author:
Read, J.
      Chief Judge Lippman

text:
    [12 NE3d 444, 989 NYS2d 446]
    The People of the State of New York, Respondent, v Enrique Rivera, Appellant.
    Argued February 18, 2014;
    decided April 8, 2014

      POINTS OF COUNSEL

      Lynn W.L. Fahey, Appellate Advocates, New York City (Leila Hull of counsel), for appellant.
    The court violated appellant’s due process right to a fair trial when it refused to charge to the jury second-degree manslaughter as a lesser included offense of second-degree murder, although there was a reasonable view of the evidence that appellant, who had been drinking, recklessly killed the deceased during a barroom brawl. (People v Perry, 19 NY3d 70; People v Glover, 57 NY2d 61; People v Green, 56 NY2d 427; People v Sullivan, 68 NY2d 495; People v Van Norstrand, 85 NY2d 131; People v Martin, 59 NY2d 704; People v Henderson, 41 NY2d 233; People v Scarborough, 49 NY2d 364; People v Negron, 91 NY2d 788; People v Asan, 22 NY2d 526.)

      Charles J. Hynes, District Attorney, Brooklyn (Solomon Neubort, Leonard Joblove and Seth M. Lieberman of counsel), for respondent.
    None of defendant’s arguments in support of his claim that he was entitled to the submission of the lesser included offense of second-degree manslaughter is preserved for appellate review. Moreover, defendant’s claim is meritless. In any event, any error in the court’s refusal to submit the lesser offense was harmless. (People v Monroe, 90 NY2d 982; People v Gray, 86 NY2d 10; People v Robinson, 36 NY2d 224; People v Lynn, 27 AD3d 381; People v Barney, 99 NY2d 367; People v Van Norstrand, 85 NY2d 131; People v Green, 56 NY2d 427; People v Martin, 59 NY2d 704; People v Discala, 45 NY2d 38; People v Scarborough, 49 NY2d 364.)
   OPINION OF THE COURT

Read, J.

Defendant Enrique Rivera was charged with second-degree murder (Penal Law § 125.25 [1]) and criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [2]) in connection with the stabbing death of Edgar Ojeda at a Brooklyn bar in the early morning hours of February 27, 2005. The narrative of what happened and its aftermath, as developed at defendant’s jury trial in May 2009, follows. The issue in this appeal is whether the trial judge should have submitted a charge of second-degree manslaughter to the jury.

L

Enrique Navarette, who had in the past occasionally worked at the Brooklyn bar as a bouncer, arrived there between 11:30 and 11:45 p.m. on February 26, 2005. While sitting in the front corner of the bar, near the entrance, he saw defendant and three male companions walk in. Defendant was wearing a camouflage jacket with a hoodie; one of the four men was wearing a green cap, but Navarette could not recall which one. After the bouncer patted them down for weapons, the defendant and his companions stopped by the bar for beers and then continued to the back of the room towards the dance floor.

Between 1:00 and 1:30 a.m., Ojeda, along with Carlos Solomon, Jonathan Dominguez and another friend, arrived at the Brooklyn bar, having left a nearby strip club where they had been since about 11:30 p.m. Shortly after arriving, Solomon walked to the back of the bar to the men’s room. He had been standing with Ojeda in front of a side exit door near a jukebox, not far from the dance floor. On his way to the men’s room, Solomon saw defendant dancing with a woman on the dance floor.

After rejoining Ojeda, Solomon witnessed defendant approach Ojeda and whisper something in his ear. He could not hear what was being said, “[b]ut there was [a] conversation going on.” Defendant was joined by two of his friends. Solomon asked one of these men, “Is there a problem?” and the two began to quarrel. Then “all of a sudden” Solomon saw defendant “strike” or “punch” Ojeda twice in Ojeda’s left shoulder or chest. Likewise, Navarette saw defendant abruptly “push” Ojeda with one hand “twice, maybe” on the upper left side of Ojeda’s chest near his shoulder. Neither Solomon nor Navarette noticed whether anything was in defendant’s hand.

The bouncer rushed in to break up the fighting, and Navarette followed to back him up. Defendant and one of his companions quickly left the Brooklyn bar, chased by the bouncer, and Navarette stayed behind to stop anyone from following. Navarette separated Solomon and Dominguez from defendant’s remaining companion, who turned out to be defendant’s brother, Julio Rivera, but they both managed to throw punches at Julio before he, too, left the bar.

Dominguez had been standing with his back to Ojeda and Solomon, talking to someone, before he became aware of the “scuffle” behind him and turned around. When Dominguez asked Ojeda and Solomon what was happening, Ojeda replied “I’m stabbed.” Dominguez saw blood “leaking down” from Ojeda’s neck. Ojeda, although choking and bleeding heavily, was able to make it on his own to Solomon’s car, parked near the Brooklyn bar. Solomon drove Ojeda, along with Dominguez and their other friend, to Lutheran Medical Center, about 20 blocks distant, running red lights along the way. The trip took minutes, but Ojeda lost consciousness before reaching the hospital, where medical personnel were unable to revive him. Ojeda was apparently the only individual to suffer knife wounds during this incident.

Later on February 27, 2005, Dr. Frede Frederic, a forensic pathologist who works as a medical examiner in New York City’s Office of Chief Medical Examiner, autopsied Ojeda. Frederic, who had by that point in her career performed more than 5,000 autopsies, determined that Ojeda suffered three stab wounds. One stab wound was in the upper left chest and was about five inches deep and 174 inches long. This wound pierced the upper lobe of the left lung and “cut through” the second rib, causing Ojeda to bleed to death. The second stab wound was to the left upper back. It was 21/4 inches deep and about IV4 inches long. The third wound, also in the back of the left shoulder, was two inches deep and about 11/4 inches long. These last two nonlethal stab wounds injured the skin, subcutaneous tissue and muscle of the left shoulder.

All three wounds went from left to right and downward at an acute angle, and were consistent with having been inflicted with the same knife or sharp instrument, which was either sharp on both sides or had a very thin edge on the unsharpened side. Dr. Frederic opined at trial that Ojeda’s wounds could not have been caused by someone “waving” a knife around because “you have to stab the person. The knife has to go through.” According to Dr. Frederic, the fatal stab wound would have caused Ojeda to bleed profusely, lose consciousness in a few minutes, after the loss of enough blood, and then die a few minutes later.

On February 28, 2005, two detectives went to an apartment believed to be defendant’s residence to search for him. There they met defendant’s brother Julio, who had been with defendant at the Brooklyn bar, and returned to the precinct with him. Later that morning, at about 1:20 a.m., detectives returned to this apartment. They knocked on the door and were let in by defendant’s mother. One of the detectives noticed a green camouflage jacket, brown hoodie sweatshirt and green army cap lying on the bedroom floor; bloodstains on the cap were subsequently matched to Ojeda’s DNA. Defendant acknowledged having worn this green cap to the bar on February 27th.

A few hours later, Detective John Darino, the detective assigned to the Ojeda case, learned from defendant’s brother Julio that defendant was at a house in Queens, where the police found him at 4:20 a.m. Detective Darino informed defendant that he was investigating an incident at a Brooklyn bar, and handcuffed and transported him to the precinct, where he was taken to the detective squad interview room. Detective Darino read defendant his Miranda rights, and defendant agreed to speak with the police. Detective Darino told defendant that people had placed him in the Brooklyn bar, and he wanted defendant’s version of what happened.

Defendant relayed that when he went up to the bar to buy a round of drinks, he got “looks” from someone who asked him “What’s up?” He responded “What’s your problem?” Defendant said he then felt “grabbing and punching,” and so took out a knife and “started swinging it at the crowd,” and “didn’t know that he actually hit anybody or hurt anyone.” He then left the premises, “jumped in his car” and drove away. Detective Darino asked defendant if he would be willing to write out a statement, and defendant agreed to do so.

In his written statement, which was read to the jury, defendant similarly stated as follows:

“While I was [at the Brooklyn bar] having a few drinks I had a small confrontation with a guy. It was just words, but as the night goes on, I’m getting these eyes . . . contacted [sic] but nothing to it. Now, as I go to the bar to get my second round, the guy is still looking at me and I happen to look back at him. So he said ‘What’s up?’ and I asked him what seems to be the problem. And right away the crowd rose. Then I felt punches and grabbing. So I take out a knife, used it in self defense, swinging it at the crowd not knowing that I really hurt anyone. I got out of there, got in my car and went home. I didn’t know someone was hurt. It was self defense. I didn’t mean it. I was just scared. I know by saying sorry is not going to bring that person back, but I really didn’t mean this to go down this way. I’m very sorry.”

On February 28th, defendant also gave a videotaped statement to the assistant district attorney, which was shown to the jury. When asked during the videotaped statement to demonstrate how he wielded the knife, defendant, who was sitting, moved his arm weakly at mid-chest level from right to left at a slight downward angle. Additionally, he told the assistant district attorney that he threw the knife away after he left the Brooklyn bar. Later that day, Navarette and Solomon separately identified defendant in a lineup.

At trial, defendant’s brother Julio testified that he had gone to the Brooklyn bar with defendant and two other friends, Little Julio and J.E Julio reported that he had heard men cursing, observed “hand gestures” and “pointing fingers” and that he had gone towards them and “just got in the middle.” Julio separated the two groups of men, but when one of them punched him, he hit back, and then “all the punches started going off.” J.E grabbed Julio, “trying to get” him out of the Brooklyn bar. Julio said that he would not leave without defendant, but then he saw that defendant and one of the bouncers were already almost out the door.

Defendant testified on his own behalf. He recounted that after watching a boxing match and drinking beer with his brother Julio at the barbershop that he operated with another brother, he and Julio went to the Brooklyn bar to meet friends. Defendant denied bringing a knife with him. Defendant related that when he received a phone call, he stepped into the men’s room so that he could hear his caller over the loud music. When Ojeda walked in and commented “This ain’t no phone booth,” defendant hung up and rejoined his friends. Upon leaving the men’s room, Ojeda purposely “brushed into” defendant, staring at him “a little aggressive [ly]” as he walked by. Defendant assumed Ojeda was drunk and “[paid] it no mind,” but he “let Little Julio know.” Defendant finished his drink and went to the bar to buy another round for himself and his friends.

After purchasing the drinks, defendant looked around for one of his friends to help him carry them. Defendant saw Ojeda, who looked his way and “bopped his head like ‘What’s up?’ ” At this point, defendant thought “this kid, he[’s] really got a problem,” so he went over to Ojeda and asked “[W]hat seems to be the problem?” Ojeda replied, “ T ain’t got no problem. You got a problem?[’]” Meanwhile, Little Julio joined defendant, who took out a business card for his barbershop, gave it to Ojeda and told him to come visit him sometime. As defendant was trying in this way to defuse the “hostility” projected by Ojeda, Solomon approached and stood “real close.” Then defendant’s brother Julio arrived. By this time, there was “a little cursing going back and forth.” Defendant was trying to get Little Julio to calm down, but then Solomon “took a swing” at defendant and hit him. He reacted by throwing punches, hitting both Ojeda and Solomon. Defendant denied possessing or wielding a knife.

According to defendant, a bouncer then “manhandled” him out the door onto the sidewalk. Finding the door locked behind him, defendant went to his car and turned on the ignition. Little Julio exited the Brooklyn bar and joined defendant, who did not want to leave without his brother Julio. When Little Julio got into the car, defendant noticed “blotches” of blood on the chest or shoulder of his jacket. Defendant asked Little Julio where the blood came from, and Little Julio assured him that he was not bleeding. On cross-examination, defendant conceded that he had never before mentioned the presence of blood on Little Julio’s jacket.

Defendant radioed his brother Julio on a walkie-talkie, and his brother eventually radioed back that he and J.E were on their way to a diner that was a neighborhood meeting place after a night of clubbing. Defendant then drove off with Little Julio and met up with Julio and J.E Defendant thought “the night was too young,” but Julio and J.E told him they were going home. Defendant made a phone call to a female friend, and dropped off Little Julio near the apartment building where he lived.

Defendant claimed that he confessed, after he was brought to the precinct on February 28th, because Detective Darino threatened that if he did not, both he and his brother Julio would be charged with murder, and Julio would face life imprisonment. According to defendant, Detective Darino told him that the police knew that he was “kicked out” of the Brooklyn bar and Julio was left behind; that his brother was now at the precinct “being charged with murder” because he tried to protect defendant in the fight; and that if defendant “[took] the weight” for (i.e., confessed to) killing Ojeda in self-defense, Julio would be freed and defendant would only face 8 to 10 years in prison. Detective Darino testified that he never made any such threats or representations to defendant.

During the charge conference, defendant requested that Supreme Court submit second-degree manslaughter (Penal Law § 125.15 [1]) and criminally negligent homicide (Penal Law § 125.10) to the jury as lesser included offenses of the murder count. Defense counsel argued that “if you’re swinging a knife at a crowd[, i]t’s like firing a weapon at a crowd. It’s reckless,” and therefore not intentional. The trial judge refused this request, noting that the medical examiner had testified that the stab wounds “could not have been inflicted by someone just swinging a knife around. They had to have been stabbed — stabbing wounds caused by intentional infliction. So there is no basis to submit a reckless count on the evidence in this case.”

Supreme Court submitted the indicted charge of second-degree murder (Penal Law § 125.25 [1]) and first-degree manslaughter (Penal Law § 125.20 [1]) as a lesser included offense. The judge also charged the jury on intoxication as relevant to intent (Penal Law § 15.25). The jury acquitted defendant of murder and found him guilty of first-degree manslaughter (Penal Law § 125.20 [1]). On June 8, 2009, Supreme Court adjudicated defendant a second violent felony offender and sentenced him to a determinate prison term of 25 years to be followed by five years of postrelease supervision.

Defendant appealed, arguing that the court violated his due process right to a fair trial by refusing to submit second-degree manslaughter to the jury because a reasonable view of the evidence supported the conclusion that he killed Ojeda recklessly. On November 7, 2012, the Appellate Division affirmed, holding that there was, in fact, “no reasonable view of the evidence that would support a finding that the defendant acted recklessly when he stabbed the victim” (100 AD3d 658, 660 [2d Dept 2012]). On March 1, 2013, a Judge of this Court granted defendant leave to appeal (20 NY3d 1103 [2013]), and we now affirm.

II.

A party who seeks to have a lesser included crime charged to the jury must satisfy a two-pronged inquiry. First, the crime must be a lesser included offense within the meaning of Criminal Procedure Law § 1.20 (37). Here, defendant asked the trial judge to charge second-degree manslaughter, which is a lesser included crime of second-degree intentional murder (see People v Tai, 39 NY2d 894 [1976] [reckless manslaughter is a lesser included offense of intentional murder]). Second, the party making the request for a charge-down “must then show that there is a reasonable view of the evidence in the particular case that would support a finding that [the defendant] committed the lesser included offense but not the greater” (People v Glover, 57 NY2d 61, 63 [1982]; CPL 300.50 [1]). In assessing whether there is a “reasonable view of the evidence,” the proof must be looked at “in the light most favorable to [the] defendant” (People v Martin, 59 NY2d 704, 705 [1983]), which requires awareness of “the jury’s right to accept some part of the evidence presented by either side and reject other parts of that proof’ (People v Green, 56 NY2d 427, 434 [1982]). We have never, however, “ countenance [d] selective dissection of the integrated testimony of a single witness as to whom credibility, or incredibility, could only be a constant factor” (People v Scarborough, 49 NY2d 364, 373 [1980]; see also People v Negron, 91 NY2d 788, 792 [1998]).

A “reasonable view of the evidence” does not mean, as defendant insists, that a trial court must charge reckless manslaughter as a lesser included offense of second-degree murder unless the record “completely excludes the possibility that the defendant acted recklessly.” Rather, in Scarborough we rejected this notion that “every possible hypothesis but guilt of the higher crime must be excluded to eliminate submission of lesser included crimes” (Scarborough, 49 NY2d at 372 [internal quotation marks omitted]); or that “reasonable view” means “any view,” with the consequence that “the spectrum of all theoretical lesser included offenses . . . would have to be charged on request in each case within each family of criminal transactions, e.g., controlled substances, larceny, theft, assault, homicide, sex offenses” (id. at 373). Instead, we held in Scarborough that

“if, on the whole record, there is not some identifiable, rational basis on which the jury could reject a portion of the prosecution’s case which is indispensable to establishment of the higher crime and yet accept so much of the proof as would establish the lesser crime, then the lesser included offense may not be submitted” {id. at 369-370).

Without such an identifiable basis, “ ‘charging the lesser included offense would force the jury “to resort to sheer speculation” ’ ” (id. at 371, quoting People v Discala, 45 NY2d 38, 43 [1978]; see also Negron, 91 NY2d at 792).

Here, the question is whether the trial judge should have charged second-degree manslaughter in addition to first-degree manslaughter. First- and second-degree manslaughter and second-degree murder share the actus reus of causing the death of another person. The crimes differ in mens rea: second-degree intentional murder and first-degree or intentional manslaughter require intent to cause death and intent to cause serious physical injury, respectively, while second-degree or reckless manslaughter requires only a reckless state of mind. Here, the trial judge charged first-degree manslaughter after determining that a reasonable view of the evidence would support finding that defendant meant to cause serious bodily injury, but did not actually intend to kill Ojeda or anyone else. In contrast, to obtain a second-degree manslaughter instruction, defendant needed to show that a reasonable view of the evidence supported finding that he recklessly caused Ojeda’s death without intending to cause serious physical injury.

Again asserting that a trial judge must submit second-degree manslaughter as a lesser included offense of intentional homicide “unless the evidence entirely excludes the possibility that the defendant caused the death recklessly,” defendant posits that “[o]nly in a truly ‘exceptional case’ will the wounds themselves be so numerous or extreme that they can be relied on to rule out a reckless homicide.” He cites People v Butler (84 NY2d 627 [1994]) as an example of such an “exceptional case,” noting that the victim there suffered three head contusions and 34 kitchen knife stab wounds, nine of which were lethal, while here, there were three stab wounds, only one of which was fatal.

First, as discussed earlier, defendant misstates the test for determining whether a trial judge must charge a lesser included offense. Second, the main issue in Butler was whether, since the trial judge gave an instruction on the possible effect of intoxication on the defendant’s mental state, he was thereby required to instruct the jury on intentional and reckless manslaughter.

We held that the judge was not under any such obligation, and repeated then-Judge Fuld’s warning that a court

“ ‘should avoid doing anything, such as submitting lower crimes in an inappropriate case, that would constitute an invitation to the jury to foreswear its duty and return a compromise or otherwise unwarranted verdict. Or, to express the matter in somewhat different terms, the jury’s power to dispense mercy, by favoring the defendant despite the evidence, should not be allowed so to dominate the trial proceedings as to impede or interfere with the jury’s primary fact-finding function’ ” (id. at 632, quoting People v Mussenden, 308 NY 558, 563 [1955]).

The People took the position in Butler that the “nature and brutality of the slaying,” showed that the defendant could only have acted with an intent to kill, “irrespective of the arguable intoxication palliative offered to the jury” (Butler, 84 NY2d at 634). We agreed with the People that, in light of the facts in Butler, no instruction on either first- or second-degree manslaughter was “warranted or compelled” because “[t]he crime was intentional murder in the second degree or nothing, under the law and under the explicit instructions that were given” (id.).

Thus, Butler does not stand for the proposition, advocated by defendant, that reckless manslaughter must be charged unless a murder victim’s wounds are “numerous or extreme.” No minimum number of knife wounds is required to manifest intent (see e.g. People v Lopez, 72 AD3d 593, 593 [1st Dept 2010] [court properly declined to submit reckless manslaughter to the jury as a lesser included offense where a “(d)efendant’s conduct in inflicting a very deep stab wound to the victim’s vital organs could only be interpreted as evincing a deliberate design to cause the victim’s death, or at least gravely injure him, and the crime was intentional or nothing”] [citing Butler]; People v Henderson, 110 AD3d 1353, 1354 [3d Dept 2013] [the defendant’s request to charge the lesser included offense of second-degree manslaughter was properly denied where he “admitted that he intended to hurt the victim when he stabbed him and, based on the nature and force of the fatal stab wound, the only reasonable view of (his) conduct was that it was intentional”] [citing Butler]).

Finally, defendant argues that testimony from his brother Julio, if credited by the jury, would substantiate that he harbored no animus towards Ojeda, but rather “acted recklessly in causing [Ojeda’s] death during a chaotic barroom brawl[ ] . . . among numerous men all of [whom] had been drinking.” And according to defendant, his pretrial statements, viewed in the light most favorable to him, show that he recklessly waved a knife around during the melee and did not even know that he had hurt anyone.

This record, however, does not reasonably support that defendant acted with mere recklessness. To credit defendant’s pretrial statements about indiscriminately waving a knife, the jury would have to disregard the forensic pathologist’s testimony that Ojeda’s wounds could not have been inflicted in that way because they were stab wounds — the fatal one delivered forcefully enough to plunge five inches deep into his chest, piercing his left lung and cutting through a rib. The jury would have to discount the pathologist’s uncontroverted description of the depth, angle and location of Ojeda’s wounds, which were all delivered to the upper left chest area where vital organs (the heart, lungs) are located.

There is simply not any “identifiable, rational basis on which the jury could reject” the pathologist’s testimony and the evidence of the nature and depth of Ojeda’s wounds (see Scarborough, 49 NY2d at 369). Three penetrating stab wounds to the same person, who — according to defendant — picked a fight with him, is strong evidence of intent to cause at least serious physical injury, and inconsistent with defendant’s pretrial claims that he aimlessly swung a knife in a crowd of people when caught up in the turmoil and panic of a bar fight, oblivious to the possible consequences of his actions and unaware that he had struck anyone. In sum, on this record there exists “[no] reasonable basis in the evidence for a finding of guilt of the lesser count and rejection of the greater count” (id.).

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

Chief Judge Lippman

(dissenting). In my view, there exists a reasonable view of the evidence that would support a finding that defendant acted recklessly, but not intentionally, when he stabbed Edgar Ojeda, and defendant therefore was entitled to submission of the lesser included offense of second-degree manslaughter.

Defendant’s intent has always been the central issue in this case. The majority’s lengthy opinion boils down to the erroneous assessment that the forensic evidence is conclusive on that issue. It is true that the nature and severity of the victim’s wounds present “strong evidence of intent to cause at least serious physical injury” (majority op at 124). However, the question of whether a defendant was entitled to a charge-down “is not directed at whether persuasive evidence of guilt of the greater crime exists” (People v Van Norstrand, 85 NY2d 131, 136 [1995]). Indeed, for our purposes, “evaluation of the persuasiveness of the evidence of guilt of the greater crime is irrelevant” (People v Green, 56 NY2d 427, 434 [1982]).

Instead, our inquiry focuses on whether “there is a reasonable view of the evidence in the particular case that would support a finding that the defendant committed the lesser included offense, but not the greater” (People v Heide, 84 NY2d 943, 944 [1994]; see also CPL 300.50). Critically, to determine whether such a reasonable view exists, we are required to view the evidence in the light most favorable to defendant (see e.g. People v Martin, 59 NY2d 704, 705 [1983]; People v Henderson, 41 NY2d 233, 236 [1976]).

Viewed in that light, I believe that, notwithstanding the medical evidence, a jury could reasonably find that defendant committed reckless, rather than intentional, homicide. The trial testimony established that Ojeda was stabbed during a late-night barroom brawl between two groups of intoxicated men. When several of the People’s witnesses attempted to downplay the chaos of the scene, they were impeached with testimony from defendant’s first trial, in which they said the stabbing occurred amidst “a big ruckus,” with “[p]eople running back and forth,” “screaming,” and “yelling.” The testimony of defendant’s brother Julio similarly depicted a melee in which “all the punches [were] going off’ so that he was unable to discern the direction from which the blows were coming. Consistent with the depiction of drunken chaos and confusion, none of the four eyewitnesses who testified actually observed a knife in defendant’s hand.

In addition, the People introduced defendant’s pretrial statements, from which a jury could reasonably conclude that defendant, in a state of intoxication, wielded the knife in an attempt to repel his opponents, but that he lacked the intent to cause serious physical injury or death. In taking a contrary view, the majority fails to draw reasonable inferences in defendant’s favor.

When questioned following his arrest, defendant explained that, moments after he approached Ojeda, the “crowd rose,” and defendant “felt punches and grabbing” and the crowd “shifting” around him. He described receiving a blow from an unknown source beside or behind him, reaching for his knife, and “swinging] to get out of there.” He also expressly denied acting intentionally. Instead he insisted that he “didn’t mean it” and was “swinging [the knife] at the crowd,” “trying to get out of there.” Defendant also explained that he had been intoxicated and could recall almost nothing about Ojeda’s appearance. When asked if he swung the knife at the person standing in front of him (Ojeda), defendant replied, “there [were] a few of them standing in front of me.” Additionally, contrary to the majority’s assertion, it is far from clear that defendant’s mild gesticulation in the video was intended to be a reenactment of his motions with the blade. To draw such an inference ignores our duty to view the evidence in the light most favorable to defendant. Viewing defendant’s fleeting hand motion in the appropriate light, a jury could reasonably decline to attribute significance to this unremarkable gesture.

Moreover, a factfinder would have reason to doubt the reliability of defendant’s recollection given the evidence of his inebriation, which resulted in the issuance of an intoxication charge to the jury. The majority addresses this aspect of the case only to note that, in People v Butler (84 NY2d 627, 630 [1994]), we rejected a per se rule that an intoxication charge should automatically entitle a defendant to submission of reckless manslaughter as a lesser included offense. What the majority fails to recognize is that Butler itself acknowledged that it was an “exceptional case” (id. at 631), and noted the “generality” that, “in a great many cases in which an intoxication instruction may be warranted and is given, some corresponding lesser-included offense might be necessitated” (id. at 630, 631). In Butler, the “severity of the numerous wounds,” 34 in total, “nine of which were individually fatal” (id. at 634), warranted an exception. Such an exception is not warranted here. Rather than 34 stab wounds, nine of them lethal, there were three stab wounds, one of which was fatal.

As Butler recognizes, entitlement to an intoxication charge will frequently coincide with a reasonable view of the evidence that a defendant possessed a reckless state of mind. Here, it would be reasonable to conclude that defendant’s intoxication rendered him unable to appreciate the risk of death he created by aggressively brandishing a knife in the middle of a barroom brawl. Under our law, such failure of perception due to voluntary intoxication falls within the definition of recklessness (Penal Law § 15.05 [3] [“(a) person who creates (a substantial and unjustifiable) risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto”]).

In addition, while there may well be “[n]o minimum number of knife wounds . . . required to manifest intent” (majority op at 123), Ojeda’s wounds bore no resemblance to those in cases where the forensic evidence was dispositive of intent (see Butler, 84 NY2d at 629-630; People v Vega, 68 AD3d 665, 665 [1st Dept 2009] [“49 stab wounds, mostly to (the) victim’s neck and chest,” penetrating “the heart, lung, liver and spleen”]; People v Alexis, 65 AD3d 1160, 1160-1161 [2d Dept 2009] [victim’s throat slashed 14 times; two wounds severed the jugular vein]; People v Collins, 290 AD2d 457, 458 [2d Dept 2002] [six stab wounds; five fatal]). That Ojeda was stabbed twice in the back of his shoulder, as well as once in the front, reinforces the reasonableness of a finding that defendant swung the knife indiscriminately, albeit forcefully, while the crowd was “shifting” around him. The medical evidence does not, therefore, lead to an inexorable conclusion that “[t]he crime was intentional ... or nothing” (Butler, 84 NY2d at 634).

Finally, the cases cited by the majority, in which defendants were denied a charge-down based on the nature of wounds less numerous than those in Butler, are readily distinguishable on their facts, or lack thereof (see People v Henderson, 110 AD3d 1353 [3d Dept 2013], and People v Lopez, 72 AD3d 593 [1st Dept 2010]). While the circumstances surrounding the stabbing in Lopez are not recounted in the opinion, the stabbing in Henderson clearly occurred during a one-on-one confrontation in an apartment (Henderson, 110 AD3d at 1353), not a tumultuous altercation in the midst of a crowded bar. There was also proof in Henderson that the defendant confronted the victim, left to retrieve a knife, and committed the stabbing upon his return, having expressed a desire “to even the odds” (Henderson, 110 AD3d at 1353). Such circumstances are simply inapposite to the facts here, especially since there is no indication that either Lopez or Henderson involved evidence of intoxication.

In sum, the testimony regarding the chaotic bar fight, combined with defendant’s post-arrest statements and the evidence of his intoxicated state, provided a reasonable basis to find defendant guilty of reckless manslaughter and to acquit on the intentional counts. Under these circumstances, it was reversible error to refuse defendant’s request for a charge of manslaughter in the second degree. Accordingly, I would reverse the Appellate Division order and grant defendant a new trial.

Judges Graffeo, Smith, Pigott and Rivera concur with Judge Read; Chief Judge Lippman dissents and votes to reverse in an opinion in which Judge Abdus-Salaam concurs.

Order affirmed.

      . This was defendant’s second trial; the first ended in a mistrial as a result of a hung jury (see Matter of Rivera v Firetog, 11 NY3d 501 [2008] [dismissing defendant’s CPLR article 78 petition to preclude a retrial for murder on double jeopardy grounds]). During the first trial, Supreme Court dismissed the weapon possession charge.

      . Defendant claimed at trial that he was not read his Miranda rights until after he made oral and written statements.

      . Defendant also testified, though, that he did not observe the blood until the end of the evening, when he dropped Little Julio off near his residence. Defendant’s attorney suggested at trial that Ojeda’s blood might have gotten on defendant’s green cap by virtue of contact with the bloody splotches that defendant professes to have observed on Little Julio’s jacket.

      . Viewed in the light most favorable to defendant, he consumed five to seven beers over the three-hour period prior to the stabbing.

      . This provision defines “Lesser included offense” as follows:
      “When it is impossible to commit a particular crime without concomitantly committing, by the same conduct, another offense of lesser grade or degree, the latter is, with respect to the former, a ‘lesser included offense.’ In any case in which it is legally possible to attempt to commit a crime, an attempt to commit such crime constitutes a lesser included offense with respect thereto” (CPL 1.20 [37]).

      . Subdivision (1) of this provision, which is entitled “Court’s charge; submission of lesser included offenses,” states, as relevant, that
      “[i]n submitting a count of an indictment to the jury, the court in its discretion may, in addition to submitting the greatest offense which it is required to submit, submit in the alternative any lesser included offense if there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater. If there is no reasonable view of the evidence which would support such a finding, the court may not submit such lesser offense” (CPL 300.50 [1]).

        Subdivision (2) provides that if the court is authorized by subdivision (1) to submit the lesser included offense, it must do so if asked by either party.

      . We gave examples in Scarborough of cases where there was a rational basis for a jury to reject proof establishing the greater crime only. We added that
      “[o]ther circumstances suggest themselves as possibly presenting a rational ground for a jury’s disbelief of some, but not all, of the prosecution’s proof. If, as is most often so, the People’s case is a composite of several witnesses and perhaps exhibits, some segments of the evidence — and even some portions of a single witness’ testimony — may be impugned, cast in doubt or discredited by the introduction of contradictory proof or by disclosure on cross-examination of faulty memory, bias, lack of adequate vantage point for observation and the like” (id. at 371).

      . A prima facie case of second-degree manslaughter entails “the creation of a substantial and unjustifiable risk; an awareness and disregard of the risk on the part of the defendant; and a resulting death” (People v Licitra, 47 NY2d 554, 558 [1979]).

      . The dissent argues that “it would be reasonable to conclude that defendant’s intoxication rendered him unable to appreciate the risk of death he created by aggressively brandishing a knife in the middle of a barroom brawl,” thus justifying a conviction for second-degree manslaughter (dissenting op at 127). On the dissent’s theory of reckless manslaughter, though, the jury would have to speculate that defendant was too drunk to realize that he actually plunged the knife three times into Ojeda, as the undisputed forensic evidence showed, rather than merely waving it indiscriminately and defensively at a crowd, as he claimed in his pretrial statements. This goes well beyond viewing the evidence in the light most favorable to the defendant; rather, the dissent constructs a scenario more favorable to defendant than his pretrial statements, apparently on the assumption that he may have been so drunk during the fight that he was unable to accurately recall afterwards how it had unfolded. (As noted earlier, the trial judge charged the jury to consider intoxication as relevant to defendant’s intent.)

       At defendant’s first trial, where the court did submit second-degree manslaughter as a lesser included offense, the jury struggled with the mens rea element and sought “clarification of the terms ‘bodily harm’ and ‘reckless action’ ” (Matter of Rivera v Firetog, 11 NY3d 501, 504 [2008], cert denied 556 US 1193 [2009]). Ultimately, jury deadlock resulted in a mistrial (id. at 503).


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    [12 NE3d 456, 989 NYS2d 458]
    Mashreqbank PSC, Appellant, v Ahmed Hamad Al Gosaibi & Brothers Company, Defendant and Third-Party Plaintiff-Respondent. Maan Abdul Waheed Al-Sanea, Third-Party Defendant-Appellant, et al., Third-Party Defendant.
    Argued February 19, 2014;
    decided April 8, 2014

      POINTS OF COUNSEL

      Cleary Gottlieb Steen & Hamilton LLP, New York City (Carmine D. Boccuzzi, David E. Brodsky, Liana Roza Vitale and Danielle J. Levine of counsel), for appellant.
    I. The Appellate Division decision conflicts with Islamic Republic of Iran v Pahlavi (62 NY2d 474 [1984]) because a purported lack of alternative forum is not a bar to dismissal for forum non conveniens. (Gryphon Dom. VI, LLC v APP Intl. Fin. Co., B.V., 41 AD3d 25; Piper Aircraft Co. v Reyno, 454 US 235; Shin-Etsu Chem. Co., Ltd. v ICICI Bank Ltd., 9 AD3d 171.) II. The mere fact that electronic funds flowed through a New York bank account in connection with an otherwise wholly foreign dispute does not compel New York courts to hear the case. (J. Zeevi & Sons v Grindlays Bank [Uganda], 37 NY2d 220; Ehrlich-Bober & Co. v University of Houston, 49 NY2d 574; Licci v Lebanese Can. Bank, SAL, 20 NY3d 327; Silver v Great Am. Ins. Co., 29 NY2d 356.) III. The Appellate Division’s incorrect choice of law analysis further contributed to its erroneous reversal of the Supreme Court. (Banco Nacional Ultramarino v Chan, 169 Misc 2d 182, 240 AD2d 253; Schultz v Boy Scouts of Am., 65 NY2d 189.) IV The Appellate Division erred in concluding that the bar on sua sponte dismissals for forum non conveniens applied here. (VSL Corp. v Dunes Hotels & Casinos, 70 NY2d 948; Imperial Imports Co. v Neu & Sons, 161 AD2d 411; Matter of Smith v Miller, 237 AD2d 294; Banco do Estado de Sao Paulo v Mendes Jr. Intl. Co., 249 AD2d 137.) V. In the alternative, the Appellate Division abused its discretion. (Patriot Exploration, LLC v Thompson & Knight LLP, 16 NY3d 762.)

      Gibson, Dunn & Crutcher LLP, New York City (Robert F. Serio, Gabriel Herrmann and Christopher Muller of counsel), for third-party defendant-appellant.
    I. The Appellate Division’s application of the forum non conveniens factors to this case was predicated on fundamental legal errors. (Martin v Mieth, 35 NY2d 414; Silver v Great Am. Ins. Co., 29 NY2d 356; Islamic Republic of Iran v Pahlavi, 62 NY2d 474; Mensah v Moxley, 235 AD2d 910; Shin-Etsu Chem. Co., Ltd. v ICICI Bank Ltd., 9 AD3d 171; Wentzel v Allen Mach., 277 AD2d 446; World Point Trading PTE. v Credito Italiano, 225 AD2d 153; P.T. Delami Garment Indus. v Cassa di Risparmio di Torino, 164 Misc 2d 38; A & M Exports v Meridien Intl. Bank, 207 AD2d 741; Troni v Banca Popolare Di Milano, 129 AD2d 502.) II. The Appellate Division erred in holding that the dismissal of the first-party claims was an improper sua sponte act. (Sosa v Cumberland Swan, 210 AD2d 156; Banco do Estado de Sao Paulo v Mendes Jr. Intl. Co., 249 AD2d 137; Matter of Smith v Miller, 237 AD2d 294; VSL Corp. v Dunes Hotels & Casinos, 70 NY2d 948; Todtman, Young, Tunick, Nachamie, Hendler, Spizz & Drogin v Richardson, 231 AD2d 1; Matter of Bernz [Widschi], 139 AD2d 444; Imperial Imports Co. v Neu & Sons, 161 AD2d 411; Kearns v Johnson, 238 AD2d 121; Martin v Mieth, 35 NY2d 414; Matter of Birchwood Vil. LP v Assessor of the City of Kingston, 94 AD3d 1374.) III. Alternatively, the Appellate Division should have affirmed dismissal of the third-party case against Maan Abdul Waheed Al-Sanea for lack of personal jurisdiction. (Copp v Ramirez, 62 AD3d 23; de Capriles v Lugo, 293 AD2d 405; Johnson v Ward, 4 NY3d 516; PDK Labs, Inc. v G.M.G. Trans W. Corp., 101 AD3d 970; Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539; Licci v Lebanese Can. Bank, SAL, 20 NY3d 327.)

      Lewis Baach PLLC, Washington, D.C. (Bruce R. Grace and Eric L. Lewis of counsel), for respondent.
    I. The Appellate Division properly determined that Ahmed Hamad Al Gosaibi & Brothers Company’s third-party complaint should not be dismissed on forum non conveniens grounds. (Islamic Republic of Iran v Pahlavi, 62 NY2d 474; Piper Aircraft Co. v Reyno, 454 US 235; Banco Nacional Ultramarino v Chan, 169 Misc 2d 182, 240 AD2d 253; J. Zeevi & Sons v Grindlays Bank [Uganda], 37 NY2d 220; Wells Fargo Asia Ltd. v Citibank, N.A., 936 F2d 723; Indosuez Intl. Fin. B.V. v National Reserve Bank, 279 AD2d 408, 98 NY2d 238; Ehrlich-Bober & Co. v University of Houston, 49 NY2d 574; Licci v Lebanese Can. Bank, SAL, 20 NY3d 327; American BankNote Corp. v Daniele, 45 AD3d 338.) II. The Appellate Division correctly concluded that Supreme Court engaged in improper sua sponte action in dismissing the first-party claims. (VSL Corp. v Dunes Hotels & Casinos, 70 NY2d 948; Sirius Am. Ins. Co. v Vigo Constr. Corp., 48 AD3d 450; D'Ambrosio v City of New York, 55 NY2d 454; Daniels v City of New York, 7 NY3d 825; Hecht v City of New York, 60 NY2d 57; Mahmood v Gutman, 81 AD3d 792; Duffy v Horton Mem. Hosp., 66 NY2d 473; Banco do Estado de Sao Paulo v Mendes Jr. Intl. Co., 249 AD2d 137; Matter of Smith v Miller, 237 AD2d 294; Imperial Imports Co. v Neu & Sons, 161 AD2d 411.) III. The court had personal jurisdiction over Maan Abdul Waheed AlSanea. (J. Zeevi & Sons v Grindlays Bank [Uganda], 37 NY2d 220.)
   OPINION OF THE COURT

Smith, J.

We held in VSL Corp. v Dunes Hotels & Casinos (70 NY2d 948 [1988]) that it was error for the Appellate Division to dismiss a complaint sua sponte on forum non conveniens grounds, adding that such a dismissal may occur “only upon the motion of a party” (id. at 949). Here, though no party formally moved to dismiss plaintiffs complaint because of the inconvenience of the forum, the issue was briefed and argued at Supreme Court. We hold that VSL did not bar the court from dismissing the complaint under these circumstances. We also hold that, on this record, Supreme Court was correct as a matter of law in dismissing both the complaint and the third-party complaint.

I

The case arises out of a transaction between Mashreqbank PSC (Mashreq), a bank located in Dubai, United Arab Emirates, and Ahmed Hamad Al Gosaibi & Brothers Company (AHAB), a partnership with its headquarters in Khobar, Saudi Arabia. According to Mashreq’s complaint, Mashreq and AHAB agreed to a “foreign exchange swap transaction of US Dollars for Saudi Arabian riyals.” Mashreq agreed to, and did, transfer $150 million to AHAB on April 28, 2009, wiring the money to AHAB’s account at Bank of America in New York. AHAB, according to Mashreq, agreed to pay Mashreq an equivalent value in riyals on May 5, 2009, but the riyals were not paid.

Mashreq sued AHAB to collect the alleged debt. It chose to do so in New York Supreme Court, believing (mistakenly, as it turned out) that it would be able to reach AHAB assets here. AHAB filed an answer (including a counterclaim) and a third-party complaint, naming as third-party defendants a citizen of Saudi Arabia, Maan Abdul Waheed Al-Sanea (Al-Sanea), and Awal Bank BSC (Awal), a bank, headquartered in the Kingdom of Bahrain, that Al-Sanea controlled. AHAB’s pleading alleged that Al-Sanea, an AHAB employee, had “engaged in a massive scheme to loot AHAB”; that the purported foreign exchange transaction on which Mashreq sued was part of that scheme; and that by participating in that and other corrupt transactions Mashreq had aided and abetted Al-Sanea’s fraud. AHAB also alleged that the $150 million paid by Mashreq had been transferred at Al-Sanea’s direction from Bank of America to Awal’s account at the New York branch of another bank.

Al-Sanea moved to dismiss the third-party complaint on the ground of forum non conveniens. (Awal is said to be insolvent, and did not participate in the motion practice below or in this appeal.) No forum non conveniens motion was addressed to Mashreq’s complaint. During an oral argument on another motion, however, Supreme Court suggested that, if the forum non conveniens argument had merit, it would require dismissal of the whole case. The court directed the parties to brief and argue the forum non conveniens issue, which they did. Mashreq, though it had originally chosen New York as a forum, said that, having found no AHAB assets in New York, it had “no objection” to a forum non conveniens dismissal. AHAB, however, argued that the case should remain in New York, while Al-Sanea urged the court to dismiss the entire action. Supreme Court dismissed both the complaint and the third-party complaint on forum non conveniens grounds (2010 WL 9535130 [2010]).

The Appellate Division, with two Justices dissenting, reversed (Mashreqbank PSC v Ahmed Hamad Al Gosaibi & Bros. Co., 101 AD3d 1 [1st Dept 2012]). It held that CPLR 327 (a), as interpreted in VSL, prohibited the dismissal of the main action on forum non conveniens grounds in the absence of a motion seeking that relief. It also concluded that the dismissal of the third-party complaint was an improvident exercise of discretion. In reaching the latter ruling, the Appellate Division majority gave great weight to the use of New York banks to accomplish the dollar transfers from Mashreq to AHAB and from AHAB to Awal. Relying on J. Zeevi & Sons v Grindlays Bank (Uganda) (37 NY2d 220 [1975]), the court observed “that New York has a compelling interest in the protection of the native banking system from misfeasance or malfeasance” (id. at 8). The Appellate Division also relied on its view that, if the allegations in the third-party complaint were accepted as true, the third-party claim would be governed by New York law (id. at 13).

The Appellate Division dissenters concluded that Supreme Court “did not exceed its authority and providently exercised its discretion” in dismissing the whole case (id. at 13 [Andrias, J., dissenting]). The dissent found VSL distinguishable because the parties here had the opportunity to litigate the forum non conveniens issue (id. at 14-16). The dissent also found Zeevi to be distinguishable because the repudiation of the obligation at issue in the Zeevi lawsuit occurred in New York (id. at 19). By contrast, the dissenters found that the New York “contact” here was “peripheral and transitory” — i.e., all that happened was that “the proceeds of Al Sanea’s fraudulent scheme passed through the New York banking system” (id. at 19).

The Appellate Division granted Mashreq (now arguing for the dismissal of its own complaint) and Al-Sanea leave to appeal, certifying the question of whether its order was properly made. We answer the question in the negative, and reverse.

II

The forum non conveniens doctrine is codified in CPLR 327 (a), which says in relevant part:

“When the court finds that in the interest of substantial justice the action should be heard in another forum, the court, on the motion of any party, may stay or dismiss the action in whole or in part on any conditions that may be just” (emphasis added).

We said in VSL that under this statute “a court may stay or dismiss an action in whole or in part on forum non conveniens grounds only upon the motion of a party; a court does not have the authority to invoke the doctrine on its own motion” (70 NY2d at 949). But VSL was very different from the present case. It was a suit by a California plaintiff against a New York defendant that had guaranteed the performance of a construction contract to be performed in Nevada. The defendant moved to dismiss the complaint on statute of limitations grounds, Supreme Court denied the motion, and the defendant appealed to the Appellate Division (see VSL Corp. v Dunes Hotel & Casinos, 128 AD2d 23 [1st Dept 1987]). Nothing in either of the published opinions in the case suggests that the doctrine of forum non conveniens was mentioned by any party, either in Supreme Court or in the Appellate Division. Rather, the Appellate Division itself raised the issue, saying:

“We do not reach the merits of the decision below, but dismiss the complaint sua sponte, on the ground of forum non conveniens” (128 AD2d at 25).

We in turn reversed the Appellate Division, saying that it “acted outside of its authority in sua sponte dismissing the complaint on forum non conveniens grounds” (70 NY2d at 949). Our opinion in VSL is a one sentence memorandum, but the rationale for it seems evident: there is an obvious potential for unfairness when an appellate court dismisses a case on the basis of an issue that no party has raised or addressed. VSL holds that CPLR 327 (a)’s requirement of a “motion” prohibits such a potentially unfair procedure.

There was no similar risk of unfairness in what happened here. While the idea of dismissing the main complaint on forum non conveniens grounds was first mentioned by the Supreme Court Justice, he gave the parties a full opportunity to address the issue — indeed, he asked them to do so. Al-Sanea argued in favor of dismissing the complaint on forum non conveniens grounds, though he did not serve motion papers seeking that relief. We see no reason to read CPLR 327 (a) as prohibiting a forum non conveniens dismissal where only the formality of a document labeled “notice of motion” was lacking, and where AHAB, the only party opposed to dismissal, neither objected to nor was prejudiced by the omission of that formality.

III

In general, a decision to grant or deny a motion to dismiss on forum non conveniens grounds is addressed to a court’s discretion (Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 484 [1984]), and we will review it only to decide whether discretion has been abused. But where an Appellate Division decision is premised on errors of law, this Court does not defer to it. Here, the Appellate Division’s decision to reverse the dismissal of AHAB’s third-party complaint against Al-Sanea was affected by two errors of law.

First, the Appellate Division erroneously read Zeevi as holding that any passage of funds through New York banks automatically implicates New York’s “compelling interest in the protection of [its] banking system,” and thus provides a weighty argument against a forum non conveniens dismissal (101 AD3d at 8). Our state’s interest in the integrity of its banks is indeed compelling, but it is not significantly threatened every time one foreign national, effecting what is alleged to be a fraudulent transaction, moves dollars through a bank in New York. Indeed, the parties here agree that, as a practical matter, any dollar transaction comparable in size to the one now at issue must go through New York (see Edmund M. A. Kwaw, Law & Practice of Offshore Banking & Finance at 19 [1996] [“all wholesale international transactions involving the use of the dollar go through CHIPS,” which is a department of the New York Clearing House Association (footnote omitted)]). That does not mean that every major fraud case in the world in which dollars are involved belongs in the New York courts. New York’s interest in its banking system “is not a trump to be played whenever a party to such a transaction seeks to use our courts for a lawsuit with little or no apparent contact with New York” (First Union Natl. Bank v Paribas, 135 F Supp 2d 443, 453 [SD NY 2001]).

Zeevi does not suggest otherwise. That was a choice of law case, not a forum non conveniens case. It involved a letter of credit issued by a Ugandan bank in favor of an Israeli partnership and payable at First National City Bank in New York. The issuing bank refused to pay, relying on directives issued under the authority of the Ugandan government to the effect that foreign exchange could not be allocated in favor of Israeli companies. In a suit by the letter of credit’s beneficiary, we held that New York, not Ugandan, law governed the bank’s obligation because the cause of action arose in New York: “New York was the locus of repudiation, whereas it should have been a site of payment” (37 NY2d at 226). It was in that context that we emphasized New York’s strong interest as “a financial capital of the world, serving as an international clearinghouse and marketplace for a plethora of international transactions” (id. at 227). Zeevi should not be read to imply that every party aggrieved by the outcome of one among that “plethora” may bring its grievance to the New York courts.

Secondly, the Appellate Division erred in concluding that the allegations in the third-party complaint, taken as true, would require the application of New York law to AHAB’s claims against Al-Sanea. We can see no reason why New York law should be applied to any issue likely to arise in the litigation of the third-party claim. That claim is a suit by a Saudi Arabian company against its employee, a Saudi citizen who allegedly committed fraudulent acts in Saudi Arabia. Under New York’s “interest analysis” approach courts seek “to effect the law of the jurisdiction having the greatest interest in resolving the particular issue” (Cooney v Osgood Mach., 81 NY2d 66, 72 [1993]; see also Edwards v Erie Coach Lines Co., 17 NY3d 306, 320 [2011]), which in the typical case will be either the jurisdiction where the tort occurred or the domicile of one or more of the parties (Cooney, 81 NY2d at 72). Here, Saudi Arabia is the domicile and residence of both parties and the place where the allegedly tortious conduct occurred. The jurisdiction with the greatest interest in resolving the issues likely to arise on AHAB’s claim against Al-Sanea is clearly Saudi Arabia.

IV

Having concluded that the Appellate Division erred in its rulings both on the main claim and the third-party claim, we must decide the appropriate corrective action. If this were a case in which either result could be reached in a sound exercise of discretion, we would remit to the Appellate Division for reconsideration under the correct legal principles. This case, however, is one of the relatively uncommon ones in which dismissal on forum non conveniens grounds is required as a matter of law.

Apart from the use of New York banks to facilitate dollar transfers — a fact which, as we have said, is of minor importance here — we see nothing in this case to justify resort to a New York forum. No party is a New York resident; no relevant conduct apart from the execution of fund transfers occurred in New York; no party has identified any important New York witnesses or New York documents; New York law does not apply; no property related to the dispute is located in New York; no related litigation is pending in New York; and no other circumstance supports an argument that New York is an appropriate forum. Alternatives to a New York forum are available; indeed, the parties’ briefs refer to a number of related investigations or litigations pending in several foreign countries. This is a classic case for the application of the forum non conveniens doctrine.

Accordingly, the order of the Appellate Division should be reversed, with costs, the judgment of Supreme Court reinstated, and the certified question answered in the negative.

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

Order reversed, with costs, judgment of Supreme Court, New York County, reinstated, and certified question answered in the negative.


author: Abdus-Salaam, J. Pigott, J.

text:
    [12 NE3d 436, 989 NYS2d 438]
    Eugene Palladino, Appellant, v CNY Centro, Inc., et al., Respondents.
    Argued February 18, 2014;
    decided April 8, 2014

      POINTS OF COUNSEL

      Robert Louis Riley, Syracuse, for appellant.
    The Appellate Division, Fourth Department committed reversible error of law in finding that pleading and proof of unanimous ratification by members of an unincorporated association, as expressed by this Court in Martin v Curran (303 NY 276 [1951]), was applicable to a labor organization in an action commenced against a labor organization for breach of duty of fair representation rather than the exception to unanimous ratification carved out by this Court in Madden v Atkins (4 NY2d 283 [1958]) where elected union officials are delegated with authority to act on behalf of the union membership. (Mine Workers v Coronado Coal Co., 259 US 344; National Protective Assn. of Steam Fitters & Helpers v Cumming, 170 NY 315; Kirkman v Westchester Newspapers, Inc., 287 NY 373; United States v White, 322 US 694; International Union, United Mine Workers of Am. v United States, 177 F2d 29; McCabe v Goodfellow, 133 NY 89; Busby v Electric Util. Empls. Union, 147 F2d 865; National Variety Artists, Inc. v Mosconi, 169 Misc 982; Pandolfo v Bank of Benson, 273 F 48; Blek v Wilson, 262 NY 253.)

      Blitman & King LLP, Syracuse (Kenneth L. Wagner and Bryan T. Arnault of counsel), for Charles Watson and another, respondents.
    I. The Martin rule should not be overturned (Martin v Curran, 303 NY 276 [1951]). (McCabe v Goodfellow, 133 NY 89; Cenven, Inc. v Bethlehem Steel Corp., 41 NY2d 842; Matter of Garwitt, 41 NY2d 845; Matter of Higby v Mahoney, 48 NY2d 15; People v Hobson, 39 NY2d 479; Great N. Ins. Co. v Interior Constr. Corp., 7 NY3d 412; People v Rudolph, 21 NY3d 497; People v Taylor, 9 NY3d 129; City of Buffalo v Cargill, Inc., 44 NY2d 7.) II. The Appellate Division correctly applied the Martin rule to the plaintiffs duty of fair representation claims. (Ford Motor Co. v Huffman, 345 US 330; Vaca v Sipes, 386 US 171; Matter of Civil Serv. Bar Assn., Local 237, Intl. Bhd. of Teamsters v City of New York, 64 NY2d 188; Smith v Sipe, 67 NY2d 928; Ponticello v County of Suffolk, 225 AD2d 751; Altimari v Parker, 189 AD2d 982; Matter of Sapadin v Board of Educ. of City of N.Y., 246 AD2d 359; Symanski v East Ramapo Cent. School Dist., 117 AD2d 18; Matter of Civil Serv. Empls. Assn. v Public Empl. Relations Bd., 132 AD2d 430, 73 NY2d 796; Herington v Civil Serv. Empls. Assn., 130 AD2d 961.)

      Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., East Syracuse (Craig M. Atlas of counsel), for CNY Centro, Inc., respondent.
    I. In the absence of action by the legislature, the well-settled rule articulated by this Court in Martin v Curran (303 NY 276 [1951]) should not be disturbed. (Lahendro v New York State United Teachers Assn., 88 AD3d 1142; Walsh v Torres-Lynch, 266 AD2d 817; McCabe v Goodfellow, 133 NY 89; Mazurajtis v Maknawyce, 93 Misc 337; Madden v Atkins, 4 NY2d 283; Saint v Pope, 12 AD2d 168; Butler v McCarty, 191 Misc 2d 318; Duane Reade, Inc. v Local 338 Retail, Wholesale, Dept. Store Union, UFCW, AFL-CIO, 17 AD3d 277, 5 NY3d 797; Morrissey v National Mar. Union of Am., 544 F2d 19; Salemeh v Toussaint, 25 AD3d 411.) II. The union did not breach its duty of fair representation toward the plaintiff. (Smith v Sipe, 67 NY2d 928; Matter of Burning v Niagara Frontier Tr. Metro Sys., 273 AD2d 830, 95 NY2d 765; Ahrens v New York State Pub. Empls. Fedn., AFL-CIO, 203 AD2d 796; Mellon v Benker, 186 AD2d 1020; Matter of Garvin v New York State Pub. Empl. Relations Bd., 168 AD2d 446, 77 NY2d 805; Matter of Civil Serv. Empls. Assn. v Public Empl. Relations Bd., 132 AD2d 430, 73 NY2d 796; Scott v Machinists Auto. Trades Dist. Lodge No. 190 of N. Cal., 827 F2d 589; Smiley v Daimler Chrysler, 589 F Supp 2d 471; McGovern v International Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., Local No. 773, 447 F Supp 368; Matter of Civil Serv. Bar Assn., Local 237, Intl. Bhd. of Teamsters v City of New York, 64 NY2d 188.) III. The Appellate Division correctly granted summary judgment dismissing the plaintiffs breach of contract claims against CNY Centro, Inc. (Matter of Board of Educ., Commack Union Free School Dist. v Ambach, 70 NY2d 501; Matter of Rine v Higgins, 244 AD2d 963; Berlyn v Board of Educ. of E. Meadow Union Free School Dist., 80 AD2d 572, 55 NY2d 912; Michael F. Wolfson, M.D., M.P.H. v Preventative Medicine Clinical Servs., 26 AD3d 751; Yoonessi v State of New York, 289 AD2d 998, 98 NY2d 609, 537 US 1047.) IV This Court’s disposition of the appeal should leave intact the Appellate Division’s summary judgment dismissing all of the plaintiffs claims against CNY Centro, Inc. and the union. (Martin v Curran, 303 NY 276; Engquist v Oregon Dept. of Agriculture, 553 US 591; Smith v Reeves, 96 AD3d 1550; Millerton Agway Coop. v Briarcliff Farms, 17 NY2d 57; Bennett v Twin Parks Northeast Houses, 93 NY2d 860; Gaidon v Guardian Life Ins. Co. of Am., 94 NY2d 330; Rudman v Cowles Communications, 30 NY2d 1.)

      Richard E. Casagrande, Latham, and Elizabeth R. Schuster, for New York State United Teachers, amicus curiae.
    I. The rule plaintiff seeks to overturn is long-standing and has application to a broad range of organizations. (Martin v Curran, 303 NY 276; Barrett v New York Republican State Comm., 213 AD2d 989; Heifetz v Rockaway Point Volunteer Fire Dept., 282 App Div 1062; Shapiro v Sobel, 85 AD2d 552; Fairfield Lease Corp. v Empire Empls. Sunshine Club, 74 Misc 2d 328; Hunt v Sharp, 202 AD2d 151; Flagg v Nichols, 307 NY 96.) II. The rule in Martin v Curran (303 NY 276 [1951]) should continue to apply to duty of fair representation claims. (Thomas v Collins, 323 US 516; State Emp. Bargaining Agent Coalition v Rowland, 718 F3d 126; Duane Reade, Inc. v Local 338 Retail, Wholesale, Dept. Store Union, UFCW, AFL-CIO, 17 AD3d 277; Matter of Civil Serv. Bar Assn., Local 237, Intl. Bhd. of Teamsters v City of New York, 64 NY2d 188; Ahrens v New York State Pub. Empls. Fedn., AFL-CIO, 203 AD2d 796; Vaca v Sipes, 386 US 171; White v White Rose Food, a Div. of DiGiorgio Corp., 237 F3d 174; Matter of Civil Serv. Empls. Assn. v Public Empl. Relations Bd., 132 AD2d 430, 73 NY2d 796; Mamorella v Derkasch, 276 AD2d 152; Smith v Sipe, 67 NY2d 928.) III. Changing the rule in Martin v Curran (303 NY 276 [1951]) is properly for the legislature, not the courts. (Salemeh v Toussaint, 25 AD3d 411; People v Boothe, 16 NY3d 195; Day-Brite Lighting, Inc. v Missouri, 342 US 421; Campaign for Fiscal Equity, Inc. v State of New York, 8 NY3d 14; Klostermann v Cuomo, 61 NY2d 525; Matter of Town of Mentz v County of Cayuga, 248 AD2d 1020; New York State Bankers Assn. v Wetzler, 81 NY2d 98; People ex rel. Burby v Howland, 155 NY 270.)
   OPINION OF THE COURT

Abdus-Salaam, J.

In this action by a union member seeking damages from his union for breach of the duty of fair representation, the Appellate Division dismissed the complaint in accordance with our decision in Martin v Curran (303 NY 276 [1951]) because the complaint failed to allege that the union’s conduct was ratified by “every single member” of the association. On this appeal, plaintiff argues that Martin is inapplicable and, alternatively, that this precedent should be overruled. We conclude that the Martin rule applies to this action and we decline to overrule our precedent, which involves both application of the common law and statutory interpretation.

I.

Eugene Palladino was employed by defendant CNY Centro, Inc. (Centro) as a bus driver for nearly 25 years prior to his termination in September 2008. He was a member of the collective bargaining unit that is represented by defendant Amalgamated Transit Union, Local 580 (the Union). Centro terminated Palladino’s employment based upon incidents that occurred in October 2007 and August 2008. According to Centro, on October 5, 2007, Palladino telephoned the dispatch office approximately three hours before his scheduled run and advised the dispatcher that he was not going to make his run because he had been called out of town the previous night and would not make it back in time. Centro suspected that Palladino had not been called out of town at the last minute, but was in fact driving a tour bus for Quality Coach, another bus company. After an investigation, Centro concluded that Palladino’s absence was planned in advance and that he had made false representations with respect to the circumstances surrounding his absence. Centro suspended Palladino without pay for five days and placed him on lifetime probation.

The Union filed a first step grievance on Palladino’s behalf protesting the discipline, which was denied. A second step grievance was also denied on the ground that Palladino had refused to provide any additional information or specifics as to his whereabouts on October 5th. The Union then requested arbitration. According to defendant Charles Watson, who was the Union business agent at the time, he wanted to speak to the owner of Quality Coach regarding when Palladino’s employment for the trip had been arranged as well as Palladino’s location when he called Centro on October 5th, but Palladino did not want Watson to speak to Quality Coach. Thereafter, based on Palladino’s refusal to cooperate with the Union, Watson put the question of whether to proceed to arbitration to the Local 580 Executive Board, which unanimously agreed to withdraw the grievance and not proceed to arbitration.

On August 19, 2008, Centro charged Palladino with, among other things, misrepresentation for documenting on his manifest that he had left the company property on a run at 11:50 a.m. when in fact he had left on his run at 12:00 noon, and for advising dispatch that he was delayed on a certain road for 15 minutes due to construction, when he had only been on that road for approximately four minutes. Centro scheduled a termination hearing. Thereafter, the Union negotiated a settlement agreement with Centro, which included provisions that Palladino would be suspended without pay for 12 days, and be placed on general probation for 130 working days and indefinite probation for misrepresentation offenses. Palladino did not respond to Watson’s phone call urging him to accept the settlement, and did not attend the termination hearing. As a result of the hearing, Centro terminated Palladino’s employment. According to Palladino, he was terminated 45 days before reaching 25 years of service, which made him ineligible for early retirement at the age of 55, and ineligible for the receipt of lifetime health insurance benefits.

The Union filed a first step grievance protesting the termination, which was denied, as was a second step grievance. The Union’s Executive Board then voted unanimously against submitting the grievance to arbitration.

Palladino commenced two separate actions against Centro and the Union; one action challenged his October 2007 discipline and the other challenged his August 2008 discharge. In the first action, he asserted claims of breach of contract against both Centro and the Union, and breach of the duty of fair representation against the Union. In the second action, he asserted claims of breach of contract and deprivation of his constitutional rights pursuant to 42 USC § 1983 against all defendants, wrongful termination against Centro, and breach of the duty of fair representation against the Union. The actions were consolidated. Upon defendants’ motions for summary judgment, Supreme Court, as relevant to this appeal, denied the Union’s motion as to the claim for breach of the duty of fair representation, but otherwise dismissed the claims against the Union. The Appellate Division reversed, agreeing with defendants that, pursuant to Martin, “plaintiffs contention that the Union breached its duty of fair representation is ‘fatally defective’ ” (Palladino v CNY Centro, Inc., 101 AD3d 1653, 1654 [4th Dept 2012] [citation omitted]).

II.

In a 4-3 decision authored by Judge Desmond, this Court held in Martin that a voluntary unincorporated association “is neither a partnership nor a corporation. It is not an artificial person, and has no existence independent of its members” (303 NY at 280). The Court determined that “for better or worse, wisely or otherwise, the Legislature has limited . . . suits against association officers, whether for breaches of agreements or for tortious wrongs, to cases where the individual liability of every single member can be alleged and proven” (id. at 282). Although there were policy considerations that might suggest a different result, the Martin Court was “under the command of a plainly stated, plainly applicable statute, uniformly held by this court, for many years, to require pleading and proof of authorization or ratification by all the members of the group” (id. at 280). That statute, General Associations Law § 13, is entitled “Action or proceeding against unincorporated association” and provides:

“An action or special proceeding may be maintained, against the president or treasurer of such an association, to recover any property, or upon any cause of action, for or upon which the plaintiff may maintain such an action or special proceeding, against all the associates, by reason of their interest or ownership, or claim of ownership therein, either jointly or in common, or their liability therefor, either jointly or severally. Any partnership, or other company of persons, which has a president or treasurer, is deemed an association within the meaning of this section.”

The Martin Court also noted that McCabe v Goodfellow (133 NY 89 [1892]), the leading case on the right to maintain an action against an unincorporated association, held that a plaintiff could not maintain an action against the officer of an unincorporated association “unless the debt, which he seeks to recover, is one upon which he could maintain an action against all the associates by reason of their liability therefor” (303 NY at 281, quoting McCabe, 133 NY at 92), and that there had been a “line of consistent decisions to that effect” since McCabe.

Ultimately, the Martin Court concluded that, because a labor union is a voluntary unincorporated association, the plaintiff was required to plead and prove that each member of the union authorized or ratified the alleged wrongful conduct. Martin did not involve a union member suing his union (as is the case here), but was a libel action where the president of one union sued another union for libeling him in its newspaper.

Judge Conway dissented in an opinion joined by Judges Lewis and Froessel. The dissent concluded that the plaintiff had stated a cause of action for libel under the common law, and rejected the notion that the complaint must fail because it did not allege that all members of the union authorized or ratified the libelous statements. The dissent stressed that trades unions had been “[r]ecognized as juristic entities under both Federal and State statutes for many purposes” and “are no longer mere unincorporated associations, as that term was formerly understood. As a practical matter, it has been held that labor unions have as perpetual an existence as corporations” (303 NY at 293 [Conway, J., dissenting], citing United States v White, 322 US 694 [1944]; Mine Workers v Coronado Coal Co., 259 US 344 [1922]).

Despite the legitimate points raised by the dissent, the Martin majority concluded that “this court does not revise statutes, in an effort to eliminate seeming injustices, or to bring the law into accord with modern fact” (303 NY at 282). The Court explained:

“Whatever reasons be pressed on us for such changes, the power to change is not ours. It is for the Legislature to decide whether or not to overhaul these settled rules, after hearing both sides, and after considering the interests of the general public as well as those of the innumerable members of these associations” (id.).

Seven years after Martin, we carved out a narrow exception to the Martin rule in Madden v Atkins (4 NY2d 283 [1958]), which held that Martin is inapplicable to a suit by a union member against a union arising from wrongful expulsion. Plaintiffs argument that we should apply Madden here is unpersuasive. We distinguished Madden from Martin because in Madden, the wrongful expulsion was effected through a vote by the membership (see 4 NY2d at 295-296). Here, there is no evidence that the Union membership voted on whether to submit plaintiffs grievances to arbitration or took any similar action.

That there was no vote by the Union’s membership highlights one of the reasons why the Martin rule stands as an obstacle to suit against a union: union members do not vote on whether to pursue a grievance for one of their members. Rather, that decision is made by the union’s executive board. Even if the members did vote to take a particular action on a grievance, it would be virtually impossible for a plaintiff to plead and prove that the voting was unanimous.

The Martin rule has been criticized as essentially granting unions complete immunity from suit in state court (see e.g. Jund v Town of Hempstead, 941 F2d 1271, 1281 [2d Cir 1991] [noting that requiring proof of unanimous membership authorization or ratification for a claim based on 42 USC § 1983 in the case of large organizations “would prove an insurmountable obstacle to virtually any plaintiff’]; Building Indus. Fund v Local Union No. 3, Intl. Bhd. of Elec. Workers, AFL-CIO, 992 F Supp 192, 195 [ED NY 1996] [the Martin requirement “is a nearly impossible burden to meet”], affd 141 F3d 1151 [2d Cir 1998]; Modeste v Local 1199, Drug, Hosp. & Health Care Empls. Union, RWDSU, AFL-CIO, 850 F Supp 1156, 1168 [SD NY 1994] [“(u)nquestionably, New York’s Martin rule imposes an onerous and almost, insurmountable burden on individuals seeking to impose liability on labor unions”]). The rule has also been described as being “of dubious validity when decided and . . . even less deserving of recognition today” (Salemeh v Toussaint, 25 AD3d 411, 413 [1st Dept 2006, Saxe, J., dissenting]).

As the dissent in Martin pointed out, federal courts have abandoned the notion that labor unions have no liability independent of the liability of each of its members, and allow unions to sue and be sued for federal claims (see Coronado Coal, 259 US at 386-391; see also Modeste, 850 F Supp at 1163-1164). New York, meanwhile, is said to be “in the company of a small minority of states” that cling to the common-law requirement that the complaint allege that all of the individual members of the union authorized or ratified the conduct at issue (Mitchell H. Rubenstein, Union Immunity from Suit in New York, 2 NYU JL & Bus 641, 649 [summer 2006]). States that have retreated from this requirement include New Jersey (see Donnelly v United Fruit Co., 40 NJ 61, 71, 190 A2d 825, 830 [1963] [“The mists of the conceptual world of the early common law should not be allowed to obscure the public interest in imposing liability on a union as a juristic entity for torts and contract breaches committed against one or more of its own members”], overruled on other grounds by Saginario v Attorney Gen., 87 NJ 480, 435 A2d 1134 [1981]; see also Buteas v Raritan Lodge No. 61 F. & A.M., 248 NJ Super 351, 591 A2d 623 [App Div 1991] [applying Donnelly’s reasoning to all voluntary associations and permitting a member of an unincorporated fraternal association to sue the association in tort]); Massachusetts (see Diluzio v United Elec., Radio & Mach. Workers of Am., Local 274, 386 Mass 314, 319, 435 NE2d 1027, 1031 [1982] [holding that the common-law rule “requiring a suit against all members of that union, should no longer be followed” and sustaining a complaint against a union by an employee injured by picketing union members]); and California (see J.R. Norton Co. v General Teamsters, Warehousemen & Helpers Union, Local 890, 208 Cal App 3d 430, 443, 256 Cal Rptr 246, 254 [6th Dist 1989] [holding that “(a)n unincorporated association acts through its officers, agents, or employees” and upholding a verdict in a suit by an employer against a local union for negligent supervision of strikers], cert denied 493 US 894 [1989]).

Additionally, “[i]n many jurisdictions, by statute or decisional law many kinds of associations are now treated as jural entities, distinct from their members in the same way that a corporation is distinct from its stockholders” (Restatement [Second] of Judgments § 61, Comment b). Specifically, 15 states and the District of Columbia have adopted either the first version of the Uniform Unincorporated Nonprofit Association Act (UUNAA) promulgated by the Uniform Law Commission (see Uniform Unincorporated Nonprofit Association Act [1996], available at http://www.uniformlaws.org/shared/docs/unincorporated%20nonprofit%20association/uunaa96.pdf [last visited Mar. 3, 2014]) or the revised version of that act (RUUNAA) (see Revised Uniform Unincorporated Nonprofit Association Act [2008], available at http://www.uniformlaws.org/shared/docs/unincorporated%20nonprofit%20association/ruunaa_final_08.pdf [last visited Mar. 3, 2014]). RUUNAA makes clear that an unincorporated nonprofit association is a legal entity separate from its members and managers that, among other things, can sue and be sued in its own name (see id.). In its commentary explaining why states should adopt RUUNAA, the Uniform Law Commission notes:

“This is an area of the law that has long needed reform and updating. The existing state laws are largely based on common law aggregate theory, which no longer is suitable for organizations. Unincorporated nonprofit associations are the only type of organization where states have not enacted modern comprehensive governing statutes. . . .
“RUUNAA provides the same personal liability protection to members and managers of an unincorporated nonprofit association formed or operating in an enacting state as does a corporation. While this is a change from the common law joint and several liability theory which is based on the aggregate theory of such associations, it comports with the reasonable expectations of creditors and other persons engaged in transactions with them.” (Uniform Law Commission, Why States Should Adopt RUUNAA, available at http://www.uniformlaws.org/ Narrative.aspx?title=Why+States -[-Should+Adopt+ RUUNAA [last visited Mar. 3, 2014].)

III.

Although we question the continued utility or wisdom of the Martin rule, mindful of “the eminently desirable and essential doctrine of stare decisis” (People v Hobson (39 NY2d 479, 487 [1976, Breitel, Ch. J.]), we decline plaintiffs invitation to overrule our precedent. Martin involved not only the Court’s reading of the common law as it stood at the time, but statutory interpretation of General Associations Law § 13. We disagree with the dissent’s view that “removing the Martin rule would not require overruling precedent involving statutory interpretation” (dissenting op at 153). The Martin majority was guided by “the command of a plainly stated, plainly applicable statute” (303 NY at 280), and both the majority and the dissent recognized that, in New York, liability of unincorporated associations was a matter primarily governed by the legislature’s intent and policy decisions (see Martin at 280-282; see also id. at 289-290 [Conway, J., dissenting]). We did in fact interpret the statute when we concluded that “the Legislature has limited . . . suits against association officers, whether for breaches of agreements or for tortious wrongs, to cases where the individual liability of every single member can be alleged and proven” (303 NY at 282), and overruling Martin would require this Court to abandon its prior interpretation of the statute. Since our decision in Martin, the legislature amended General Associations Law § 13 in 1961, when it added the second paragraph of section 13 to broaden the list of officials who could be served with process on behalf of a labor organization (see L 1961, ch 518, § 1). The legislature did not take that opportunity to clarify or correct our interpretation of the statute, nor has it acted since in response to Martin. As we noted in Hobson:

“Precedents involving statutory interpretation are entitled to great stability. After all, in such cases courts are interpreting legislative intention and a sequential contradiction is a grossly arrogated legislative power. Moreover, if the precedent or precedents have ‘misinterpreted’ the legislative intention, the Legislature’s competency to correct the ‘misinterpretation’ is readily at hand” (39 NY2d at 489 [citations omitted]; see also People v Rudolph, 21 NY3d 497, 512 [2013, Read, J., dissenting]).

While this Court has been willing to overrule precedent involving statutory interpretation when “we find the reasons for adopting what we think the correct interpretation of the statute to be more compelling than the reasons for adhering to a mistaken one” (Rudolph, 21 NY3d at 502 [Smith, J.]), we do not believe this is the best course to take here. Just considering the scope of a decision overruling Martin raises more questions than answers. For example, do we remove the Martin requirement for lawsuits against all unincorporated associations or just labor unions? And would a new rule apply both to association members and to nonmembers who have a cause of action against that association? The Restatement (Second) of Judgments notes that “the trend of the decisions is to accord entity treatment to associations having a formally organized internal government and engaging in substantial and continual activities, but not to ones having a more or less tenuous existence and episodic activity” (Restatement [Second] of Judgments § 61, Comment b). Should New York follow this “entity treatment” approach or some other? These and other weighty considerations lead us to conclude that adoption of a rule that does away with Martin is best left to the legislature, which “has far greater capabilities to gather relevant data and to elicit expressions of pertinent opinion on the issues at hand” (Matter of Higby v Mahoney, 48 NY2d 15, 18-19 [1979]). Indeed, the legislature is better able to assess all of the policy concerns in this area and to limit the applicability of any new rule removing or amending the requirements for maintaining an action against unincorporated associations.

Meanwhile, plaintiff and other union members like him are not without a remedy. Public employees in New York may bring an improper practice charge before the New York State Public Employment Relations Board pursuant to the Taylor Law (Civil Service Law § 200 et seq.)- Civil Service Law § 209-a (2) (c) provides that it shall be an improper practice for an employee organization “to breach its duty of fair representation to public employees.”

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

Pigott, J.

(dissenting). Over 60 years ago, this Court, in a 4-3 decision, opined that “for better or worse” the legislature has limited lawsuits against unincorporated associations, like the union here, to wrongful conduct that was “ratified” by “every single member” of the association (Martin v Curran, 303 NY 276, 282 [1951]). Until today, this Court had never again applied this so-called “Martin rule.” In fact, the Court distanced itself from the rule by allowing suits alleging breach of contract against an unincorporated union for wrongful expulsion of its members, without the need to prove the claim against all of the union’s members (see Madden v Atkins, 4 NY2d 283, 295 [1958]). The Appellate Division has further distinguished the Martin rule by permitting negligence, as opposed to intentional, claims to proceed against an unincorporated union (see e.g. Piniewski v Panepinto, 267 AD2d 1087 [4th Dept 1999]; Torres v Lacey, 3 AD2d 998 [1st Dept 1957]).

The reluctance shown by the majority today in following the Martin rule in this fair representation action is striking. Indeed, the majority devotes as much space to detailing criticisms of Martin as to defending it, noting for example the “legitimate points” raised in the Martin dissent (majority op at 147). I would go further and overrule Martin. Contrary to the majority’s view (see majority op at 150-151), removing the Martin rule would not require overruling precedent involving statutory interpretation. Although the Martin court looked to General Associations Law § 13 — which clearly authorizes actions to be maintained against the president or treasurer of the association — the Court did not interpret any of that statute’s language. Undisputedly, the statute was enacted for the convenience of a plaintiff, such as the one in this case, by enabling him to sue and more promptly reach the property of the union for the satisfaction of any judgment he may recover without naming, as defendants, hundreds or even thousands of members of a union. Where the Martin court went wrong was finding that, despite the fact that plaintiff could now bring an action directly against the union, the union could then face no liability under the common law.

The union in this case did not need, nor did it seek, “ratification” by its members to file the grievances on behalf of plaintiff, which actions form the basis of the complaint. To require such approval would completely neuter the very purpose of the union’s existence to act, through its officers and directors, for and on behalf of its members. As the majority notes (majority op at 148), it was the union, through its executive board, that took the actions that, in the view of the plaintiff, denied him fair representation. I surmise that it is the same executive board that hired the attorneys now representing the union who insist that the board’s actions must be “ratified” by the entire membership.

Finally, the “weighty” questions posed by the majority (see majority op at 152) present no insuperable problem. Yes, the Martin rule should be removed for all unincorporated associations and yes, it would apply to claims of members and nonmembers. We need not decide other questions not presented in this appeal. The majority has allowed its trepidation to overcome common sense and fairness.

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

Order affirmed, with costs.

       Alabama, Arkansas, Colorado, Delaware, the District of Columbia, Hawaii, Idaho, Illinois, Louisiana, North Carolina, Texas, Wisconsin and Wyoming adopted UUNAA (see http://www.uniformlaws.org/Act.aspx?title=Unincorporated%20NonprofIt%20Association%20Act%20%281992%29%281996%29 [last visited Mar. 3, 2014]), and Arkansas, the District of Columbia, Iowa, Nevada and Pennsylvania adopted RUUNAA (see http://www.uniformlaws.org/ Act.aspx?title=Unincorporated%20Nonprofit%20Association%20Act%20%282008%29 [last visited Mar. 3, 2014]).