any title, and that is this case” (id. at 56 [emphasis omitted]; see also Yin Wu v Wu, 288 AD2d 104, 105 [1st Dept 2001] [“A forged deed is void and conveys no title”]; 2-15 Warren’s Weed, New York Real Property § 15.01 [“A purchaser who takes title through a forged deed cannot be a bona fide purchaser, even if the purchaser did not have knowledge of the forgery”]). New York’s rule reflects a general well-established principle of real property law (see e.g. Harding v Ja Laur Corp., 20 Md App 209, 214, 315 A2d 132, 135 [1974] [“A forged deed . . . is void ab initio”]; Scott D. Erler, D.D.S. Profit Sharing Plan v Creative Fin. & Invs., L.L.C., 349 Mont 207, 214, 203 P3d 744, 750 [2009] [“forged conveyances are void ab initio and do not transfer title” (emphasis omitted)]; Brock v Yale Mtge. Corp., 287 Ga 849, 852, 700 SE2d 583, 586 [2010] [“we have also long recognized that a forged deed is a nullity and vests no title in a grantee”]; Akins v Vermast, 150 Or App 236, 241 n 7, 945 P2d 640, 643 n 7 [1997] [“If fraud is ‘in factum,’ such as a forged deed or a situation analogous to forgery, the deed is void ab initio and will not support subsequent title in any person” (emphasis omitted)]; First Natl. Bank in Albuquerque v Enriquez, 96 NM 714, 716, 634 P2d 1266, 1268 [1981] [“a forged deed is a void deed and transfers no interest”]; Williams v Warren, 214 Ark 506, 511, 216 SW2d 879, 881 [1949] [“No one can claim that an estate in land should be divested by forgery”]).

It is similarly true that no property shall be encumbered, including by a mortgagee, in reliance on a forged deed (see Marden, 160 NY at 51; see also Cruz v Cruz, 37 AD3d 754, 754 [2d Dept 2007] [“A deed based on forgery or obtained by false pretenses is void ab initio, and a mortgage based on such a deed is likewise invalid”]; Jiles v Archer, 116 AD3d 664, 666 [2d Dept 2014] [“If a document purportedly conveying a property interest is void, it conveys nothing, and a subsequent bona fide purchaser or bona fide encumbrancer for value receives nothing”]; 2-15 Warren’s Weed, New York Real Property § 15.09 [“If the conveyance is void, the purchaser or encumbrancer will not enjoy any of the rights of a bona fide purchaser”]; 43A NY Jur 2d, Deeds § 218 [“a forged deed is null and void, and conveys nothing, and a purchaser or mortgagee from the grantee, even for value and without notice of the forgery, will not be protected”]).

Moreover, New York’s recording statute (Real Property Law § 291) does not apply to a forged deed (see Albany County Sav. Bank v McCarty, 149 NY 71, 74 [1896]; Grosch v Kessler, 231 App Div 870, 870 [2d Dept 1930]). Neither can recording a forged deed transform it into a document with legal authority to establish a valid property interest, for it “does not change the legal rights of any one [sic]” (Marden, 160 NY at 56). “The fact that a false and fabricated writing of this character is deposited in a public office for record, and is actually recorded, can add nothing to its legal efficacy” (id.). The recording statute applies to “genuine instruments and not to forged ones” (id., citing Albany County Sav. Bank, 149 NY 71).

Given the clarity of our law that a forged deed is void ab initio, and that it is a document without legal capacity to have any effect on ownership rights, the question remains whether a claim challenging a conveyance or encumbrance of real property based on such deed is subject to a time bar. Our case law permits only one answer: a claim against a forged deed is not subject to a statute of limitations defense.

As this Court held in Marden, a forged deed is void, not merely voidable. That legal status cannot be changed, regardless of how long it may take for the forgery to be uncovered. As this Court made clear in Riverside Syndicate, Inc v Munroe, a statute of limitations “does not make an agreement that was void at its inception valid by the mere passage of time” (10 NY3d 18, 24 [2008], citing Pacchiana v Pacchiana, 94 AD2d 721 [2d Dept 1983]). Consequently, plaintiff may seek to vacate the deed and defendant’s encumbrance upon the property. If, as plaintiff claims, the deed is a forgery, then it was never valid and Tonya lacks title to Gogins’s half-interest in the property based on the “corrected” deed.

Indeed, this is the prevailing approach in other jurisdictions (see e.g. Moore v Smith-Snagg, 793 So 2d 1000, 1001 [Fla Dist Ct App, 5th Dist 2001] [“(o)f course, there is no statute of limitations in respect to the challenge of a forged deed, which is void ab initio” (emphasis omitted)]; see also Wright v Blocker, 144 Fla 428, 432-436, 198 So 88, 90-91 [1940]). The high court of West Virginia, for example, has observed that “there is no statute of limitations regarding void deeds” (MZRP, LLC v Huntington Realty Corp., 2011 WL 12455342, *4, 2011 W Va LEXIS 240, *13 [Mar. 10, 2011, No. 35692] [void tax deed]), while the high court of Idaho held that “[b]ecause [a] lease agreement was void ab initio, it could be challenged at any time” (Thompson v Ebbert, 144 Idaho 315, 318, 160 P3d 754, 757 [2007] [attempted lease void based on a lack of authority to lease only a portion of the property]).

III.

Defendant BOA contends that plaintiffs claim is time-barred because forgery is a category of fraud, and, like any other claim based on fraud, an action challenging a forged deed is subject to the limitations period of CPLR 213 (8). That conclusion cannot be squared with our decisions in Marden and Riverside Syndicate, nor with general principles of real property law. Nor is it supported by compelling policy reasons. On the contrary, our long-standing commitment to the protection of ownership interests and the integrity of our real property system favors the continued treatment of challenges to forged deeds as distinct from other claims, and exempt from a statute of limitations defense.

Most notably, defendant wholly fails to address Marden and the well-established authority distinguishing forged deeds as void ab initio from instruments that are merely voidable. Instead, defendant, and our dissenting colleagues, seek to distinguish Riverside as a case about illegal contracts, not deeds, and thus should be limited to its subject matter, namely instruments void at inception due to illegality. We are unpersuaded. The fact that Riverside involved an illegal agreement is no basis to limit its analysis as regards the statute of limitations. Instead, the language and analysis employed in Riverside make clear that the holding was based on a rule that is generally applicable to claims involving void documents, including, obviously, forged deeds.

First, Riverside relied on “the nature of a statute of limitations” (10 NY3d at 24). That, of course, refers to the statute’s function as barring stale claims. In contrast, a statute of limitations cannot grant legal significance to a document expressly rejected under the law; it cannot be deployed to validate what the law has never recognized.

Second, Riverside cited Pacchiana, a case that exempted a void document from the application of the statute of limitations, and in doing so distinguished between void and voidable documents, highlighting the significance of that legal distinction. In Pacchiana, the Appellate Division held that where a prenuptial agreement fails to comply with real property rules regarding the proper recording of a conveyance, the agreement is void at its inception and cannot be subject to the statute of limitations (Pacchiana, 94 AD2d at 722). Although the case involved a contract and not a forged deed, the Court nevertheless relied on statutory rules of real property conveyance, not general public policy against illegal contracts, in finding the prenuptial agreement to be void {id. at 721). Given this Court’s reliance on Pacchiana, the Riverside decision clearly applied a rule of general applicability regarding void documents to the specific facts of that case. There is, then, no reason to limit Riverside’s reach, or forgo application of the same general rule — a document void at its inception has no effect and cannot be subject to a statute of limitations — to cases involving a forged deed.

The defendant notes that the agreement in Riverside violated the Rent Stabilization Code, and because of its illegal nature violated public policy. However, defendant ignores the significant public policies underlying our real property system, which have animated the previously discussed real property rules that treat forged deeds as a legal nullity. The public policy concerns that underlie prohibitions on enforcement of illegal contracts are surely no more consequential than those applicable to forged deeds, and a forged deed is no less offensive to our legal system than an illegal contract. As the Court stated in Marden, a forged deed is essentially “[a] false making, with an evil design” (160 NY at 55). Indeed, New York has determined that forgery is sufficiently morally unacceptable and dangerous to society that our State has criminalized forgery, subjecting wrongdoers to potential criminal prosecution with the attendant risk of incarceration (see Penal Law §§ 170.05, 170.10, 170.15). Therefore, we will not impose statutes of limitations on forged deeds because the resulting prejudice to the “rights of the true owner of real estate” only “open[s] the door for the destruction of all titles, and make[s] it much easier for the criminal to purloin real than personal property” (see Marden, 160 NY at 57-58).

Having failed to persuade based on our case law, the defendant argues that a statute of limitations is necessary to protect the sanctity of real property titles. However, section 213 (8) contains a two-year discovery rule, which potentially extends the life of a claim years beyond the six-year statutory term. As a consequence, land titles already are subject to challenge, based on a forged deed, far into the future.

Moreover, in a line of cases including Ford v Clendenin (215 NY 10 [1915]) and the more recent Orange & Rockland Util, v Philwold Estates (52 NY2d 253 [1981]), we recognized that certain property interests are exempt from any time limit. This Court observed in Ford that

“an owner in possession has a right to invoke the aid of a court of equity at any time while he is so the owner and in possession, to have an apparent, though in fact not a real incumbrance discharged from the record and such a right is never barred by the Statute of Limitations. It is a continuing right which exists as long as there is an occasion for its exercise” (215 NY at 16; see also Orange & Rock-land Util., 52 NY2d at 261, citing Ford).

Similarly, this Court held in Cameron Estates, Inc. v Peering that the statute of limitations did not bar plaintiffs action challenging the forced sale of property where plaintiff paid all required taxes, rendering the underlying tax deed void ab initio (308 NY 24, 31 [1954]). Thus, contrary to defendant’s argument, there are property claims that cannot be extinguished by the passage of time.

Our dissenting colleagues argue that a statute of limitations is necessary in order to avoid litigation over claims which are difficult to defend because of the mere passage of time (see dissenting op at 234). As we have stated, the discovery provision in the statute allows for this possibility (see CPLR 213 [8]). In any case, the stale claims alluded to are just as likely to be difficult to prove, reducing the number of claims that will be filed when evidence has been destroyed and memories have faded. Moreover, the argument for bringing finality to potentially stale claims fails to make the case for why the desire for repose is any more significant than the need to ferret out forged deeds and purge them from our real property system. As the law makes clear, a forged deed has no legal significance and cannot convey title, therefore there is no reason to impose barriers to those who seek to vacate such deed as null and void.

IV

For over a century, since this Court’s decision in Marden, a forged deed has been treated in New York as void ab initio. As the Court recognized in Riverside, a statute of limitations cannot validate what is void at its inception. Therefore, a void deed is not subject to a statutory time bar. The defendant’s arguments are in contravention of Marden and Riverside, and would subject a claim of deed forgery to a six-year statute of limitations under CPLR 213 (8), with the result that a forged deed may be relied upon to convey title and for purposes of encumbering real property. However, under well-established real property principles, because only a holder of legal title may convey an interest in real property, no property interest can be conveyed by a forged deed, and no person may be a bona fide purchaser of real estate on the force of such deed. Moreover, our recording statute does not apply to a forged deed, with the consequence that recording a forged deed cannot transfer title. We, thus, decline the defendant’s invitation to unsettle this established doctrine to the detriment of our State’s real property recording system.

To adopt defendant’s position is to permit a forged deed to accomplish, by the mere passage of time, what has always been forbidden — the encumbrance and transfer of title. Neither law nor public policy nor common sense dictates such outcome. Defendant fails to present a compelling reason to overturn or ignore our prior case law in the area of real property because as we have recognized, “parties in business transactions depend on the certainty of settled rules, fin real property more than any other area of the law, where established precedents are not lightly to be set aside’ ” (172 Van Duzer Realty Corp. v Globe Alumni Student Assistance Assn., Inc., 24 NY3d 528, 535 [2014], citing Holy Props., v Cole Prods., 87 NY2d 130, 134 [1995]). No less so with respect to forged deeds, because landowners, banks, mortgagees, insurers, and a myriad of others depend on the simple rule that a forged deed is a legal nullity that cannot divest ownership or serve to encumber real property.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed and defendant Bank of America, N.A.’s motion to dismiss the complaint against it pursuant to CPLR 3211 (a) (5) denied.

Chief Judge Lippman

(dissenting). I believe that plaintiffs action against defendant Bank of America, seeking to invalidate the Bank’s mortgage interest in real property conveyed by an allegedly forged deed, is subject to the six-year statute of limitations under CPLR 213 (8). Because plaintiff did not commence this action within either the applicable six-year limitation period, or two-year discovery window provided by the statute, I would find that the claim is time-barred. In 1996, defendant Dorothy Lewis and her brother, Percy Lee Gogins, Jr., inherited property located at 1900 Bergen Street in Brooklyn. They took title to the property as tenants in common, each with an undivided one-half interest. Dorothy Lewis subsequently conveyed her interest in the property to her daughter, defendant Tonya Lewis, by quitclaim deed dated May 21, 2000. On February 14, 2001, Tonya Lewis recorded a “correction deed” dated December 14, 2000. That document, which plaintiff alleges is a forgery, purported to correct the earlier quitclaim deed by adding Percy Gogins as an additional grantor, thereby conveying the entire property to Tonya Lewis. Percy Gogins died in March 2001.

Plaintiff Dorothy Faison, Percy Gogins’ daughter, commenced a pro se action in Supreme Court in September 2002, alleging that the Lewis defendants had engaged in a scheme to defraud by forging and filing a false deed. The complaint was dismissed under CPLR 3211 (a) because plaintiff lacked capacity to maintain it, as she had not been appointed the administrator of her father’s estate, and for failure to state a cause of action upon which relief could be granted.

Years passed, during which plaintiff took no further action. In December 2009, defendant Tonya Lewis obtained a mortgage on the property from defendant Bank of America in the amount of $269,332. Soon thereafter, plaintiff petitioned Surrogate’s Court for a decree appointing her the administrator of Percy Gogins’ estate. In connection with that proceeding, plaintiff submitted an affidavit of delay, in which she represented that she had discovered the existence of the forged deed “[a]t some time in or around 2003.” Plaintiff was appointed the administrator of her father’s estate in July 2010.

The following month, plaintiff commenced this action, in her capacity as administrator of Gogins’ estate, against the Lewis defendants, Bank of America and defendant Mortgage Electronic Registration Systems, Inc. (as nominee for Bank of America). According to the complaint, plaintiff is a resident of the State of Georgia. Plaintiff alleged that Gogins had never authorized the transfer of his ownership interest in the property and that the December 2000 correction deed was a forgery. She sought a judgment declaring the deed null and void, directing defendant Tonya Lewis to disgorge half of all rents and profits generated by the premises, and setting aside and canceling the mortgage. The courts below granted Bank of America’s motion to dismiss the action under CPLR 3211 (a) (5) on statute of limitations grounds.

The majority finds that plaintiffs action should not have been dismissed as untimely — indeed, that it is not subject to any statute of limitations whatsoever — because the allegedly forged deed was void and therefore incapable of conveying any property interest. Since the void deed is a nullity, the majority finds that a property owner has no obligation to take prompt legal action to enforce her rights. The majority correctly relies on Marden v Dorthy (160 NY 39 [1899]) for the proposition that a forged deed is void at its inception (see majority op at 224). We agree with this long-held position. However, Marden is not a statute of limitations case and, therefore, reliance on its authority is inappropriate at this procedural juncture.

While a deed proved to have been a forgery cannot operate to affect ownership rights, this does not compel the result that the opportunity to challenge such conveyance is without limit. “Statutes of Limitation are essentially arbitrary time limitations barring the commencement of an action, and they reflect the legislative judgment that individuals should be protected from stale claims” (McCarthy v Volkswagen of Am., 55 NY2d 543, 548 [1982]). While statutes of limitations foreclose a party’s claim, they do not extinguish a party’s underlying right (see Hulbert v Clark, 128 NY 295, 298 [1891]; see also Siegel, NY Prac § 34 at 44 [5th ed 2011] [“The theory of the statute of limitations generally followed in New York is that the passing of the applicable period does not wipe out the substantive right; it merely suspends the remedy”]).

“In examining the policies underlying Statutes of Limitation, this Court has emphasized both a defendant’s interest in repose and ‘in defending a claim before [the] ability to do so has deteriorated through passage of time.’ We have also taken note of considerations of judicial economy and possible plaintiff fraud where excessive factual inquiries would be necessary. Balanced against these considerations is the injured person’s interest in having a reasonable opportunity to assert a claim” (Blanco v American Tel. & Tel. Co., 90 NY2d 757, 773-774 [1997] [citations omitted]).

I would conclude that an action to invalidate a forged deed is subject to a statute of limitations defense. Forgery is closely related to and essentially a type of fraud. We have previously observed that forgery was “defined by the common law to be the fraudulent making of a writing to the prejudice of another’s rights, or the making malo animo of any written instrument for the purpose of fraud and deceit” (Marden, 160 NY at 53 [citations omitted]). It is therefore logical and reasonable to apply the statute of limitations for fraud to forgery claims (see e.g. Piedra v Vanover, 174 AD2d 191, 194 [2d Dept 1992]). Under CPLR 213 (8), such a cause of action must be commenced within “the greater of six years from the date the cause of action accrued or two years from the time the plaintiff . . . discover^] the fraud, or could with reasonable diligence have discovered it.” The application of the statute of limitations here has the benefit of imposing some limit on the time in which claims can be brought, while also leaving a discovery window for forgery claims which, like fraud, can be concealed from the plaintiff.

A contrary rule under which plaintiff would prevail entails no statute of limitations applicable to an action alleging forgery. We have never so held. To the contrary, the CPLR imposes a six-year limitations period for “action [s] for which no limitation is specifically prescribed by law” (CPLR 213 [1]). And, despite the majority’s repeated invocation of the well-settled principle that a forged deed is a void instrument, not one of the cases it cites addresses the timeliness of this type of action. Rather, New York courts that have considered the issue have consistently applied a six-year statute of limitations to situations like this one (see Vilsack v Meyer, 96 AD3d 827 [2d Dept 2012]; Shalik v Hewlett Assoc., L.P., 93 AD3d 777 [2d Dept 2012]; JP Morgan Chase Bank, N.A. v Kalpakis, 91 AD3d 722 [2d Dept 2012]; Coombs v Jervier, 74 AD3d 724 [2d Dept 2010]; Georgiou v Panayia of Mtns. Greek Orthodox Monastery, Inc., 16 AD3d 998 [3d Dept 2005]; Piedra, 174 AD2d 191; see also Endervelt v Slade, 194 AD2d 305 [1st Dept 1993]).

Indeed, the absence of any limitations period could result in the commencement of actions that the passage of time makes exceedingly difficult, or impossible, to defend; a plaintiff could, for instance, bring the claim long after the relevant events, but just after the death of the crucial defense witness. Notably, although the majority observes that Florida technically imposes no statute of limitations in this context, that state has the “Marketable Record Title Act,” which, with certain exceptions, essentially deems properly recorded deeds to be valid after a 30-year period (see Fla Stat § 712.02; H & F Land, Inc. v Panama City-Bay County Airport & Indus. Dist., 736 So 2d 1167, 1172 [Fla 1999] [“a root of title based upon a forged deed would prevail even over an otherwise entirely valid deed recorded earlier in the chain of title”]; Marshall v Hollywood, Inc., 236 So 2d 114, 120 [Fla 1970]).

In analogous circumstances to those presented here, we have required individuals to abide by applicable limitations periods (see e.g. Ford v Clendenin, 215 NY 10, 17 [1915] [applying a 10-year statute of limitations to an action in equity to quiet title by one who was out of possession]; 8-87 Warren’s Weed, New York Real Property § 87.45; Hechter v New York Life Ins. Co., 46 NY2d 34, 39 [1978] [applying a six-year statute of limitations to a UCC claim “against a bank for collecting an instrument over a forged indorsement”]). And, while forgery is subject to criminal liability, there is also a statute of limitations applicable to those crimes (see CPL 30.10 [2] [b], [c]; Penal Law §§ 170.05, 170.10, 170.15 [five years for the felony offenses of first- and second-degree forgery and two years for the misdemeanor offense of third-degree forgery]).

Plaintiff asserts that the decision below conflicts with our holding in Riverside Syndicate, Inc. v Munroe (10 NY3d 18 [2008]), wherein we determined that an agreement to pay illegal rent for a rent-stabilized apartment was void and unenforceable by either party. The agreement, under which the tenants agreed to waive the benefit of rent stabilization in exchange for the ability to use the apartment as a second home, was deemed to be violative of public policy and contrary to the express terms of the Rent Stabilization Code (see Riverside Syndicate, 10 NY3d at 22). We rejected the argument that the landlord’s action, seeking a declaration that the agreement was void, was barred by the six-year statute of limitations pertaining to contractual obligations or liability (see Riverside Syndicate, 10 NY3d at 24; CPLR 213 [2]). We noted that “[t]his action [was] not one ‘upon a contractual obligation or liability’ ” for which the six-year limitations period was set forth in CPLR 213 (2), but was “to declare that no valid contractual obligations ever existed” (Riverside Syndicate, 10 NY3d at 24).

Riverside is unlike the situation presented here. It is well settled that “illegal contracts, or those contrary to public policy, are unenforceable and that the courts will not recognize rights arising from them” (Szerdahelyi v Harris, 67 NY2d 42, 48 [1986]). “[T]he law ‘will not extend its aid to either of the parties [to an illegal contract]’ or ‘listen to their complaints against each other, but will leave them where their own acts have placed them’ ” (Stone v Freeman, 298 NY 268, 271 [1948], quoting Schermerhorn v Talman, 14 NY 93, 141 [1856]). Plaintiffs claim, seeking to invalidate an allegedly forged deed, does not involve the same public policy concerns. In contrast with the situation presented by parties attempting to enforce an illegal contract — which only involves those parties — in a dispute over real property ownership rights, the rights of an unlimited number of innocent purchasers who rely on the transfer documents in a chain of title can be affected by a forged deed.

Plaintiff also relies upon Cameron Estates, Inc. v Deering (308 NY 24 [1954]), in which we held that the statute of limitations could not be invoked to prevent a taxpayer from challenging a void tax deed. That case, however, is also inapt. The plaintiff in Cameron Estates had paid the taxes on the property and brought the action to remove a cloud on his title.

“When void tax deeds are attempted to be made prima facie evidence of the regularity of the proceedings, equity will interfere to permit removal as a cloud on title which right may be invoked by the owner in possession at any time as ‘such a right is never barred by the Statute of Limitations’ ” (Cameron Estates, 308 NY at 31 [citations omitted]).

Plaintiff does not claim to be in possession of the property and it is therefore unnecessary to address the consequences of what would flow from such fact.

The stability of the State’s real property system is plainly important and the idea of losing one’s property because of a forged deed is, of course, offensive. But it is no more so than the plight of any innocent plaintiff being barred from attempting to obtain relief from an injury by failing to commence an action within the time limits set by the legislature. Indeed, it is the prospect of no repose, particularly where the property may have changed hands since the allegedly forged deed, that would appear to endanger the stability of real property transactions. The majority’s rule permits a person who discovers a forged deed to sit on his or her rights and commence an action at any time. Thus, a plaintiff could do nothing until it became impossible to defend a claim of forgery, thereby making title to real property subject to reversal indefinitely. Contrary to the majority’s position that its rule will foster security, in fact, the absence of a statute of limitations will result in just the opposite because, under the majority’s holding, every deed is subject to attack at any time. Limitation periods can sometimes work a hardship, but they are set for a reason and particularly where, as here, a discovery window applies, there is no compelling reason to exempt an entire cause of action from any time limit at all.

Here, the deed was allegedly forged in December 2000. In addition, according to her Surrogate’s Court submission, plaintiff had been aware of the deed no later than 2003 (indeed, a prior action was commenced in Sept. 2002). Since, in this circumstance, the two years afforded by the discovery rule would not have extended the six-year statute of limitations, I would find that this action as against the Bank, which was not commenced until August 2010, was untimely and was properly dismissed by the courts below.

Judges Read, Pigott and Fahey concur; Chief Judge Lipppman dissents in an opinion in which Judges Abdus-Salaam and Stein concur.

Order, insofar as appealed from, reversed, with costs, and defendant Bank of America, N.A.’s motion to dismiss the complaint against it pursuant to CPLR 3211 (a) (5) denied.

      . We note that the Appellate Division order is final only as to defendant BOA.

      . In their answer, Lewis and Tonya assert that the deed is valid because “Percy Lee Gogins . . . authorize [d] and consented to the transfer and conveyance of his ownership interest in the Premises to Tonya Lewis.”

      . Our dissenting colleagues contend that innocent purchasers who rely on the chain of title will be adversely affected if no statute of limitations applies to forged deed claims (see dissenting op at 236). However, many individuals rely on the validity of the recording system. The dissenters fail to recognize the great harm done if forged deeds may be permitted to obtain legal effect simply through the passage of time. Moreover, even under the dissenters’ approach, a forged deed claim may still be timely after six years, if filed pursuant to the discovery rule of CPLR 213 (8).

      . Our dissenting colleagues find the discovery rule advantageous because it allows a victim of fraud to pursue a claim beyond the six-year statute of limitations prescribed by the CPLR (see dissenting op at 234). That possibility of filing a claim years, if not decades, after the deed is forged is the very reason why the defendant and dissenters’ arguments for a statute of limitations are underwhelming.

      . In her reply brief, plaintiff concedes, and indeed affirmatively asserts, that forged deed claims are subject to a laches defense. This is generally the case in states that consider forged deeds void and thus apply no statute of limitations to bar actions to invalidate such deeds (see e.g. Robinson v Estate of Harris, 391 SC 114, 131, 705 SE2d 41, 50 [2011]). On this appeal, however, we need not consider laches because we must accept as true plaintiffs claims that she diligently sought to vacate the deed on forgery grounds (see Martinez, 84 NY2d at 87-88).

      . Our dissenting colleagues argue that the loss of property suffered by a plaintiff whose forged deed claim is time-barred is no more offensive than the loss experienced by any other plaintiff whose claim is foreclosed as untimely (see dissenting op at 236). This is no point at all because it ignores the fact that forged deeds not only harm the true owner, but also undermine the integrity of our real property system. It is a harm so substantial that we have determined to avoid the effects of a forged deed by denying it any legal significance. It is, in the words of Marden, “no thing[ ]” (Marden, 160 NY at 56).

       The majority’s reliance on Riverside’s reference to Pacchiana v Pacchiana (94 AD2d 721 [2d Dept 1983]) appears to be misplaced. That case did not rely on statutory rules of real property conveyance to find the prenuptial agreement void. Rather, the opinion merely referenced real property rules in addressing the plaintiffs claim that the agreement had not been executed in conformity with the acknowledgment requirements for such agreements contained in Domestic Relations Law § 236 (B) (3) (see Pacchiana, 94 AD2d at 721-722; see also EPTL 5-1.1 [f] [2]; Domestic Relations Law § 236 [B] [3]).


source: Caselaw Access Project

author: Stein, J. Chief Judge Lippman

license: Public Domain

text:
    [32 NE3d 930, 10 NYS3d 495]
    The People of the State of New York, Respondent, v Sergio Rodriguez, Appellant.
    Argued March 23, 2015;
    decided May 7, 2015

      Robert S. Dean, Center for Appellate Litigation, New York City (Susan H. Salomon of counsel), for appellant.
    I. Notwithstanding a sentencing remand order from the Appellate Division, which this Court affirmed, CPL 430.10 barred the resentencing court from changing from concurrent to consecutive, thus to appellant’s detriment, two of his then extant and lawful sentences, which he had begun to serve. (People v Stuart, 123 AD2d 46; Matter of Brusco v Braun, 84 NY2d 674; Matter of Bernstein Family Ltd. Partnership v Sovereign Partners, L.P., 66 AD3d 1; People v Junco, 43 AD2d 266, 35 NY2d 419; People v Romain, 288 AD2d 242; People v Kadry, 63 AD3d 856; Courtesy Sandwich Shop v Port of N.Y. Auth., 12 NY2d 379; People v Richardson, 100 NY2d 847; People v Adkinson, 88 NY2d 561; People v Allende, 78 AD3d 553.) II. The court’s imposition of consecutive sentences violated Penal Law § 70.25 (2) and federal and state double jeopardy and due process. (People v Wright, 19 NY3d 359; People v Laureano, 87 NY2d 640; People v Ramirez, 89 NY2d 444; People v Frazier, 16 NY3d 36; People v Yong Yun Lee, 92 NY2d 987; People v Tanner, 30 NY2d 102; People v Battles, 16 NY3d 54; People v Parks, 95 NY2d 811; People v LaSalle, 95 NY2d 827.) III. The court’s cynical remarks concerning appellant’s uncontested rehabilitative achievements infected the resentencing proceeding, and the 40-year aggregate sentence imposed, with error. (People v Kuey, 83 NY2d 278; People v Williams, 239 AD2d 269; People v Chen, 176 AD2d 628; People v Chambers, 123 AD2d 270; People v Hiemel, 49 AD2d 769; People v Brown, 26 Misc 3d 1204[A], 2010 NY Slip Op 50000[U], 84 AD3d 586; People v Naranjo, 89 NY2d 1047; People v Cronin, 60 NY2d 430 People v LaSalle, 95 NY2d 827; People v Schrader, 23 AD3d 585.)

      Cyrus R. Vance, Jr., District Attorney, New York City (Eleanor J. Ostrow and Hilary Hassler of counsel), for respondent.
    I. The remedial action that the Appellate Division authorized the resentencing court to take was not barred by CPL 430.10, as this Court previously determined. (People v Yannicelli, 40 NY2d 598; People v Richardson, 100 NY2d 847; People v Adkinson, 88 NY2d 561; People v Young, 94 NY2d 171.) II. The imposition of consecutive sentences on the first-degree assault and first-degree robbery-by-display convictions complied with Penal Law § 70.25 (2). (People v Arroyo, 93 NY2d 990; People v Laureano, 87 NY2d 640; People v Day, 73 NY2d 208; People v Rosas, 8 NY3d 493; People v Taveras, 12 NY3d 21; People v Brown, 80 NY2d 361; People v Truesdell, 70 NY2d 809; People v Frederick, 14 NY3d 913; People v Tanner, 30 NY2d 102; People v McKnight, 16 NY3d 43.) III. Defendant’s claim that the court’s remarks about defendant’s prison conduct “infected” the resentencing proceeding with error is unpreserved and utterly meritless. (People v Nieves, 2 NY3d 310; People v Oliver, 63 NY2d 973; People v Kuey, 83 NY2d 278; People v Hemmings, 2 NY3d 1; People v Young, 94 NY2d 171; People v Farrar, 52 NY2d 302; People v Naranjo, 89 NY2d 1047; People v Outley, 80 NY2d 702; People v Day, 73 NY2d 208.)
   OPINION OF THE COURT

Stein, J.

On defendant Sergio Rodriguez’s prior appeal, we held that CPL 470.20 authorized the Appellate Division to remit the matter to the sentencing court for consideration of whether one of defendant’s robbery sentences should be modified to run consecutively in light of the appellate court’s correction of the unlawful imposition of consecutive sentences with respect to his assault and attempted murder convictions (see People v Rodriguez, 18 NY3d 667, 669-671 [2012]). Therefore, on this appeal, we are constrained to hold that the sentencing court acted within its discretion — derived from that remittal — when it modified defendant’s sentence in accordance with the Appellate Division’s directive. We further conclude that the sentencing court’s imposition of consecutive sentences for defendant’s convictions of first-degree assault and first-degree robbery comports with Penal Law § 70.25 (2). We, therefore, affirm.

L

One evening in May 2007, defendant and two other men stopped the victim on a street in Manhattan. Defendant gestured with a gun and demanded that the victim hand over a gold chain that he was wearing around his neck. As the victim attempted to comply by lifting the chain, defendant shot him in the knee. Despite the victim’s continued efforts to remove his chain, defendant shot him twice more — once in the torso and, as the victim fell, again in his back. One of defendant’s accomplices then removed the necklace and the victim’s cell phone from his person. The victim survived, but sustained life-threatening injuries requiring extensive rehabilitation and causing lasting disability.

Following a jury trial, defendant was convicted of attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]), assault in the first degree (Penal Law § 120.10 [1]), two counts of robbery in the first degree (Penal Law § 160.15 [1], [4]), and robbery in the second degree (Penal Law § 160.10 [1]). Commenting on the gratuitously violent nature of the crime and defendant’s prior criminal history, the court sentenced him, as a second violent felony offender, to determinate terms of: 25 years on the attempted murder count; 15 years on the first-degree assault count; 25 years for each count of first-degree robbery; and 15 years for the sole count of robbery in the second degree. The sentencing court directed that the assault sentence run consecutively to the attempted murder sentence, and that the remaining sentences run concurrently, resulting in an aggregate term of 40 years’ imprisonment, followed by five years of postrelease supervision.

Upon defendant’s appeal, the People conceded that the imposition of consecutive sentences for defendant’s assault and attempted murder convictions violated Penal Law § 70.25 (2) (see People v Laureano, 87 NY2d 640, 643 [1996]). The Appellate Division therefore modified the judgment by directing that those sentences be served concurrently, resulting in an aggregate term of 25 years in prison (People v Rodriguez, 79 AD3d 644, 644 [1st Dept 2010], affd 18 NY3d 667 [2012]). Additionally, the Appellate Division remanded the matter for resentencing to allow the court to “restructure the sentences to arrive lawfully at the aggregate sentence which it clearly intended to impose upon defendant” (79 AD3d at 645).

Defendant appealed to this Court, arguing that the Appellate Division’s remittal violated CPL 430.10, which prohibits a sentencing court from modifying a lawful sentence once it has commenced. Defendant also contended that the remaining counts must run concurrently pursuant to Penal Law § 70.25 (2). Although we determined that it would be premature, at that juncture, to address the propriety of running the individual counts consecutively, this Court held that the Appellate Division’s remittal did not violate CPL 430.10 because the corrective action taken by the Appellate Division fell within that Court’s authority as embodied in CPL 470.20 (see Rodriguez, 18 NY3d at 669-671). Thus, we affirmed the Appellate Division order.

At resentencing, defendant maintained that CPL 430.10 prohibited the court from realigning his sentences and that Penal Law § 70.25 (2) required the imposition of concurrent sentences for each count. Defendant also proffered evidence of his good behavior and progress while incarcerated in support of his argument that, even if consecutive sentencing was permissible, mitigation of his previously-imposed 40-year aggregate term of imprisonment was appropriate.

The sentencing court rejected defendant’s argument that CPL 430.10 was a legal impediment to the modification of his sentences. Further, although the court acknowledged defendant’s positive efforts while incarcerated, it concluded that consecutive sentences were warranted due to the severity of the victim’s injuries and the heinous nature of defendant’s crimes. Thus, the. court modified defendant’s sentences by running his sentence for first-degree assault (based on causing serious physical injury with a deadly weapon) consecutively to his sentence for first-degree robbery involving the display of a firearm. Consequently, after resentencing, the aggregate term of defendant’s sentences was, again, 40 years, plus five years of postrelease supervision.

The Appellate Division affirmed (112 AD3d 488 [1st Dept 2013]), and a Judge of this Court granted defendant leave to appeal (22 NY3d 1202 [2014]).

IL

Defendant erroneously claims that we limited our prior decision in this case to the narrow issue of whether the Appellate Division’s remittal was barred by CPL 430.10, thereby leaving open the question of whether, upon that remittal, CPL 430.10 prohibited the sentencing court from modifying defendant’s sentences. To the contrary, the clear import of our holding that CPL 470.20 provided the Appellate Division with the discretion to direct realignment of defendant’s legally imposed sentences was that, by extension, the sentencing court was authorized to take such corrective action because it was specifically empowered to do so by the Appellate Division (see Rodriguez, 18 NY3d at 670). We are bound by that holding (see generally People v Peque, 22 NY3d 168, 194 [2013], cert denied sub nom. Thomas v New York, 574 US —, 135 S Ct 90 [2014]; People v Taylor, 9 NY3d 129, 148 [2007]). Accordingly, the sentencing court’s realignment of defendant’s sentences did not violate CPL 430.10.

Defendant also argues that the imposition of consecutive sentences on his assault and robbery convictions was unlawful because the crimes were comprised of a single act. Penal Law § 70.25 (2) mandates that concurrent sentences be imposed for “two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other.” We have held that, “[t]o determine whether consecutive sentences are permitted, a court must first look to the statutory definitions of the crimes at issue” to discern whether the actus reus elements overlap (People v Battles, 16 NY3d 54, 58 [2010], cert denied 565 US —, 132 S Ct 123 [2011]; see People v Frazier, 16 NY3d 36, 40 [2010]; Laureano, 87 NY2d at 643). Even where the crimes have an actus reus element in common, “the People may yet establish the legality of consecutive sentencing by showing that the ‘acts or omissions’ committed by defendant were separate and distinct acts” (Laureano, 87 NY2d at 643; see People v McKnight, 16 NY3d 43, 48 [2010]; People v Ramirez, 89 NY2d 444, 451 [1996]). Conversely, where “the actus reus is a single inseparable act that violates more than one statute, [a] single punishment must be imposed” (Frazier, 16 NY3d at 41 [internal quotation marks, citations and emphasis omitted]). The People bear the burden of establishing the legality of consecutive sentencing by “identifying the facts which support their view” that the crimes were committed by separate acts (Laureano, 87 NY2d at 644; see McKnight, 16 NY3d at 51).

Even if, as defendant contends, the statutory elements of his robbery and assault convictions overlap, the People have demonstrated in this case that the assault count and the robbery count at issue were committed by separate and distinct acts. According to the victim’s trial testimony, defendant gestured with the firearm and demanded that the victim relinquish his chain. The victim was acquiescing when, in an action completely unrelated to any use of force necessary to overcome resistance or compel compliance in order to effectuate the robbery, defendant repeatedly shot the victim.

Although defendant is indeed correct that the assault occurred before the robbery was completed, courts retain discretion to impose consecutive sentences “ ‘when separate offenses are committed through separate acts, though they are part of a single transaction’ ” (People v Azaz, 10 NY3d 873, 875 [2008], quoting People v Brown, 80 NY2d 361, 364 [1992]). The robbery was comprised of defendant’s acts of motioning with the firearm and demanding the chain, together with his accomplice’s taking of the victim’s property (see Penal Law §§ 160.00, 160.15 [4]). In contrast, the act of assault occurred when defendant shot the victim with the requisite intent (see Penal Law § 120.10 [1]). On this record, the mere fact that the shooting interrupted, rather than succeeded, the theft does not render indivisible these separable acts (see Ramirez, 89 NY2d at 454). That is, because the “entire tenor of the robbery . . . was distinct from the life-threatening assault!,] . . . the violent and repeated shooting of [the victim] was a separate and distinct act” from the forcible theft of his property (id.; see also People v Tanner, 30 NY2d 102, 108 [1972]). Moreover, since the jury need not have concluded under the instructions given that the assault occurred in furtherance of the robbery, as compared to merely during the course thereof, we reject defendant’s claim that the robbery and assault were necessarily a single act because he was also charged with and convicted of robbery under Penal Law § 160.15 (1) (compare People v Parks, 95 NY2d 811, 815 [2000]).

Defendant’s remaining contention is unpreserved.

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

Chief Judge Lippman

(dissenting). When this case was previously before us, the Court characterized its own holding as being limited to “the narrow issue” of whether the Appellate Division was precluded by CPL 430.10 from remitting a matter to Supreme Court for resentencing in the circumstances presented (see 18 NY3d 667, 671 [2012]). The Court stated that it would be premature to address whether Supreme Court, upon remittal, could impose anything other than concurrent sentences (see 18 NY3d at 670). What the opinion did not rule upon explicitly is whether Supreme Court had the authority to reconfigure defendant’s sentence.

Perhaps because that authorization was not granted, the majority determines that the “clear import” of the prior holding was that Supreme Court had such authority by virtue of the Appellate Division’s remittal under CPL 470.20. But the Court left for another day — today, after Supreme Court actually exercised that power — the legality of the sentence imposed by Supreme Court.

I believe that Supreme Court lacked the authority to restructure defendant’s sentence under CPL 430.10. The flaw in defendant’s initial sentence was that he was subject to consecutive terms of imprisonment for two offenses that had been committed through the same act (79 AD3d 644, 644-645 [1st Dept 2010]). When the Appellate Division corrected the illegality by ordering that those terms be served concurrently, defendant was subject to a lawful sentence. At that point, CPL 430.10 precluded Supreme Court — on remittal or otherwise— from further altering the length of any sentence that defendant had been serving since 2008 (see People v LaSalle, 95 NY2d 827, 829 [2000]; People v Yannicelli, 40 NY2d 598, 602 [1976]).

Because Supreme Court lacked the authority to restructure defendant’s sentence by running any of these sentences consecutively to one another, I do not consider whether consecutive sentences could be lawfully imposed for the particular sentences at issue here.

Judges Read, Pigott, Rivera and Abdus-Salaam concur; Chief Judge Lippman dissents in an opinion in which Judge Fa-hey concurs.

Order affirmed.

       Indeed, the dissenters to our prior decision also interpreted our holding as deciding this issue, contending that the majority opinion erroneously held that CPL 470.20 “supplies . . . authorization” to trial and sentencing courts for modification of a sentence that CPL 430.10 does not otherwise provide (18 NY3d 667, 673 [2012, Lippman, Ch. J., dissenting]). Contrary to the dissent’s assertion herein, our previous statement that it was “premature” for us to determine whether any of the sentences could be run consecutively referred only to whether the imposition of such sentences would violate Penal Law § 70.25 (2), as we expressly stated later in that opinion (18 NY3d at 671-672).


author: Chief Judge Lippman. Read, J.

text:
    [32 NE3d 935, 10 NYS3d 500]
    The People of the State of New York, Appellant, v Jarrod Brown, Respondent.
    Argued March 24, 2015;
    decided May 14, 2015

      POINTS OF COUNSEL

      Richard A. Brown, District Attorney, Kew Gardens (.Danielle S. Fenn and John M. Castellano of counsel), for appellant.
    The 2011 conforming amendment to CPL 440.46 to reflect the new name of the Department of Corrections and Community Supervision did not expand the eligibility requirements of that section to include non-incarcerated, paroled defendants. (People v Paulin, 17 NY3d 238; People v Santiago, 17 NY3d 246; People v Williams, 19 NY3d 100; People v Kisina, 14 NY3d 153; Matter of Hawkins v Coughlin, 72 NY2d 158; People v Hale, 93 NY2d 454; People v Garson, 6 NY3d 604; People ex rel. Westchester Fire Ins. Co. v Davenport Trustees, 91 NY 574; People v Watson, 20 NY3d 182; People v Acevedo, 14 NY3d 828.)

      Seymour W. James, Jr., The Legal Aid Society, New York City (David Crow of counsel), for respondent.
    Parolees are eligible for resentencing under CPL 440.46 as amended in 2011 because they are “persons in the custody of the department of corrections and community supervision.” (People v Paulin, 17 NY3d 238; People v Sosa, 18 NY3d 436; Matter of Hawkins v Coughlin, 72 NY2d 158; People v Santiago, 17 NY3d 246; People ex rel. Korn v New York State Div. of Parole, 274 AD2d 439; Matter of Bellamy v New York State Div. of Parole, 274 AD2d 871; People v Santana, 117 AD3d 758; People v Pomales, 35 Misc 3d 444; People v Danton, 36 Misc 3d 898; People v Johnson, 36 Misc 3d 1239[A], 2012 NY Slip Op 51742[U].)
   OPINION OF THE COURT

Chief Judge Lippman.

The issue presented by this appeal is whether the 2011 amendments to CPL 440.46 expanded the class of defendants eligible for resentencing under the Drug Law Reform Act (DLRA) to include those who are on parole at the time resentencing is sought. We left this question open in People v Paulin (17 NY3d 238, 243 [2011]) and People v Santiago (17 NY3d 246, 247 [2011]), and now hold that the amendments did expand eligibility to parolees, and affirm the Appellate Division order (People v Brown, 115 AD3d 155 [2014]) upholding the resentencing of the paroled defendant under that provision.

In the summer of 2001, defendant sold cocaine to an undercover police officer in Queens. On May 30, 2002, defendant pleaded guilty to one count of third-degree criminal sale of a controlled substance, a class B felony, and was sentenced to an indeterminate prison term of 6 to 12 years. He was conditionally released on April 15, 2011, with a maximum expiration date of July 16, 2017.

While on parole for the instant offense, defendant moved for resentencing pursuant to CPL 440.46. The People opposed on grounds that he was ineligible for resentencing under that provision because he was not currently incarcerated. Defendant contended that he was eligible for relief due to the 2011 amendments to section 440.46, which now reflected the merged New York State Department of Correctional Services and New York State Division of Parole under a single agency — the New York State Department of Corrections and Community Supervision (DOCCS) (see L 2011, ch 62, § 1, part C, § 1, subpart B, § 79). On July 31, 2012, Supreme Court granted defendant’s motion for resentencing. The court concluded that the revised section 440.46 did “not distinguish between defendants who are incarcerated and those who are on parole but are not incarcerated.” The court resentenced defendant to a seven-year determinate prison term to be followed by three years of post-release supervision, making the maximum expiration date of his sentence July 16, 2012.

The Appellate Division unanimously affirmed holding that the plain language of section 440.46, when read together with Executive Law § 259-i (2) (b), meant that non-incarcerated defendants on parole were in the “custody” of DOCCS and, thus, were eligible for resentencing (People v Brown, 115 AD3d at 158). The Court further held that because CPL 440.46 was a remedial statute, it should be liberally construed (id. at 161). A Judge of this Court granted the People leave to appeal (People v Brown, 23 NY3d 961 [2014]), and we now affirm.

“[T]he governing rule of statutory construction is that courts are obliged to interpret a statute to effectuate the intent of the Legislature, and when the statutory language is clear and unambiguous, it should be construed so as to give effect to the plain meaning of the words used” (People v Williams, 19 NY3d 100, 103 [2012], quoting People v Finnegan, 85 NY2d 53, 58 [1995]). The language of CPL 440.46 (1) encompasses “[a]ny person in the custody of [DOCCS]” (emphasis added). A non-incarcerated parolee is within the “legal custody” (Executive Law § 259-i [2] [b]) of DOCCS. Thus, the plain meaning of CPL 440.46 (1) leads to the conclusion that a non-incarcerated parolee is eligible to apply for resentencing under the statute.

Even if the plain language of CPL 440.46 were ambiguous, further analysis would lead us to the same conclusion. First, the People’s contention that the legislature limits use of the term “custody” to defendants who are incarcerated is contradicted by the language of several statutes. Executive Law § 259-i (2) (b), for example, states that a parolee shall be in the “legal custody” of DOCCS until, among other possibilities, “return to imprisonment in the custody of the department” (see also Correction Law § 275 [using both “legal custody” and “custody” in reference to a person who has been granted conditional release]; CPL 410.50 [1] [“Custody. A person who is under a sentence of probation is in the legal custody of the court that imposed it pending expiration or termination of the period of the sentence”]). In fact, multiple provisions of Executive Law § 259-i use the phrase “imprisonment in the custody of the department” or “inmate [in] the custody of the department” to clarify that they refer only to incarcerated persons (see Executive Law § 259-i [2] [c] [A] [iv]; [d] [i], [ii]; [3] [a] [i]).

Furthermore, in Matter of Hawkins v Coughlin (72 NY2d 158 [1988]), this Court rejected an argument that “custody” inherently refers only to incarcerated persons. There, in determining that the defendant was not entitled to a credit pursuant to Penal Law § 70.30 (3), we said that the term “custody,” as used in that statute, meant “ ‘confinement’ or ‘detention’ under guard and not ‘constructive custody’ such as release on parole or bail” (72 NY2d at 162). The Court referred to the legislative history of the statute and determined that “the Legislature intended the provision to apply only to time spent in some type of ‘actual’ custody” (id. at 163). The legislative history of CPL 440.46, however, differs greatly from that attributed to Penal Law § 70.30 (3). In fact, the intent of the DLRA “was to grant relief from what the Legislature perceived as the ‘inordinately harsh punishment for low level non-violent drug offenders’ that the Rockefeller Drug Laws required” (Paulin, 17 NY3d at 244, quoting Assembly Sponsor’s Mem, Bill Jacket, L 2004, ch 738 at 6).

Contrary to the People’s contention, the 2011 amendments were not purely budgetary or technical changes. The 2011 law emphasized “the evolution of the sentencing structure” toward a “focus on reentry,” and the “commonality of purpose governing the fundamental missions of both agencies” to “provide for a seamless network for the care, custody, treatment and supervision of a person, from the day a sentence of state imprisonment commences, until the day such person is discharged from supervision in the community” (L 2011, ch 62, § 1, part C, § 1, subpart A, § 1).

Finally, remedial statutes such as the DLRA should be interpreted broadly to accomplish their goals — in this case the reform of unduly harsh sentencing imposed under pre-2005 law (see McKinney’s Cons Laws of NY, Book 1, Statutes § 321 [“Generally, remedial statutes are liberally construed to carry out the reforms intended and to promote justice”]). In People v Sosa (18 NY3d 436 [2012]), we acknowledged that the language of CPL 440.46 (5) was potentially ambiguous and noted that the DLRA is a remedial statute that should be read broadly unless the limitation proposed is “clearly expressed” (18 NY3d at 440-441). We also noted that any ambiguity in CPL 440.46’s eligibility section should be read in favor of the applicant because a finding of eligibility is simply the first step in the resentencing process — the ultimate decision lies in the exercise of discretion of the reviewing judge as part of the court’s “substantial justice” determination (id. at 443, citing CPL 440.46 [3]). Furthermore, this interpretation of CPL 440.46 corrects the anomaly under the pre-merger law of permitting resentencing for parole violators who have been returned to prison, but not for those who had complied with the terms of their parole (see Paulin, 17 NY3d at 244), and is consistent with Santiago, which permitted resentencing where a defendant was incarcerated when he or she applied but was released before a determination was rendered on the application.

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

Read, J.

(dissenting). When we decided People v Paulin (17 NY3d 238 [2011]) four years ago, there was no dispute that CPL 440.46 limited its resentencing relief to incarcerated persons; parolees were ineligible. This was so because the statute applied to “[a]ny person in the custody of the department of correctional services” (former CPL 440.46 [1] [emphasis added]), the agency that ran the state prison system when this provision was enacted as part of the 2009 Drug Law Reform Act (2009 DLRA). We observed that “in making this distinction” between prisoners and parolees, “the Legislature recognized that the burden of inordinately harsh punishment [imposed by the Rockefeller Drug Laws] falls most heavily on those who are in prison” (17 NY3d at 244 [internal quotation marks omitted and emphasis added]).

After their convictions for class B drug felonies, Paulin and Pratts, the defendant in a companion case, were sentenced and incarcerated, eventually were released on parole, violated their parole and so were reincarcerated. When the 2009 DLRA took effect, they applied for resentencing. The wrinkle in Paulin and Pratts, then, was that the defendants were in prison for violating their parole, and the question presented was whether this made them ineligible for resentencing under CPL 440.46.

After the appeals had been briefed but before they were argued, the Governor signed chapter 62 of the Laws of 2011. As part of the State’s enacted budget for fiscal year 2011-2012, various State agencies and entities were restructured, principally to save money by streamlining operations and rationalizing missions. Chapter 62, an article VII budget bill, made those changes to permanent law necessary to effectuate or reflect several of these restructurings, including the merger of the Department of Correctional Services and the Division of Parole to form a combined Department of Corrections and Community Supervision (see generally Pataki v New York State Assembly, 4 NY3d 75, 83 [2004] [“(T)he Governor submits a budget to the Legislature accompanied by ‘a bill or bills containing all the proposed appropriations and reappropriations included in the budget and the proposed legislation, if any, recommended therein1 ” (quoting NY Const, art VII, §§ 2, 3 [emphasis added])]).

Defense counsel for Paulin and Pratts wrote to inform us of this development. He recognized that chapter 62 did not govern his clients’ appeals because the orders denying them resentencing relief predated the legislation’s effective date. He nonetheless contended that “the amendments, together with the new law’s integrated statement of legislative intent, confirm what we argued in our previously filed briefs, i.e., that a plain-language interpretation of CPL § 440.46 advances the legislative intent that motivated the 2009 DLRA.”

We subsequently held in Paulin that “prisoners who have been paroled, and then reincarcerated for violating their parole, are not for that reason barred from seeking relief under [CPL 440.46]” (17 NY3d at 242). This was so, we opined, because “Paulin and Pratts fit squarely within the text of the 2009 DLRA” (id. at 243); that is, they were in prison when they filed their applications for resentencing under the 2009 DLRA (see also People v Santiago, 17 NY3d 246 [2011] [a prisoner who applied for resentencing under the 2009 DLRA while incarcerated remains eligible for relief even if paroled before the application is ruled on]). We declined to consider chapter 62, observing in a footnote that “[a] recent amendment changed the words ‘department of correctional services’ to ‘department of corrections and community supervision’. The change is of no consequence in these cases. We need not decide its effect, if any, on other situations” (Paulin, 17 NY3d at 243 n [citation omitted]).

The Court now holds that this name change expanded resentencing eligibility under the 2009 DLRA “to include those who are on parole at the time resentencing is sought” (see majority op at 249). The majority principally relies on the text of section 440.46, as amended by chapter 62, and the principle that “remedial statutes such as the DLRA should be interpreted broadly to accomplish their goals — in this case the reform of unduly harsh sentencing imposed under pre-2005 law” {id. at 251).

While we depend first and foremost on the text of a statute to determine what the legislature intended, we have always recognized that text may not properly be read in isolation and that statutes must be construed as a whole, i.e., text derives meaning within a context (see Friedman v Connecticut Gen. Life Ins. Co., 9 NY3d 105, 115 [2007]). Here, the relevant statute is chapter 62 of the Laws of 2011, § 1, part C, § 1, subparts A and B. Subpart A includes the statement of legislative intent to support merger of the Department of Correctional Services and the Division of Parole to form the Department of Corrections and Community Supervision, and amends substantive law as necessary to create the new agency, e.g., by adding a new article 8, entitled “Community Supervision,” to the Correction Law.

Subpart B, by contrast, merely enacts amendments as necessary to reflect the merger. In furtherance of this purpose, sections 1 through 48 of subpart B make name change and other minor technical amendments to the Correction Law, and sections 49 through 173 march through 35 other titles of New York’s Consolidated Laws, substituting “Department of Corrections and Community Supervision” for “Department of Correctional Services” or “Division of Parole.” No changes in substantive law accompany these name change amendments; only additional technical corrections were effected, such as emendations to replace agency names made obsolete by previous government restructurings (e.g., “Office of Children and Family Services” for “Division for Youth”), to render the language gender-neutral (e.g., “him or her” for “him”) or to correct typographical errors. The amendment of section 440.46 to replace “Department of Correctional Services” with “Department of Corrections and Community Supervision” appears in one of the 18 sections in subpart B where these minor changes were made to provisions in the Criminal Procedure Law.

Thus, while the merger itself may be said to carry out the legislature’s judgment that a unitary agency responsible for all offenders makes sense for purposes of sentencing and rehabilitative as well as budgetary policy, the same cannot be said for the 2011 amendment of section 440.46. The majority gives substantive law meaning to a mere name change amendment, which is belied by the context in which it was adopted as part of an article VII budget bill. And since this name change amendment was not intended to have any remedial effect, its enactment presents no occasion for us to interpret section 440.46 differently and more broadly now than we did in Paulin.

The majority highlights, and obviously agrees with, policy considerations that favor allowing nonincarcerated parolees to apply for the sentencing relief made available by section 440.46. But it is up to the legislature, not the courts, to decide whether to expand this provision’s ameliorative sweep, and I cannot agree that the legislature has done so. At most, the 2011 amendment of section 440.46 created an ambiguity easily resolved by considering its place within chapter 62, § 1, part C as a whole. Finally, the restructuring of State agencies and entities through the budget process is routine. I therefore worry about the potential consequences of today’s decision to alter substantive law on the authority of a run-of-the-mill name change amendment appearing in an article VII budget bill. Accordingly, I respectfully dissent.

Judges Pigott, Rivera, Stein and Fahey concur; Judge Read dissents in an opinion in which Judge Abdus-Salaajvi concurs.

Order affirmed.

       As originally enacted, to be eligible for resentencing under CPL 440.46 an individual had to be convicted of a class B drug felony and “[a] person in the custody of the department of correctional services” (L 2009, ch 56, § 1, part AAA, § 9 [enacting CPL 440.46 (1)]). Accordingly, only incarcerated individuals were eligible to apply for resentencing under CPL 440.46 (see People v Paulin, 17 NY3d 238, 243 [2011]; People v Santiago, 17 NY3d 246, 247 [2011]).

      . The majority also states that its interpretation “corrects the anomaly under the pre-merger law of permitting resentencing for parole violators who have been returned to prison, but not for those who had complied with the terms of their parole,” citing Paulin (majority op at 252). In Paulin, however, we expressly rejected the idea, advanced by the People in that case, that any such purported “anomaly” created an absurd result that the legislature never would have intended.

      . The titles amended were the Abandoned Property Law, the Alcoholic Beverage Control Law, the Civil Practice Law and Rules, the Civil Rights Law, the Civil Service Law, the County Law, the Court of Claims Act, the Criminal Procedure Law, the Education Law, the Election Law, the Environmental Conservation Law, the Executive Law, the Facilities Development Corporation Act, the Family Court Act, the General Business Law, the General Municipal Law, the Labor Law, the Legislative Law, the Mental Hygiene Law, the Municipal Home Rule Law, the Penal Law, the Public Buildings Law, the Public Health Law, the Public Officers Law, the Railroad Law, the Retirement and Social Security Law, the Social Services Law, the State Administrative Procedure Act, the State Finance Law, the State Technology Law, the Surrogate’s Court Procedure Act, the Tax Law, the Town Law, the Vehicle and Traffic Law and the Workers’ Compensation Law.


author: Pigott, J.

text:
    [33 NE3d 465, 11 NYS3d 509]
    The People of the State of New York, Appellant, v David Rivera, Respondent.
    Argued March 24, 2015;
    decided May 5, 2015

      POINTS OF COUNSEL

      Cyrus R. Vance, Jr., District Attorney, New York City {David R Stromes and Vincent Rivellese of counsel), for appellant.
    Defendant’s admission to Dr. Gross regarding his ongoing chronic sexual abuse of the victim was not privileged. (People v Osorio, 75 NY2d 80; Matter of Grand Jury Investigation in N.Y. County, 98 NY2d 525; Matter of People v Doe, 107 Misc 2d 605; Matter of Doe v Hynes, 104 Misc 2d 398; United States v Auster, 517 F3d 312; Tesser v Board of Educ., 154 F Supp 2d 388; People v Bierenbaum, 301 AD2d 119; MacDonald v Clinger, 84 AD2d 482; People v Sergio, 21 Misc 3d 451; Juric v Bergstraesser, 44 AD3d 1186.)

      Epstein & Weil, LLC, New York City {Lloyd Epstein of counsel), for respondent.
    I. The Appellate Division correctly found that the trial court committed reversible error by directing Dr. Gross to testify in violation of the physician-patient privilege. (Matter of Grand Jury Investigation in N.Y. County, 98 NY2d 525; People v Bierenbaum, 301 AD2d 119; People v Sinski, 88 NY2d 487; Matter of Grand Jury Investigation of Onondaga County, 59 NY2d 130; Jaffee v Redmond, 518 US 1; Arons v Jutkowitz, 9 NY3d 393; Matter of New York City Health & Hosps. Corp. v New York State Commn. of Correction, 19 NY3d 239; Matter of Camperlengo v Blum, 56 NY2d 251; People v Fuller, 24 NY2d 292; Prink v Rockefeller Ctr., 48 NY2d 309.) II. The Appellate Division’s order should be affirmed because it is based on a mixed question of law and fact that is beyond the review of this Court. (People v Howard, 22 NY3d 388; People v Wheeler, 2 NY3d 370; People v Williams, 17 NY3d 834.)

      Moritt Hock & Hamroff LLP, Garden City (Robert L. Schonfeld and Seth P. Stein of counsel), for New York State Psychiatric Association, Inc. and another, amici curiae.
    The physician’s disclosures to a third party did not operate to abrogate the defendant’s physician-patient evidentiary privilege. (People v Sinski, 88 NY2d 487; Williams v Roosevelt Hosp., 66 NY2d 391; Cynthia B. v New Rochelle Hosp. Med. Ctr., 60 NY2d 452; Matter of Grand Jury Investigation of Onondaga County, 59 NY2d 130; Matter of Farrow v Allen, 194 AD2d 40; Prink v Rockefeller Ctr., 48 NY2d 309; Steinberg v New York Life Ins. Co., 263 NY 45; Doe v Roe, 93 Misc 2d 201; Taylor v United States, 222 F2d 398; Jaffee v Redmond, 518 US 1.)
   OPINION OF THE COURT

Pigott, J.

Defendant, while seeking treatment from a psychiatrist, admitted to sexually abusing an 11-year-old relative. The psychiatrist notified the Administration for Children’s Services (ACS) of defendant’s admission. Subsequently, at defendant’s criminal trial, over defendant’s objection, the trial court permitted the psychiatrist to testify that defendant had made the admission. The issue on this appeal is whether the trial court’s ruling ran afoul of the physician-patient privilege (see CPLR 4504 [a]). We hold that it did.

I

On November 1, 2007, the child revealed to her pediatrician, in her mother’s presence, that she had been sexually abused by defendant. The pediatrician reported the abuse to ACS. The child’s mother relayed the accusation, to defendant’s mother, who told defendant of the child’s accusation. Shortly after receiving word of the child’s allegation, defendant was taken by ambulance to the psychiatric emergency room at Columbia Presbyterian Hospital (CPH), complaining of depression and suicidal ideation. While being treated, defendant told his psychiatrist that he had sexually abused the child.

The following day, the child was medically examined at a child advocacy center. While there, she spoke with a detective, who, during a subsequent investigation, learned that defendant had been admitted to CPH. The detective obtained a court order requiring CPH to notify the police upon defendant’s release. Four weeks later, following his discharge, defendant was arrested and charged with, among other things, predatory sexual assault against a child (Penal Law § 130.96).

Prior to trial, the People moved for the issuance of a subpoena duces tecum seeking defendant’s psychological records from CPH for in camera review by the trial court. Specifically, the People sought records that included any admission defendant may have made concerning the crimes charged in the indictment, which, they argued, could be released as either an exception to or waiver of the physician-patient privilege. Defendant countered that the disclosure of the medical records and any testimony by the psychiatrist concerning defendant’s treatment was barred by the physician-patient privilege pursuant to CPLR 4504 (a), and that defendant had not waived that privilege.

Following the in camera review of the records, Supreme Court held that the admissions defendant made to his psychiatrist were privileged because they were made in the course of diagnosis and treatment of his condition. However, the court, while refusing to allow “the full extent of defendant’s admissions” to be used, held that, because the psychiatrist had disclosed the reported abuse to ACS, the fact that defendant had admitted to the abuse was admissible at trial.

At trial, the child testified concerning the abuse she sustained at the hands of defendant. The People then called defendant’s psychiatrist, who testified that defendant admitted to having sexually abused the child. Defendant, testifying on his own behalf, denied committing any sexual abuse. During summation, the People referred to the psychiatrist’s testimony and, during deliberations, the jury requested a read-back of that testimony. Defendant was convicted as charged and sentenced to a term of 13 years to life in prison.

The Appellate Division unanimously reversed the judgment of Supreme Court and remanded for a new trial, holding that Supreme Court erred in permitting the psychiatrist to testify concerning defendant’s admissions of sexual abuse and that the error was not harmless (99 AD3d 535, 535 [1st Dept 2012]). A Judge of this Court granted the People leave to appeal (21 NY3d 1008 [2013]) and we now affirm.

II

The narrow issue on this appeal is whether the trial court erred in allowing defendant’s psychiatrist to testify concerning defendant’s admission that he abused the child. We hold that the trial court’s ruling violated the physician-patient privilege.

CPLR 4504 (a) provides, as relevant to this appeal, that “[ujnless the patient waives the privilege, a person authorized to practice medicine . . . shall not be allowed to disclose any information which he [or she] acquired in attending a patient in a professional capacity, and which was necessary to enable him [or her] to act in that capacity.” The People do not argue that defendant waived the privilege, nor do they dispute that there was a “professional relationship” between defendant and his psychiatrist (see e.g. People v Sliney, 137 NY 570, 580 [1893]). Nor do the People contend that the information conveyed by defendant to his psychiatrist was not necessary for his treatment (see People v Decina, 2 NY2d 133, 143 [1956]). Rather, the People claim that, because defendant’s admission related to the sexual abuse of a child, it was not privileged since defendant had no reason to believe that it would remain confidential (see generally id. at 145).

Regardless of whether a physician is required or permitted by law to report instances of abuse or threatened future harm to authorities, which may involve the disclosure of confidential information, it does not follow that such disclosure necessarily constitutes an abrogation of the evidentiary privilege a criminal defendant enjoys under CPLR 4504 (a). Whereas confidentiality is an ethical requirement of physicians that “is essential to psychiatric treatment . . . [and] is based in part on the special nature of psychiatric therapy as well as on the traditional ethical relationship between physician and patient” (American Psychiatric Association, The Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry § 4, annotation 1 at 6 [2013 ed]), the physician-patient privilege is a rule of evidence that protects communications and medical records (see Williams v Roosevelt Hosp., 66 NY2d 391, 396 [1985]). The privilege serves several objectives: it encourages unrestrained communication between a patient and his or her medical provider so that the patient may obtain diagnosis and treatment without fear of embarrassment over potential disclosure; it encourages physicians to be forthright in recording their patients’ confidential information; and it protects “patients’ reasonable privacy expectations against disclosure of sensitive personal information” (Matter of Grand Jury Investigation in N.Y. County, 98 NY2d 525, 529-530 [2002] [citations omitted]).

The People argue that because the legislature has carved out several exceptions to the physician-patient privilege, defendant could not reasonably have expected his statements to remain confidential in the context of a criminal proceeding. Those exceptions, however, underscore that whenever the legislature has decided to limit the privilege’s scope, it has done so through the enactment of specific legislation to address the particular subject matter (see Matter of Grand Jury Investigation of Onondaga County, 59 NY2d 130, 136 [1983]). If the legislature had, in fact, decided to create an additional exception permitting a criminal defendant’s mental health professional to testify against the defendant in a criminal proceeding, it would have done so. Indeed, we have noted that, given the number of statutory exceptions to the privilege, “the legislative concept [is clear] that exceptions to the statutorily enacted physician-patient privilege are for the Legislature to declare” (Matter of Grand Jury Investigation of Onondaga County, 59 NY2d at 136), and we need look no further than CPLR 4504 itself which contains those exceptions (see CPLR 4504 [b] [requiring certain physicians and other health professionals “to disclose information indicating that a patient who is under the age of sixteen years has been the victim of a crime”], [c] [requiring physicians and nurses “to disclose any information as to the mental or physical condition of a deceased patient privileged under subdivision (a)” in certain designated circumstances]).

When the legislature has sought to either limit or abrogate the privilege beyond the confines of section 4504, it has been clear in its intent (see Social Services Law § 384-b [3] [h] [privilege not available in a proceeding seeking an order committing the guardianship and custody of a destitute or dependent child]; Social Services Law § 413 [identifying class of mandatory reporters of suspected child abuse and maltreatment]; Social Services Law § 415 [providing that reports of suspected child abuse or maltreatment must be made in writing and “shall be admissible in evidence in any proceedings relating to child abuse or maltreatment”]; Family Ct Act § 1046 [a] [vii] [stating that the privilege “shall (not) be a ground for excluding evidence which otherwise would be admissible” in abuse and neglect proceedings]; Mental Hygiene Law § 81.09 [d] [permitting a court evaluator in guardianship proceedings to apply for permission to inspect medical and psychiatric records of the alleged incapacitated persons, and allowing the court to order such disclosure notwithstanding the physician-patient privilege]; Public Health Law § 3373 [stating that “(f)or the purposes of duties arising out of” article 33, relating to controlled substances, “no communication made to a practitioner shall be deemed confidential within the meaning of the civil practice law and rules relating to confidential communications between such practitioner and patient”]).

Although the legislature may not always explicitly set forth its intention to limit or abrogate the privilege by expressly cross-referencing CPLR 4504, its intent is evident from the directives of the particular statute (see Penal Law § 265.25 [requiring attending physicians to report to police every case of “any . . . injury arising from or caused by the discharge of a gun or firearm” and “a wound which is likely to or may result in death and is actually or apparently inflicted by a knife, icepick or other sharp or pointed instrument”]; Penal Law § 265.26 [requiring physicians to report certain burn injuries to the office of fire prevention and control]; Public Health Law §2101 [1] [requiring physicians to “immediately give notice of every case of communicable disease” to the proper authorities]).

We have acknowledged that although the physician-patient privilege is in derogation of the common law, it should be afforded a “broad and liberal construction to carry out its policy” of encouraging full disclosure by patients so that they may secure treatment (Matter of Grand Jury Investigation of Onondaga County, 59 NY2d at 134 [citation and internal quotation marks omitted]). Conversely, exceptions that limit the privilege are afforded a narrow construction (see People v Sinski, 88 NY2d 487, 492 [1996]). From these statutorily-enacted exceptions, it is evident that the legislature has made considered judgments in deciding when the physician-patient privilege should give way to what it deems to be greater interests, namely, proceedings involving allegations of child abuse, maltreatment and neglect, and guardianship of allegedly incapacitated persons. The legislature has determined that the protection of children is of paramount importance, so much so that it has either limited or abrogated the privilege through statutory enactments.

The People erroneously assert that these exceptions place offenders on notice that the physician-patient privilege does not apply to statements or admissions triggering a duty to disclose. But it is one thing to allow the introduction of statements or admissions in child protective proceedings, whose aim is the protection of children, and quite another to allow the introduction of those same statements, through a defendant’s psychiatrist, at a criminal proceeding, where the People seek to punish the defendant and potentially deprive him of his liberty. Evidentiary standards are necessarily lower in the former proceedings than in the latter because the interests involved are different. Thus, the relaxed evidentiary standards in child protective proceedings lend no credence to the People’s argument that defendant should have known that any admission of abuse he made to his psychiatrist would not be kept confidential.

The legislature has not created an express exception permitting a psychiatrist to testify concerning an admission made by a criminal defendant during the course of a professional relationship where the admission was made for purposes of diagnosis and treatment. Even if a patient is cognizant of his psychiatrist’s reporting obligations under child protective statutes, that does not mean that he should have any expectation that statements made during treatment will be used against him in a criminal matter.

Defendant, who was admitted to CPH based upon the diagnoses of depression and suicidal ideation, allegedly made admissions to his psychiatrist for the purpose of treatment. Thus, defendant’s admission was subject to the physician-patient privilege and, absent any waiver or exception (neither of which is present here), its admission in evidence through the testimony of defendant’s psychiatrist violated section 4504 (a).

Ill

The People next claim that, even if defendant’s admission was privileged, we may nonetheless decline to enforce the privilege if its invocation would undermine section 4504’s policy objectives. According to the People, enforcement of the physician-patient privilege after a disclosure has been made does not promote the purposes of encouraging communication or protecting privacy but, rather, runs counter to the legislature’s policies and practices that are aimed at preventing child abuse and bringing abusers to justice.

We reject the People’s suggestion that we curtail the privilege in this regard. As stated above, the legislature has crafted exceptions to the privilege in child protective proceedings in order to advance the important interest in protecting the welfare of children. Moreover, the cases cited by the People in support of their contention that we may imply from those enactments that the physician-patient privilege was not meant to apply to instances where a disclosure is made are inapposite. In each of those cases, the legislature had created a statutory scheme that charged a governmental body with enforcing certain health care laws, and we held that the need for the disclosure of confidential records was implied from the powers that the legislature conferred on the governmental body (see Matter of New York City Health & Hosps. Corp. v New York State Commn. of Correction, 19 NY3d 239 [2012] [finding an implied exception to the physician-patient privilege from the legislature’s express provisions that granted a commission the power to investigate inmate deaths]; Matter of Camperlengo v Blum, 56 NY2d 251 [1982] [finding an implied exception to the physician-patient privilege where the State Department of Social Services sought medical records as part of a Medicaid fraud investigation]; People v Fuller, 24 NY2d 292 [1969] [finding an implied exception to the physician-patient privilege under the Narcotics Control Act of 1966 that allowed an arrestee’s medical records and statements to physicians in evidence at the addiction hearing to determine if the arrestee qualified for the program, but did not permit the use of such material at the arrestee’s criminal case]).

IV

Finally, contrary to the People’s contention, the testimony by defendant’s psychiatrist that defendant admitted to the abuse was not harmless. Apart from the victim’s testimony, there was no eyewitness evidence to the abuse, and there was little, if any, physical evidence establishing it. Moreover, the prosecutor relied on the psychiatrist’s testimony in arguing for defendant’s guilt and, during deliberations, the jury made one request, namely, it asked for the psychiatrist’s response when she was asked if defendant admitted to her that he sexually molested the child.

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

Chief Judge Lippman and Judges Read, Rivera, Stein and Fahey concur; Judge Abdus-Salaam taking no part.

Order affirmed.

       We do not address the propriety of the Appellate Division’s determination that “the psychiatrist made a proper disclosure of the abuse” (99 AD3d at 535), nor is it necessary for us to address whether this Court should adopt the so-called “Tarasoff doctrine” (see Tarasoff v Regents of Univ. of Cal., 17 Cal 3d 425, 551 P2d 334 [1976]), which requires mental health professionals to disclose a patient’s confidential information to third parties when the professional determines that the patient poses a “serious danger of violence to another” (17 Cal 3d at 431, 551 P2d at 340).