author: Smith, J.

text:
    [982 NE2d 1237, 959 NYS2d 104]
    W. James Mac Naughton et al., Appellants, v Warren County et al., Respondents.
    Argued November 14, 2012;
    decided December 11, 2012

      POINTS OF COUNSEL

      W. James Mac Naughton, Newton, New Jersey, and another, appellants pro se.
    I. Appellants were denied equal protection of the law when Warren County failed to personally serve them in the same manner as residents. (Zobel v Williams, 457 US 55; Attorney General of N. Y. v Soto-Lopez, 476 US 898; Quill v Vacco, 80 F3d 716; King v New Rochelle Mun. Hous. Auth., 442 F2d 646; Woodson v Mendon Leasing Corp., 100 NY2d 62; Alkaifi v Celestial Church of Christ Calvary Parish, 24 AD3d 476.) II. Appellants were denied due process when the only “notice” Warren County provided was a search of Warren County records. (Schroeder v City of New York, 371 US 208; Jones v Flowers, 547 US 220; Mennonite Bd. of Missions v Adams, 462 US 791; Mullane v Central Hanover Bank & Trust Co., 339 US 306; Greene v Lindsey, 456 US 444; Kennedy v Mossafa, 100 NY2d 1; Matter of Harner v County of Tioga, 5 NY3d 136; Matter of County of Schuyler [Solomon Fin. Ctr., Inc.], 83 AD3d 1243, 17 NY3d 850; Harper v Virginia Dept. of Taxation, 509 US 86; Robinson v Hanrahan, 409 US 38.) III. The courts below erred by making findings of fact adverse to appellants based on guesses, speculation and the affidavit of an attorney with no personal knowledge. (Bernstein v City of New York, 69 NY2d 1020; Zuckerman v City of New York, 49 NY2d 557; Farina v Pan Am.

      World Airlines, 116 AD2d 618.) IV Summary judgment in favor of defendants should be vacated and summary judgment in favor of appellants should be entered. (Jones v Flowers, 547 US 220.)

      Towne, Ryan & Partners, Albany (Elena DeFio Kean of counsel), for Warren County, respondent.
    I. Appellants were afforded due process in this tax foreclosure matter. (Matter of Harner v County of Tioga, 5 NY3d 136; Kennedy v Mossafa, 100 NY2d 1; Matter of Zaccaro v Cahill, 100 NY2d 884; Mullane v Central Hanover Bank & Trust Co., 339 US 306; Mennonite Bd. of Missions v Adams, 462 US 791; Jones v Flowers, 547 US 220; Dusenbery v United States, 534 US 161; Akey v Clinton County, N.Y., 375 F3d 231; Covey v Town of Somers, 351 US 141; Schroeder v City of New York, 371 US 208.) II. Appellants’ equal protection argument must fail as a matter of law. (Matter of Mingo v Pirnie, 55 NY2d 1019; Matter of Anonymous v Codd, 40 NY2d 860; Matter of Shurgin v Ambach, 56 NY2d 700; Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801; Bernstein v Bodean, 53 NY2d 520; Comiskey v Arlen, 43 NY2d 696; Schiavone v City of New York, 92 NY2d 308; York Mtge. Corp. v Clotar Constr. Corp., 254 NY 128; Boyd v Boyd, 252 NY 422; Levine v City of New York, 2 NY2d 246.)

      John M. Silvestri, Chestertown, for Charles Asendorf and others, respondents.
    I. The conduct of appellants alone was responsible for their loss of title to their property. (Kennedy v Mossafa, 100 NY2d 1; Jones v Flowers, 547 US 220; Matter of County of Broome, 50 AD3d 1300; Matter of Harner v County of Tioga, 5 NY3d 136.) II. The procedures followed by Warren County exceeded the due process standards set by Kennedy v Mossafa (100 NY2d 1 [2003]) and Jones v Flowers (547 US 220 [2006]). (Mullane v Central Hanover Bank & Trust Co., 339 US 306; Matter of Harner v County of Tioga, 5 NY3d 136; Matter of County of Schuyler [Solomon Fin. Ctr., Inc.], 83 AD3d 1243, 17 NY3d 850; Matter of County of Sullivan [Fay], 79 AD3d 1409, 17 NY3d 787; Schroeder v City of New York, 371 US 208; Greene v Lindsey, 456 US 444; Robinson v Hanrahan, 409 US 38; Covey v Town of Somers, 351 US 141.) III. The courts below correctly determined that Jones v Flowers (547 US 220 [2006]) did not expand retroactively the notice obligation of Warren County. (American Trucking Assns., Inc. v Smith, 496 US 167; People v Nunez, 30 Misc 3d 55; Kalman v Neuman, 102 Misc 2d 662.) IV Appellants cannot maintain a claim based on an alleged violation of equal protection. (King v New Rochelle Mun. Hous. Auth., 442 F2d 646; Kennedy v Mossafa, 100 NY2d 1; Jones v Flowers,
      547 US 220.) V The courts below correctly made their findings of fact based upon admissible evidence. (Zuckerman v City of New York, 49 NY2d 557; Urban v City of Albany, 90 AD3d 1132.)
   OPINION OF THE COURT

Smith, J.

When an owner of real property moves, and does not give a new address to the collector of real property taxes, he or she may fail to receive notices of overdue taxes and related legal proceedings, and the property may consequently be lost in foreclosure. The United States Supreme Court and our Court have held that, in such situations, due process requires taxing authorities to take reasonable steps to track down the missing taxpayer before seizing and selling his or her property (Jones v Flowers, 547 US 220 [2006]; Kennedy v Mossafa, 100 NY2d 1 [2003]).

This case raises the question of how much a taxing authority is required to do. Plaintiffs argue that, when notice mailed to them at their last known address, in New Jersey, proved undeliverable, the tax collector was required to find some means of making personal service on them, or to address a notice to “occupant” at the former address, or to search New Jersey public records for a new address. We hold that these steps were not constitutionally required, and that plaintiffs have not been deprived of their property without due process of law.

I

In 1988, plaintiffs acquired a vacant lot in the Town of Chester, in Warren County, New York. Plaintiffs then lived in South Orange, New Jersey, and their South Orange address appeared on the deed. The Town sent them real property tax bills at that address, and plaintiffs paid them.

In 1993, plaintiffs moved from South Orange to Millburn, New Jersey. They arranged with the post office to forward their mail, but they did not then inform the Town of Chester taxing authorities of their new address. The 1994 tax bill was forwarded from South Orange to Millburn, and paid. Plaintiffs claim that, after receiving the forwarded bill, they gave their new address to the Town in a handwritten note and in a telephone call, but plaintiffs have no record of either communication, and neither is reflected in the Town’s records. To accept undocumented claims of this kind would be to invite abuse, and we therefore conclude that plaintiffs’ “bare allegation” is insufficient to defeat summary judgment on the issue of whether they gave notice of their change of address to the Town (see Kennedy, 100 NY2d at 10); we take it as established that they gave no such notice.

A year after plaintiffs moved, their forwarding arrangement with the post office expired. Tax bills for the next three years, mailed to them at the South Orange address, were returned to the Town. In 1998, Warren County sent a warning letter to the South Orange address that was also returned, and then began a foreclosure proceeding. It served plaintiffs with the petition and notice of petition by certified mail addressed to the South Orange address. The mailing was returned with the notation: “Undeliverable as Addressed-Forwarding Order Expired.” Plaintiffs defaulted in the foreclosure proceeding and title to the property passed to the County, which sold it at auction in 1999.

Plaintiffs did not learn of these events until 2003. After unsuccessful federal litigation, they began the present action in 2005, asserting that the attempts to give them notice of the foreclosure were constitutionally inadequate, and seeking a declaration that they still owned the property. Supreme Court granted the County’s motion for summary judgment, and the Appellate Division affirmed (MacNaughton v Warren County, 89 AD3d 1269 [2011]). Plaintiffs appeal to this Court as of right, pursuant to CPLR 5601 (b) (1), and we now affirm.

II

At the time the County began its foreclosure proceeding in 1998, the Real Property Tax Law required that notice of the proceeding be published in at least two newspapers (RPTL 1124 [1]) and that it be “mailed, by ordinary first class mail” to the owners of the property (former RPTL 1125 [1]). It is not disputed that the County complied with the statutes. The question is whether the State or Federal Constitution required it to do more.

It has been clear since our 2003 decision in Kennedy that more is sometimes required when a mailed notice is returned as undeliverable. In that case we rejected “the view that the enforcing officer’s obligation is always satisfied by sending the notice to the address listed in the tax roll” and said: “Generally, when the notice is returned as undeliverable, the tax district should conduct a reasonable search of the public record” (100 NY2d at 9). We added, however, that “[a] reasonable search of the public record . . . does not necessarily require searching the Internet, voting records, motor vehicle records, the telephone book or other similar resource” {id. at 10).

In Jones, decided in 2006, the United States Supreme Court interpreted the Due Process Clause of the Federal Constitution in a case in which two notices sent by a taxing authority were returned “unclaimed.” Applying the principle that the means used to give a constitutionally-required notice “must be such as one desirous of actually informing the absentee might reasonably adopt” (Mullane v Central Hanover Bank & Trust Co., 339 US 306, 315 [1950], quoted in Jones, 547 US at 229), the Court held that “additional reasonable steps to provide notice” {id. at 223) were necessary, and specified several that could have been taken: “to resend the notice by regular mail” {id. at 234), “to post notice on the front door” of the taxed property (which in Jones was also the taxpayer’s former home) or “to address otherwise undeliverable mail to ‘occupant’ ” {id. at 235). But the Supreme Court in Jones declined, as we did in Kennedy, to impose more stringent requirements: It specifically rejected the taxpayer’s argument that the tax commissioner “should have searched for his new address in the . . . phonebook and other government records such as income tax rolls” {id. at 235-236). The Court remarked: “An open-ended search for a new address . . . imposes burdens on the State significantly greater than the several relatively easy options outlined above” {id. at 236).

In this case it is not clear what, if any, steps the County took to locate plaintiffs after notice of the foreclosure proceeding was returned as undeliverable. Plaintiffs have not, however, shown that there were any steps required by the State or Federal Constitution, as interpreted in Kennedy and Jones, that would have yielded plaintiffs’ new address.

Plaintiffs suggest that the County should have attempted “personal service,” as it does for taxpayers who five within the County; they have not explained, however, how the County could have served them personally without knowing their new address. Plaintiffs also suggest that the County should have followed one of the courses mentioned in Jones: mailing notice to the taxpayer’s last known address addressed to “occupant.” But the suggestion ignores the difference between Jones and this case. In Jones, the taxpayer’s last known address was the property the taxing authority was trying to tax; the taxpayer still owned it. In that situation, it was reasonable to believe that a mailing from the taxing authorities addressed to the “occupant” of the property would be passed on by the occupant to the owner. But we see little point in requiring a taxing authority to mail a letter to “occupant” at an address that has no connection with the tax claim except that the taxpayer used to live there. There is no reason to think that the new occupant of plaintiffs’ former home would be at all concerned with whether the taxes on a vacant parcel in Warren County, New York were paid or not.

Finally, plaintiffs suggest that the County should have searched the public records of the county of their last known address—Essex County, New Jersey. This requirement, we think, would put too great a burden on the taxing authority. It is one thing to require a search of records in the taxing authority’s own county—the county where the property being taxed is located. It is something different to require taxing authorities to familiarize themselves with the procedures for searching records in any location where a taxpayer happens to have lived. Kennedy and Jones declined to require a search of such sources as the Internet and the telephone book (Kennedy, 100 NY2d at 10; Jones, 547 US at 235-236). The search plaintiffs say the County should have conducted seems to us to be in the same category.

We therefore hold that due process did not require the County to take the steps that plaintiffs say it should have taken. In so holding, we acknowledge that the County might reasonably have been expected to do more than it did. Indeed, if the same case were to arise today, the County would be required by statute to do more: RPTL 1125 (1), which in 1998 required only an ordinary mail notice, was amended shortly after the Jones decision to require mailing “both by certified mail and ordinary first class mail,” and also, in the event both mailings are returned, an attempt by the taxing authority “to obtain an alternative mailing address from the United States postal service” (RPTL 1125 [1] [b] [i]; see L 2006, ch 415, § 1). This last step does not seem a burdensome one, and this case might be different if the County’s failure to take that step had caused plaintiffs to lose their property. But plaintiffs do not claim that that is true; they have made no attempt to show that an inquiry to the post office—in 1998, five years after plaintiffs moved away from South Orange—would have resulted in the County’s learning plaintiffs’ Millburn, New Jersey address.

Plaintiffs’ equal protection argument is without merit.

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

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

Order affirmed, with costs.


source: Caselaw Access Project

author: Chief Judge Lippman. Pigott, J. (dissenting).

license: Public Domain

text:
    [982 NE2d 1241, 959 NYS2d 108]
    The People of the State of New York, Appellant, v Brandon McFadden, Respondent.
    Argued November 13, 2012;
    decided December 13, 2012

      POINTS OF COUNSEL

      Richard A. Brown, District Attorney, Kew Gardens (Danielle Fenn and John M. Castellano of counsel), for appellant.
    The Appellate Division improperly reversed defendant’s conviction for criminal possession of a controlled substance in the third degree on double jeopardy grounds. (People v Prescott, 66 NY2d 216; People v Gajadhar, 9 NY3d 438; People v Henriquez, 3 NY3d 210; People v Hansen, 95 NY2d 227; People v Gillian, 8 NY3d 85; People v Lee, 58 NY2d 491; People v Esajerre, 35 NY2d 463; People v Velasquez, 1 NY3d 44; People v Vargas, 88 NY2d 363; People v Webb, 78 NY2d 335.)

      Appellate Advocates, New York City (Jessica McNamara, Jonathan Garvin and Lynn W.L. Fahey of counsel), for respondent.
    I. The Appellate Division correctly held, based on this Court’s settled law, that Brandon McFadden’s retrial and conviction of third-degree criminal possession of a controlled substance violated his constitutional and statutory double jeopardy rights when a prior jury convicted him of a lesser included offense and failed to reach a verdict on the greater count, which was deemed acquitted. (Price v Georgia, 398 US 323; Green v United States, 355 US 184; People v Fuller, 96 NY2d 881; People v Boettcher, 69 NY2d 174; People v Mayo, 48 NY2d 245; North Carolina v Pearce, 395 US 711; United States v Ball, 163 US 662; People v Biggs, 1 NY3d 225; United States v Martin Linen Supply Co., 430 US 564; People v Helliger, 96 NY2d 462.) II. The Appellate Division lacked jurisdiction to reinstate the lesser included offense because the trial court’s decision to dismiss that count, on both parties’ consent, was not adversely decided against defendant. (People v LaFontaine, 92 NY2d 470; People v Concepcion, 17 NY3d 192; People v Fuller, 276 AD2d 263.)
   OPINION OF THE COURT

Chief Judge Lippman.

The issue presented by this appeal is whether double jeopardy barred defendant from being retried for criminal possession of a controlled substance in the third degree after a previous jury had deadlocked on that charge, but rendered a partial verdict convicting him of the lesser included offense of criminal possession of a controlled substance in the seventh degree. We find that, under these circumstances, double jeopardy does not preclude defendant’s retrial and therefore reverse.

Defendant was indicted for criminal possession of a controlled substance in the third degree, criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree in connection with a single transaction that occurred on July 22, 2008. At his initial trial in June 2009, the jury was not instructed to consider the charges in any particular order. During the second day of deliberations, the jury sent out a note indicating that it had reached a verdict on count three (seventh-degree possession), but was unable to reach a unanimous verdict on the remaining counts. The court instructed the jury to continue deliberating on all counts, observing that it had not been deliberating for an extended time, having only received the case late in the afternoon of the previous day.

Shortly thereafter, the jury sent out a note indicating that juror number five was asking to be removed from service. The court refused to grant the request without some further indication as to the nature of the problem and asked to be advised if it was a question of the juror’s health. It also instructed the jurors not to surrender their honestly held views or to close their minds to the opinions of their fellow jurors. The jury then sent out a note indicating that juror number five wanted to be excused due to blood pressure problems, that were “being exacerbated by [her belief that her] individual rights during deliberations in trying to reach a verdict beyond a reasonable doubt [were] being violated.”

At that point, defense counsel moved for a mistrial. The court proposed inquiring whether the jury still had a unanimous verdict on the seventh-degree possession count and whether further deliberations would be productive on the remaining two counts. The People then indicated that they would like additional information about the juror’s blood pressure problem, but the court rejected that idea, saying “[djefense counsel has indicated he would be moving for a mistrial. There’s no prejudice to the People to retry those two counts if [the jury] can’t deliberate further. I’m not going to endanger this juror’s possible health by virtue of forcing her in some way to continue deliberating if defense is moving for a mistrial.”

In response to the court’s questions, the jury indicated that they did have a verdict on count three, but that they were deadlocked on the other counts. The court then proposed taking a partial verdict and—as to the remaining two counts—either giving the jury an Allen charge or declaring a mistrial. Defense counsel again requested a mistrial as to counts one and two and the court acceded to the request. The jury delivered a partial verdict convicting defendant of criminal possession of a controlled substance in the seventh degree. The court then discharged the jury, noting that the remaining “matters will have to be retried before another jury.” Defense counsel ordered the transcripts to prepare for the retrial and the parties agreed to select a date for the retrial at defendant’s sentencing proceeding.

Prior to the second trial, defense counsel moved to dismiss the count of criminal possession of a controlled substance in the third degree, arguing that reprosecution for that offense would violate double jeopardy. The court denied the motion and proceeded to trial. The second jury acquitted defendant of the count of third-degree criminal sale, but convicted him of third-degree criminal possession. At his sentencing proceeding, the court set aside the conviction for seventh-degree possession as an inclusory concurrent count.

The Appellate Division reversed and dismissed the count of the indictment charging defendant with criminal possession of a controlled substance in the third degree (87 AD3d 554 [2d Dept 2011]). The Court found that defendant’s conviction of the lesser included offense of criminal possession of a controlled substance in the seventh degree was deemed an acquittal of third-degree possession under CPL 300.50 (4) and that double jeopardy barred defendant’s retrial for the greater offense. A Judge of this Court granted the People leave to appeal and we now reverse.

Under the CPL, which contemplates that a jury is properly instructed to consider inclusory concurrent counts in the alternative, a conviction of a lesser offense is deemed an acquittal of the greater counts submitted (see CPL 300.40 [3] [b]; 300.50 [4]). However, we have held that a defendant can, by his or her conduct, relinquish a double jeopardy claim (see People v Echevarria, 6 NY3d 89, 92-93 [2005]).

In Echevarria, the defendant was charged with two counts of first-degree murder and two counts of second-degree intentional murder. The counts were submitted to the jury without any direction as to the order in which they should be considered and without objection by defense counsel (see Echevarria, 6 NY3d at 91-92). When, during deliberations, the jury sent out a note indicating that it had reached a verdict on two unspecified counts, the parties began to discuss the possibility of taking a partial verdict. The prosecutor brought People v Fuller (96 NY2d 881, 883-884 [2001]) to the court’s attention—a case holding that a defendant was deemed acquitted of a greater offense when the jury failed to reach a verdict on that offense, but convicted him of a lesser included offense. Defense counsel in Echevarria argued that Fuller was not applicable and urged the court to take the partial verdict. The court then took the partial verdict convicting Echevarria of the second-degree murder charges and directed the jury to continue deliberating, without objection (see 6 NY3d at 91). The following day, the jury convicted defendant of first-degree murder.

We found that, in addition to the faulty instruction that was given to the jury without objection, defense counsel had advocated against the relevance of Fuller and had called for the acceptance of the partial verdict (see Echevarria, 6 NY3d at 92). “Although ‘[o]nce acquitted, it [is] not possible ... to “waive” the protections against multiple prosecutions,’ counsel’s unequivocal actions occurred prior to the partial verdict” (Echevarria, 6 NY3d at 92-93 [citation omitted], quoting Fuller, 96 NY2d at 884).

Similarly, here, defense counsel failed to object to the improper jury instruction and affirmatively requested a mistrial after the court specifically stated that defendant faced retrial on the top two counts. Having charted his own course by opting for a mistrial and a retrial on the remaining counts, defendant cannot now claim that his retrial is barred. To be sure, Fuller held that a defendant is not precluded from pursuing a double jeopardy claim because he or she fails to request that the charges be considered in the alternative (see 96 NY2d at 883). However, in that case, we did not consider the impact of a defendant’s request for a mistrial with knowledge of the impending retrial, prior to the acceptance of a partial verdict.

In light of our determination, it is unnecessary to address the parties’ remaining contentions.

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

Pigott, J. (dissenting).

Because, in my view, this case falls squarely within our holding under People v Fuller (96 NY2d 881 [2001]), I respectfully dissent.

In Fuller, at the defendant’s trial, in addition to two robbery charges, the jury deliberated on the charges of assault in the second degree and assault in the third degree, under separate counts of the indictment (id. at 882). Defendant was acquitted of the robbery charges and convicted of third-degree assault (id. at 883). The jury, however, was unable to reach a verdict on the second-degree assault charge (id.). Without objection, the court accepted the partial verdict and a mistrial was declared on the second-degree assault count (id.). Defendant was retried on the unresolved assault count, and was ultimately convicted of that crime (id.).

The parties and the judge in Fuller never contemplated the implications of CPL 300.40 (3) (b) and 300.50 (4) when the partial verdict was taken and the mistrial declared; that being the case, the parties never considered that a verdict of guilty on the lesser count meant an acquittal of the greater count by operation of law.

On appeal, however, the defendant argued that the statutory provisions applied and that double jeopardy barred his retrial. We agreed. In doing so, we rejected the People’s claim that the defendant never opposed, and in fact impliedly consented to, the retrial when the mistrial was declared and thus his double jeopardy claim had been waived.

Similarly, in this case, there is no dispute that the crime of criminal possession of a controlled substance in the seventh degree is a lesser-included offense of criminal possession of a controlled substance in the third degree (see e.g. People v Sutton, 289 AD2d 424 [2d Dept 2001]). As such, when the jury returned the partial verdict of guilty on defendant’s misdemeanor possession charge, by operation of law, there was acquittal of the greater possession count (CPL 300.40 [3] [b]). Once defendant was acquitted of the greater count, it was not possible for him to waive the protections of double jeopardy (Fuller, 96 NY2d at 883-884; People v Boettcher, 69 NY2d 174, 182 [1987]).

The majority contends that this case is different from Fuller and more akin to our decision in People v Echevarria (6 NY3d 89, 91 [2005]). The majority distinguishes Fuller on the basis that in that case “we did not consider the impact of a defendant’s request for a mistrial with knowledge of the impending retrial, prior to the acceptance of a partial verdict” (majority op at 265). However, both the defendant in this case and the one in Fuller were acting under the mistaken belief that the People were allowed to retry the unresolved counts and were ignorant of the implications of CPL 300.40 (3) (b) and 300.50 (4).

In Echevarria, after the court received a jury note indicating that it had reached unanimity on two of the four counts against the defendant, “the court and the parties discussed the propriety of taking a partial verdict” (6 NY3d at 91). In particular, the prosecutor specifically raised double jeopardy concerns by directing the court to our decision in Fuller, which “holds that a retrial is barred on the higher offense after a jury finds the defendant guilty of a lesser included offense” {id. [emphasis omitted]). “Expressing no hesitancy,” defense counsel advocated for taking the partial verdict, arguing that “Fuller presented no problem[.] [Defense counsel stated]: ‘Judge, just for the record, I would have requested to take a partial verdict in this case. I don’t think [Fuller] is directly applicable to this particular case, and I think the way to do a charge to the jury here, I think that there is no reason why a partial verdict can’t be taken.’ The court acquiesced.” {id.).

The court took a partial verdict, but there was no mistrial on the unresolved counts. Rather, the jury was permitted to continue its deliberations. The jury then announced that it had unanimously found the defendant guilty of the greater offense. Then, on appeal, defendant argued that once the jury rendered its partial verdict finding him guilty of second-degree murder, further deliberations were impermissible and the ensuing first-degree murder conviction must be vacated {id. at 92). We rejected that argument. We found significant the fact that the defendant at trial had affirmatively argued against the applicability of CPL 300.50 and Fuller and urged the court not only to take the partial verdict but also to permit the jury to continue to deliberate {id. at 92-93).

In this case, nothing even similar occurred. The jury rendered its partial verdict, a mistrial on the unresolved counts was declared and the jury was discharged. It was before a second jury was empaneled that the defendant raised the double jeopardy issue. Unlike defendant in this case, the defendant in Echevarria clearly indicated he wanted to waive a double jeopardy claim, by expressly disavowing Fuller and declaring that he wanted the jury to continue deliberations on the two unresolved counts. No such waiver language can be found in this case. There was no discussion between the parties of the implications of our holding in Fuller or double jeopardy concerns.

Here, once the jury returned the verdict of guilty on the criminal possession of a controlled substance in the seventh degree, there was no longer a third-degree possession count to be retried. I therefore would affirm the order of the Appellate Division.

Judges Ciparick, Graffeo, Read and Smith concur with Chief Judge Lippman; Judge Pigott dissents and votes to affirm in an opinion.

Order reversed and case remitted to the Appellate Division, Second Department, for consideration of the facts and issues raised but not determined on the appeal to that court.

       Indeed, in Fuller, a retrial took place resulting in a jury verdict of guilty on the previously unresolved count.


author: Graffeo, J.

text:
    [982 NE2d 600, 958 NYS2d 680]
    In the Matter of Karen Bitchatchi, Respondent, v Board of Trustees of the New York City Police Department Pension Fund, Article II, Appellant. In the Matter of Eddie Maldonado, Appellant, v Raymond Kelly, as Police Commissioner of the City of New York and as Chairman of the Board of Trustees of the Police Pension Fund, Article II, et al., Respondents. In the Matter of Nilda Macri, Respondent, v Raymond W. Kelly, as Police Commissioner of the City of New York and as Chairman of the Board of Trustees of the Police Pension Fund, Article II, et al., Appellants.
    Argued and submitted November 13, 2012;
    decided December 13, 2012

      POINTS OF COUNSEL

      Michael A. Cardozo, Corporation Counsel, New York City (Paul T. Rephen and Keith M. Snow of counsel), for appellant in the first above-entitled proceeding.
    I. The lower courts misapplied the legal standard for reviewing public pension disability determinations and statutory presumptions. (Matter of Borenstein v New York City Employees’ Retirement Sys., 88 NY2d 756; Matter of Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139; Matter of Archul v Board of Trustees of N.Y. City Fire Dept., Art. 1B Pension Fund, 93 AD2d 716, 60 NY2d 567; Matter of Christian v New York City Employees’ Retirement Sys., 83 AD2d 507, 56 NY2d 841; Denio v State of New York, 7 NY3d 159; Matter of Nerney v New York State Policemen’s & Firemen’s Retirement Sys., 156 AD2d 775, 75 NY2d 710; Matter of Helmer v New York State & Local Employees’ Retirement Sys., 305 AD2d 949; Matter of Kelly v Kelly, 82 AD3d 544, 17 NY3d 705; Matter of Jefferson v Kelly, 14 Misc 3d 191, 51 AD3d 536; Matter of Mulet v Kelly, 49 AD3d 336.) II. The lower courts improperly weighed medical evidence and incorrectly found that petitioner is entitled to accidental disability retirement as a matter of law. (Matter of Canfora v Board of Trustees of Police Pension Fund of Police Dept. of City of N. Y., Art. II, 90 AD2d 751, 60 NY2d 347; Matter of Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139; Matter of Wesarg v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 246 AD2d 601; Matter of Borenstein v New York City Employees’ Retirement Sys., 88 NY2d 756; Matter of Callaghan v Bratton, 253 AD2d 390; Matter of Brady v City of New York, 22 NY2d 601; Matter of Josey v New York City Police Dept., 50 AD3d 393.)

      Rosemary Carroll, Clermont, for respondent in the first above-entitled proceeding.
    I. The judgment should be affirmed because respondent failed to adduce competent evidence to rebut the statutory presumption that petitioner’s disabling cancer was caused by exposure to toxins at Ground Zero. (Matter of Evans v City of New York, 145 AD2d 361; Matter of Jefferson v Kelly, 14 Misc 3d 191, 51 AD3d 536; Matter of Mulet v Kelly, 49 AD3d 336; Matter of Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139; Matter of Cusick v Kerik, 305 AD2d 247; Matter of Brady v City of New York, 22 NY2d 601; Matter of Rodriguez v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 3 AD3d 501; Matter of Kiess v Kelly, 75 AD3d 416; Matter of Macri v Kelly, 92 AD3d 53; Matter of Goldman v McGuire, 64 NY2d 1041.) II. Respondent failed to apply the applicable rule of law on causation and petitioner is entitled to accidental disability retirement as a matter of law. (Matter of Tobin v Steisel, 64 NY2d 254; Matter of Petrella v Board of Trustees of Police Pension Fund, 141 AD2d 361.)

      Law Offices of Chet Lukaszewski, P.C., Lake Success (Chester P. Lukaszewski of counsel), for appellant in the second above-entitled proceeding.
    I. The First Department committed errors in law and in fact and misinterpreted the World Trade Center law and thereby set a precedent which nullifies the law and its presumption. (Santangelo v State of New York, 71 NY2d 393; Matter of O'Marah v Levitt, 35 NY2d 593; Matter of Tobin v Steisel, 64 NY2d 254; Matter of Jefferson v Kelly, 51 AD3d 536; Matter of Claudio v Kelly, 84 AD3d 667; Matter of Kelly v Kelly, 82 AD3d 544; Matter of Borenstein v New York City Employees’ Retirement Sys., 88 NY2d 756; Matter of Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139; Matter of Heintz v Brown, 80 NY2d 998; People v Ryan, 274 NY 149.) II. Court action granting petitioner a World Trade Center accidental disability retirement pension is warranted or, at least, remanding his application for further consideration in keeping with the decision herein. (Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222; Matter of Canfora v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 90 AD2d 751, 60 NY2d 347; Matter of VR Equities v New York City Conciliation & Appeals Bd., 118 AD2d 459; Roth v Board of Trustees of Teachers’ Retirement Sys. of City of N.Y., 66 AD2d 664; Matter of Borenstein v New York City Employees’ Retirement Sys., 88 NY2d 756; Matter of Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139; Matter of Brady v City of New York, 22 NY2d 601; Matter of Belnavis v Board of Trustees of N.Y. City Fire Dept., Art. 1B Pension Sys., 84 AD2d 244; Pamlanye v McGuire, 111 AD2d 721; Matter of Perkins v Board of Trustees of N.Y. Fire Dept. Art. 1-B Pension Fund, 59 AD2d 696.)

      Michael A. Cardozo, Corporation Counsel, New York City (Paul T. Rephen and Inga Van Eysden of counsel), for respondents in the second above-entitled proceeding.
    Petitioner failed to meet his burden of demonstrating that his preexisting cancer was aggravated by his World Trade Center (WTC) work, and even if the WTC presumption applies, the Medical Board’s determination that petitioner’s cancer was not caused or aggravated by his WTC work was based on credible evidence and should be upheld. (Matter of Borenstein v New York City Employees’ Retirement Sys., 88 NY2d 756; Matter of Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139; Matter of Canfora v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 60 NY2d 347; Matter of Archul v Board of Trustees of N.Y. City Fire Dept., Art. 1B Pension Fund, 93 AD2d 716, 60 NY2d 567; Matter of Christian v New York City Employees’ Retirement Sys., 83 AD2d 507, 56 NY2d 841; Matter of Tobin v Steisel, 64 NY2d 254; Matter of Jefferson v Kelly, 14 Misc 3d 191, 51 AD3d 536; Matter of Lahm

      v Bloomberg, 29 AD3d 461; Matter of Whitton v Spinnato, 143 AD2d 274; Matter of Bartsch v Board of Trustees of N.Y. City Fire Dept. Art. 1B Pension Fund, 142 AD2d 577.)

      Michael A. Cardozo, Corporation Counsel, New York City (Paul T. Rephen and Keith M. Snow of counsel), for appellants in the third above-entitled proceeding.
    The determination by the Medical Board of the Police Pension Fund that Officer Macri’s lung cancer predated 9/11 was based on credible evidence, and therefore, the presumption that it was the consequence of his service at that time was properly rebutted. To the extent that petitioner offered conflicting medical evidence, the resolution of that conflict rested with the Board of Trustees of the Pension Fund and not the courts. (Matter of Borenstein v New York City Employees’ Retirement Sys., 88 NY2d 756; Matter of Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139; Matter of Canfora v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 60 NY2d 347; Matter of Archul v Board of Trustees of N.Y. City Fire Dept., Art. 1B Pension Fund, 93 AD2d 716, 60 NY2d 567; Matter of Christian v New York City Employees’ Retirement Sys., 83 AD2d 507, 56 NY2d 841; Matter of Kelly v Kelly, 82 AD3d 544, 17 NY3d 705; Matter of Jefferson v Kelly, 14 Misc 3d 191, 51 AD3d 536; Denio v State of New York, 7 NY3d 159; Matter of Nerney v New York State Policemen’s & Firemen’s Retirement Sys., 156 AD2d 775, 75 NY2d 710; Matter of Helmer v New York State & Local Employees’ Retirement Sys., 305 AD2d 949.)

      Dechert LLP, New York City (James M. McGuire, Edward A. McDonald and Matthew L. Mazur of counsel), for respondent in the third above-entitled proceeding.
    I. No competent evidence rebutted the World Trade Center presumption. (Matter of Brady v City of New York, 22 NY2d 601; Matter of Borenstein v New York City Employees’ Retirement Sys., 88 NY2d 756; Matter of Claudio v Kelly, 84 AD3d 667; United States v Stanchich, 550 F2d 1294; Matter of Fernandez v Board of Trustees of N.Y. Fire Dept. Pension Fund, Subchapter 2, 81 AD3d 950; Matter of Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139; Matter of Goldman v McGuire, 101 AD2d 768, 64 NY2d 1041; Matter of Wahl v Board of Trustees of N.Y. City Fire Dept., 89 NY2d 1065; Matter of Liston v City of New York, 161 AD2d 491; Matter of Bennett v Board of Trustees of Police Pension Fund of City of N.Y. 20 AD2d 522, 16 NY2d 562; Romano v Stanley, 90 NY2d 444.) II. The Medical Board’s determination did not rebut the World Trade Center presumption under the Tobin rule. (Matter of Tobin v Steisel, 64 NY2d 254; Matter of Meyer v McGuire, 64 NY2d 1152; Matter of Dement v Kelly, 97 AD3d 223; Matter of Britt v DiNapoli, 91 AD3d 1102; Matter of Jones v Board of Trustees of N.Y. Fire Dept. Art. 1-B Pension Fund, 123 AD2d 628; Edmond v International Bus. Machs. Corp., 91 NY2d 949.) III. Because petitioner is entitled to accidental death benefits as a matter of law, a remand to the Medical Board is not an appropriate remedy. (Matter of McCambridge v McGuire, 62 NY2d 563; Matter of Sailer v McGuire, 114 AD2d 334; Matter of Dement v Kelly, 97 AD3d 223; Matter of City of New York v Schoeck, 294 NY 559; Matter of Brady v City of New York, 22 NY2d 601; Matter of Josey v New York City Police Dept., 50 AD3d 393.)
   OPINION OF THE COURT

Graffeo, J.

Each of these appeals involves a police officer who responded to provide assistance at the World Trade Center following the September 11, 2001 attacks. Two officers seek accidental disability retirement benefits and the surviving spouse of another officer makes a claim for line-of-duty death benefits. Central to all three CPLR article 78 proceedings is the application of the statutory World Trade Center (WTC) presumption (see Administrative Code of City of NY § 13-252.1 [1] [a]), under which an officer’s disability or death as a result of a qualifying condition is presumed to be caused by his or her exposure at the WTC site for purposes of benefit upgrades. The common issue presented is whether the pension fund respondents produced competent evidence to rebut the WTC presumption accorded to petitioners’ claims. We hold that respondents did not meet their burden of disproving that the officers’ disabilities or death were causally related to their work at the World Trade Center and related sites. We therefore affirm in Bitchatchi and Macri and reverse in Maldonado.

L

Police officers employed by the New York City Police Department (NYPD) who become disabled may apply for ordinary disability retirement (ODR) benefits or accidental disability retirement (ADR) benefits. ODR benefits, generally comprised of a taxable pension of one half of the officer’s salary, are payable if the officer is “physically or mentally incapacitated for the performance of duty and ought to be retired” (Administrative Code of City of NY § 13-251). ADR benefits are more generous—a tax-free pension of three quarters of the officer’s salary—but eligibility requires an additional showing that the officer’s disability is the “natural and proximate result of an accidental injury received in . . . city-service” (Administrative Code of City of NY § 13-252). If a police officer dies as the result of a work-related accident, the officer’s beneficiaries may recover line-of-duty death benefits, generally equating to the officer’s full salary (see Administrative Code of City of NY § 13-244; General Municipal Law § 208-f).

A claimant filing for ADR benefits ordinarily has the burden of proving causation in an administrative proceeding. But as part of the legislature’s response to the World Trade Center tragedy, a new statute was enacted creating a presumption in favor of ADR benefits for police officers who performed rescue, recovery or cleanup operations at specified locations, including the World Trade Center and the Fresh Kills Landfill. Under the WTC presumption, the pension fund bears the initial burden of proving that a claimant’s qualifying condition was not caused by the hazards encountered at the WTC site:

“Notwithstanding any provisions of this code or of any general, special or local law, charter or rule or regulation to the contrary, if any condition or impairment of health is caused by a qualifying World Trade Center condition as defined in section two of the retirement and social security law, it shall be presumptive evidence that it was incurred in the performance and discharge of duty and the natural and proximate result of an accident not caused by such member’s own willful negligence, unless the contrary be proved by competent evidence” (Administrative Code of City of NY § 13-252.1 [1] [a] [emphasis added]).

To take advantage of the presumption, a claimant must have participated in operations at one of the enumerated locations for “any period of time within the forty-eight hours after the first airplane hit the towers” or “a total of forty hours accumulated any time between September eleventh, two thousand one and September twelfth, two thousand two” (Retirement and Social Security Law § 2 [36] [g]). There is no dispute that all of the officers in these appeals fulfilled this requirement. A claimant must also suffer from a statutorily defined qualifying condition, including “new onset diseases resulting from exposure as such diseases occur in the future including cancer” (Retirement and Social Security Law § 2 [36] [c] [v]). Whether the officers’ medical conditions qualified for the enhanced benefits is contested by the pension fund respondents in these three proceedings.

Against this statutory backdrop, we turn to the facts and procedural history underlying the appeals before us.

IL

Bitchatchi

On September 11, 2001, following the terrorist attacks on the World Trade Center, petitioner Karen Bitchatchi, a police officer with the NYPD, participated in rescue and recovery operations at Ground Zero. In the ensuing days, she logged over 60 hours of work at the site. About a year later, petitioner discovered a cyst near her rectum and a biopsy revealed that she had rectal cancer.

Petitioner applied for ADR benefits based on her service at the WTC site. The Medical Board of the New York City Police Department Pension Fund, Article II (the Medical Board) recommended disapproval, stating that the “causal factor” of the cancer was not exposure at the WTC location; instead it was petitioner’s prior ulcerative colitis, a condition that had been surgically addressed about 20 years earlier. To refute this conclusion, petitioner submitted two letters from her oncologist, Dr. Martin Oster, who opined that “her rectal cancer was not related to her ulcerative colitis . . . but rather related to her toxic exposures at the WTC site.” Dr. Oster explained that his conclusion was supported by the “two hit” hypothesis, under which “more than one mutational event is needed to induce cancer, in this case, the two events being colitis followed by exposure to carcinogens at the 9/11 site.” The Medical Board considered Dr. Osier’s evidence but reaffirmed its original recommendation to deny ADR benefits. Respondent Board of Trustees of the New York City Police Pension Fund, Article II (the Board of Trustees) upheld the recommendation by a tie vote, thus awarding petitioner the lesser ODR benefits.

In petitioner’s CPLR article 78 proceeding challenging the Board of Trustees’ denial of her ADR benefits, Supreme Court granted the petition to the extent of remanding the matter to the Board for reconsideration. On remand, the Medical Board again decided that petitioner’s cancer was not causally related to the WTC site for two reasons. First, it cited a 2009 medical journal article to draw a correlation between petitioner’s ulcerative colitis and her cancer. Second, it referenced “clinical data” regarding the growth rates of tumors and found it “highly likely” that the two-centimeter mass discovered in October 2002 was present prior to September 11, 2001. The Board of Trustees subsequently rejected petitioner’s ADR application by a tie vote.

Petitioner brought another article 78 proceeding for judicial review of the Board of Trustees’ determination. Supreme Court granted the petition, annulled the Board of Trustees’ decision and held that petitioner was entitled to ADR benefits as a matter of law (2010 NY Slip Op 30700[U] [2010]). The court found that the Medical Board failed to adduce competent evidence to overcome the statutory presumption that petitioner’s cancer was caused by her activities at the WTC site. The Appellate Division affirmed (86 AD3d 427 [1st Dept 2011]). We granted the Board of Trustees leave to appeal (18 NY3d 807 [2012]).

Macri

Frank Macri, an NYPD police officer, was one of the first responders at the World Trade Center on September 11, 2001 and was on site when the first tower fell. Later that day, he received treatment for his injuries, which included multiple lacerations and smoke inhalation. A chest X ray taken at that time revealed no evidence of lung cancer. Over the next several months, Macri spent about 350 hours participating in the massive recovery and cleanup effort at both Ground Zero and the Fresh Kills Landfill. In July 2002, he sought treatment from an orthopedist for the sudden onset of pain in his back and thigh. The following month, Macri was diagnosed with lung cancer, which had metastasized to his sacrum. Despite years of treatment, the cancer spread, taking Maori’s life in 2007.

Maori’s wife, petitioner Nilda Maori, submitted an application for accidental line-of-duty death benefits based on Maori’s service at the WTC and Fresh Kills Landfill sites. The Medical Board recommended disapproval, explaining that the discovery of metastatic lung cancer in the summer of 2002 precluded WTC exposure as the cause of Maori’s cancer. On remand from the Board of Trustees, the Medical Board reaffirmed its prior determination. “[W]ith a high degree of certainty,” the Medical Board stated that the lung cancer preexisted the events of September 11, 2001, noting that there was “substantial literature” quantitating the “doubling times” of primary pulmonary lung cancers.

In response, petitioner submitted statements from her husband’s doctors to the Board of Trustees. Maori’s treating oncologist, Dr. Jonathan Schwartz, opined that lung cancer was rare among young nonsmokers, like Maori, and that the “documented presence at high levels of carcinogenic substances in air/dust from the ground zero site, and increasing reports of malignancies in the group of first-responders all suggest a very plausible association” between his work and the onset of his lung cancer. In another submission, Maori’s radiation oncologist, Dr. Jamie Cesaretti, indicated that the diagnosis of stage four cancer at “such a young age could be ascribed to 9/11 type exposure.” Maori’s surgeon, Dr. Scott Swanson, likewise asserted that it was “more reasonable than not” that Maori’s WTC exposure precipitated his lung cancer, particularly since he was otherwise a “very healthy gentleman who is a life long nonsmoker.” Based on this new evidence, the Board of Trustees remanded the case to the Medical Board for reconsideration.

The Medical Board adhered to its original recommendation to disapprove ADR benefits. It reiterated its reliance on unspecified “literature” analyzing lung cancer doubling times and stated that “copious data” of survival times, based on the stage of Maori’s cancer when discovered, supported its conclusion that he had lung cancer before September 11, 2001. The Medical Board discounted the evidence offered by Maori’s doctors, characterizing the submissions as mere attempts to raise a “specter of doubt” as to the etiology of his cancer. By a tie vote, the Board of Trustees denied WTC line-of-duty death benefits in favor of ODR survivor’s benefits.

Petitioner brought this article 78 proceeding challenging the Board of Trustees’ determination. Supreme Court granted the petition, annulled the determination and ordered the Board of Trustees to award petitioner WTC death benefits (28 Misc 3d 504 [Sup Ct, NY County 2010]). The court concluded that the Board of Trustees’ reliance on unspecified studies to establish that Maori’s cancer predated and was not caused by his WTC exposure was insufficient to rebut the statutory presumption that his cancer was WTC-related. The Appellate Division affirmed (92 AD3d 53 [1st Dept 2011]). We granted leave to appeal to the Board of Trustees and Raymond Kelly, as Police Commissioner of the City of New York and Chairman of the Board of Trustees (collectively, the Board of Trustees) (18 NY3d 810 [2012]).

Maldonado

Beginning on September 12, 2001, petitioner Eddie Maldonado, an NYPD police officer, spent more than 40 hours working in connection with the recovery efforts at the WTC site. Prior to these WTC activities, in the summer of 2001, he noticed what he described as a “pulling sensation” in his left upper leg and, just prior to September 11th, he felt a walnut-sized lump in his left thigh. The mass grew to the size of a softball by November 2001, when a biopsy confirmed that it was cancerous.

Petitioner filed an application for ADR benefits predicated on his work at the WTC site. The Medical Board recommended disapproved because it found that “the proximity of the diagnosis of the disease to the September 11, 2001 World Trade Center exposure is competent evidence that the exposure was not the etiology of the sarcoma.” Petitioner’s oncologist, Dr. Max Sung, responded that there was a “possibility” that the WTC exposure “stimulated” and “accelerated” the growth of petitioner’s tumor. The Medical Board rejected Dr. Sung’s evidence as speculative and reaffirmed its previous decision. The Board of Trustees, by a tie vote, denied petitioner’s application for ADR benefits and awarded him ODR benefits.

In his article 78 proceeding seeking to annul the Board of Trustees’ denial of ADR benefits, petitioner urged that his cancer was aggravated by his exposure to the toxins at the WTC site. Supreme Court denied the petition and dismissed the proceeding. The Appellate Division affirmed, holding that “credible evidence supports the Medical Board’s determination, adopted by the Board of Trustees, that the aggravation of petitioner’s cancer was not caused by the World Trade Center site conditions” (86 AD3d 516, 520 [1st Dept 2011]). The Court therefore concluded that “respondents rebutted the World Trade Center presumption” {id. at 520-521). We granted petitioner leave to appeal (18 NY3d 808 [2012]).

m.

Addressing Bitchatchi and Maori first, the Board of Trustees contends that the courts below erred in annulling its determinations to deny ADR and line-of-duty death benefits. It acknowledges that the WTC presumption applies to these two cases but asserts that the Medical Board’s findings that the police officers’ cancers were not etiologically related to their WTC exposures were rationally based and met the competent evidence standard necessary to rebut the statutory presumption. The Board of Trustees submits that the courts below improperly weighed the evidence and substituted their own judgment for that of the Board. Petitioners respond that the Board of Trustees failed to adduce competent evidence to rebut the presumption and, as a result, they were properly awarded the benefit upgrades.

Although we have not had occasion to consider the WTC presumption, we have generally addressed the proper standard of judicial review of a split vote by the Board of Trustees that results in the denial of ADR benefits. A decision by the Board of Trustees that a disability was not caused by a service-related accident will be upheld provided it is supported by “credible evidence” in the record (see Matter of Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139, 147 [1997]; Matter of Borenstein v New York City Employees’ Retirement Sys., 88 NY2d 756, 761 [1996]). Credible evidence “is evidence that proceeds from a credible source and reasonably tends to support the proposition for which it is offered” (Meyer, 90 NY2d at 147). Furthermore, “it must be evidentiary in nature and not merely a conclusion of law, nor mere conjecture or unsupported suspicion” {id.).

The legislature created the WTC presumption to benefit first responders because of the evidentiary difficulty in establishing that non-trauma conditions, such as cancer, could be traced to exposure to the toxins present at the WTC site in the aftermath of the destruction. Hence, unlike ordinary ADR claimants, first responders need not submit any evidence—credible or otherwise—of causation to obtain the enhanced benefits. Nevertheless, the legislature did not create a per se rule mandating ADR benefits for all eligible responders. Rather, it provided that a pension fund could rebut the presumption by “competent evidence.” Under this carefully calibrated framework, we believe that the competent evidence contemplated by the WTC presumption may be equated with the well-established credible evidence standard, provided that the pension fund bears the burden of coming forward with affirmative evidence to disprove causation (see generally Matter of Goldman v McGuire, 64 NY2d 1041 [1985], affg for reasons stated below 101 AD2d 768, 770 [1st Dept 1984] [treating competent evidence and credible evidence as interchangeable in the context of the Heart Bill statutory presumption]). In other words, unlike the typical application for disability benefits, a pension fund cannot deny ADR benefits by relying solely on the absence of evidence tying the disability to the exposure.

Applying this standard, we agree with the courts below in both Bitchatchi and Maori that the presumption that the officers’ cancerous conditions were caused by their exposure at the WTC site was not rebutted by credible evidence and we therefore affirm. In Bitchatchi, the single journal article cited by the Medical Board to link petitioner’s cancer with her prior ulcerative colitis condition does not support its conclusion. Indeed, the article states that because of “the paucity of data in this realm, the long-term fate ... in the surgical management of ulcerative colitis has yet to be determined.” And even if petitioner’s previous condition put her at a higher risk than most others for this kind of cancer, that fact alone would not rebut her claim that her exposure to the WTC site caused the cancer. Moreover, although the Medical Board referred to “clinical data” as the basis for its view that the two-centimeter mass found in October 2002 would have taken more than 13 months to develop, it failed to include the actual data in the record, effectively precluding us from assessing whether its finding of no-causation was supported by credible evidence. Because the Medical Board bore the burden on the issue of causation, this deficiency in proof is fatal.

Similarly, in Maori, the Medical Board referenced “literature” regarding cancer doubling times and “copious data” as to survival times in concluding that the lung cancer discovered in August 2002 likely predated September 11, 2001 and, therefore, was not caused by the officer’s WTC-related exposures. But the Board failed to identify or include the specific literature or data upon which it relied, falling short of what is required by the statute. Even though petitioner did not bear the burden of proof on causation, she submitted letters from three oncologists opining that her husband’s cancer was caused by his work at the WTC and Fresh Kills Landfill sites, particularly in view of his age and nonsmoker status. Consequently, we agree with the courts below that petitioner was entitled to WTC line-of-duty death benefits.

We further reject the Board of Trustees’ fallback contention in these two cases that, even if it failed to rebut the presumption, the courts below erred in awarding petitioners ADR and line-of-duty death benefits as a matter of law. The Board relies on Matter of Canfora v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II (60 NY2d 347, 352 [1983])—a nonpresumption case—where we stated that “[t]he denial of accidental disability benefits in consequence of the tie vote can be set aside on judicial review only if the courts conclude that the retiree is entitled to the greater benefits as a matter of law.” In its view, since petitioners failed to affirmatively prove as a matter of law that the cancerous conditions were caused by working at the WTC site, they are not entitled to the enhanced benefits. At the very least, the Board asserts, the cases should be remanded for further administrative proceedings. But the Board misapprehends the significance of the WTC presumption. When the Board fails to rebut the presumption, the WTC statute presumes causation and contemplates the award of ADR benefits—even if the claimant offers no medical proof. In these two cases, the presumption was not rebutted and, therefore, petitioners were entitled to the benefit upgrades.

IV

Turning to Maldonado, the Board of Trustees raises a threshold argument that the WTC presumption is inapplicable in this case because petitioner concedes that he had cancer prior to September 11, 2001. The Board points out that the statutory definition of a qualifying World Trade Center condition requires that there be “no evidence of the qualifying condition or impairment of health that formed the basis for the disability ... in the relevant medical records, prior to September eleventh, two thousand one” (Retirement and Social Security Law § 2 [36] [a] [iii]; see also id. [c] [v] [providing that the presumption applies to “new onset diseases resulting from exposure” including cancer]; cf id. [c] [iii], [iv] [describing other diseases where the presumption applies even in cases of aggravation]). Accordingly, the Board asserts that the burden of proof remained with petitioner to demonstrate that his exposure aggravated or exacerbated the preexisting cancer (see Matter of Tobin v Steisel, 64 NY2d 254, 257 [1985]). Although this may be a valid argument, the Board failed to preserve it for our review, so we apply the statutory presumption to petitioner’s claim that his cancer was aggravated by the exposure, as did the courts below.

Under the statutory burden of proof, we believe the Board of Trustees did not satisfactorily rebut the presumption with credible evidence. Petitioner’s cancerous tumor grew from the size of a walnut to a softball between September 2001 and November 2001. The Board and the courts below focused on the equivocal nature of the evidence submitted by petitioner in his attempt to demonstrate that the cancer was aggravated by his WTC exposure. In particular, they rejected the opinion of Dr. Sung provided in two letters as speculative and conjectural. But in light of the presumption, petitioner carried no burden to offer any evidence of causation. Simply put, the Board could not rely on petitioner’s deficiencies to fill its own gap in proof. Because the record contains no affirmative credible evidence to rebut the presumption, we reverse and hold that petitioner is entitled to ADR benefits.

Accordingly, in Bitchatchi, the order of the Appellate Division should be affirmed, with costs; in Maldonado, the order of the Appellate Division should be reversed, with costs, the determination of the Board of Trustees of the New York City Police Department Pension Fund, Article II annulled, and the matter remitted to Supreme Court with directions to remand to the Board of Trustees for further proceedings in accordance with this opinion; and in Maori, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Lippman and Judges Ciparick, Read, Smith and Pigott concur.

In Matter of Bitchatchi v Board of Trustees of the N.Y. City Police Dept. Pension Fund, Art. II and Matter of Maori v Kelly: Order affirmed, with costs.

In Matter of Maldonado v Kelly: Order reversed, with costs, determination of respondent Board of Trustees of the New York City Police Department Pension Fund, Article II, annulled and matter remitted to Supreme Court, New York County, with directions to remand to respondent Board of Trustees for further proceedings in accordance with the opinion herein.

      . Analogous provisions extend the WTC presumption to other classes of first responders (see e.g. Administrative Code of City of NY § 13-353.1 [firefighters]; Retirement and Social Security Law § 363-bb [h] [state police]; Retirement and Social Security Law § 605-b [d] [sanitation workers]). The presumption also applies where a police officer later dies and death benefits are sought (see Administrative Code of City of NY § 13-252.1 [4]).

      . It is a “time-honored procedural practice” that a deadlock by the Board of Trustees on the issue of causation results in the denial of ADR benefits in favor of ODR benefits (see Matter of Walsh v Scoppetta, 18 NY3d 850, 852 [2011] [internal quotation marks and citation omitted]).

      . Jennifer Holder-Murray & Alessandro Fichera, Anal transition zone in the surgical management of ulcerative colitis, 15 World J Gastroenterology No. 7 at 769 (2009), available at http://www.wjgnet.com/1007-9327/15/769.asp.

      . Whether the statutory presumption applies to a claim that a preexisting cancer was aggravated by exposure to the WTC site therefore remains an open question.

      . Since petitioner has been receiving ODR benefits in the interim, the matter should be remitted for a recomputation of the appropriate level of benefits.


text:
    [982 NE2d 1248, 959 NYS2d 115]
    In the Matter of EchoStar Satellite Corporation, Appellant, v Tax Appeals Tribunal of the State of New York et al., Respondents.
    Argued November 14, 2012;
    decided December 18, 2012

      POINTS OF COUNSEL

      Morrison & Foerster LLP, New York City (Paul H. Frankel, Irwin M. Slomka and Kara M. Kraman of counsel), for appellant.
    I. The imposition of use tax on appellant’s purchases of equipment is erroneous as a matter of law. (Matter of Burger King v State Tax Commn., 51 NY2d 614; Matter of American Molasses Co. v McGoldrick, 281 NY 269; Matter of Albany Calcium Light Co. v State Tax Commn., 44 NY2d 986; Matter of Helmsley Enters. v Tax Appeals Trib. of State of N.Y., 187 AD2d 64, 81 NY2d 710.) II. The Appellate Division’s decision violates the interests of substantial justice. III. The Appellate Division’s decision sanctions the violation of the Equal Protection and Due Process Clauses of the U.S. Constitution. (Nordlinger v Hahn, 505 US 1.)

      Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Arnold, Barbara D. Underwood and Andrew D. Bing of counsel), for respondents.
    I. The Tax Appeals Tribunal rationally determined that petitioner did not purchase equipment for resale “as such” but as part and parcel of its primary business purpose of providing satellite TV programming services. (Matter of AGL Welding Supply Co. v Commissioner of Taxation & Fin., 238 AD2d 734; Matter of Savemart, Inc. v State Tax Commn., 105 AD2d 1001; Matter of Albany Calcium Light Co. v State Tax Commn., 44 NY2d 986; Matter of Waste Mgt. of N.Y. v Tax Appeals Trib. of State of N.Y., 185 AD2d 479; Matter of 21 Club,

      Inc. v Tax Appeals Trib. of State of N.Y., 69 AD3d 996; Matter of U-Need-A-Roll Off Corp. v New York State Tax Commn., 67 NY2d 690; Matter of Ace Provision & Luncheonette Supply v Chu, 135 AD2d 1070; Matter of Custom Mgt. Corp. v New York State Tax Commn., 148 AD2d 919; Matter of Atlas Linen Supply Co. v Chu, 149 AD2d 824; Matter of Helmsley Enters. v Tax Appeals Trib. of State of N.Y., 187 AD2d 64.) II. This Court’s decision in Matter of Burger King v State Tax Commn. (51 NY2d 614 [1980]) does not govern this case. (Matter of American Molasses Co. v McGoldrick, 281 NY 269; Matter of Colgate-Palmolive-Peet Co. v Joseph, 308 NY 333; Matter of Dairylea Coop. v State Tax Commn., 41 AD2d 312; Celestial Food of Massapequa Corp. v New York State Tax Commn., 63 NY2d 1020; Matter of U-Need-A-Roll Off Corp. v New York State Tax Commn., 67 NY2d 690; Servomation Corp. v State Tax Commn., 51 NY2d 608; Matter of Helmsley Enters. v Tax Appeals Trib. of State of N.Y., 187 AD2d 64; Matter of Atlas Linen Supply Co. v Chu, 149 AD2d 824; Matter of XO N.Y., Inc. v Commissioner of Taxation & Fin., 51 AD3d 1154; Matter of Saltzman v New York State Tax Commn., 101 AD2d 910.) III. Petitioner’s constitutional claims are unpreserved. (Matter of XO N.Y., Inc. v Commissioner of Taxation & Fin., 51 AD3d 1154; Matter of Peckham v Calogero, 12 NY3d 424; Matter of Aetna Cas. & Sur. Co. v Tax Appeals Trib. of State of N.Y., 214 AD2d 238.)
   OPINION OF THE COURT

Graffeo, J.

On this appeal we are asked to determine whether a satellite television provider’s purchases of equipment that is used to deliver programming to its customers were exempt from sales and use taxes under New York’s Tax Law.

Petitioner EchoStar Satellite Corp. (EchoStar), a national satellite television provider, better known as “DISH Network,” operates a number of orbital satellites that broadcast television signals directly to the homes of millions of its subscribers. In order to deliver the programming, EchoStar supplies a customer with a satellite dish and other equipment, including a “low-noise block feedhorn” (LNBF), a set-top box receiver, a switch and a remote control. The LNBF is a component part, attached to the dish, that receives the satellite signals and converts them to a lower frequency for transmittal to a receiver. The receiver, in turn, translates the data and projects images onto a television screen. The switch allows a subscriber to watch different programs on multiple receivers.

Prior to 2000, EchoStar required a subscriber to purchase the necessary equipment at the commencement of a service contract. In May 2000, it changed this practice and began renting the equipment to subscribers through customer lease agreements. Under this new procedure, EchoStar would take possession of the equipment upon the termination of a customer’s programming service and refurbish the equipment for use by another subscriber. Although EchoStar did not issue separate bills for the equipment rentals, its invoices separately listed a $5 monthly “equipment fee” for each receiver. The lease agreement also indicated that the annual cost for an additional receiver was $60, or $5 per month.

Between March 2000 and February 2004, EchoStar did not pay sales or use taxes on its equipment purchases from the manufacturers. Instead, EchoStar collected sales taxes from its customers at the time the equipment was leased to them. The sales taxes collected from the subscribers—totaling approximately $2 million—were remitted to the Department of Taxation and Finance (the Department). Following a lengthy audit in 2005, the Department issued a notice of determination assessing EchoStar an additional $1.8 million in use taxes for the same period on the basis that EchoStar owed taxes at the time it purchased the equipment from manufacturers. When the Department refused to credit the $2 million EchoStar had previously remitted toward the new assessment, EchoStar paid the additional taxes under protest.

After a hearing, the Administrative Law Judge agreed with the Department’s analysis and, on appeal, respondent Tax Appeals Tribunal (the Tribunal) upheld the notice of determination. Although EchoStar charged its customers an equipment fee, the Tribunal did not consider this arrangement the equivalent of a “lease” and it viewed the equipment as “purely incidental” to EchoStar’s primary business of selling satellite television programming.

The Appellate Division confirmed the Tribunal’s determination in a subsequent CPLR article 78 proceeding, similarly holding that “the equipment was provided as a part of petitioner’s services and the additional charge in its monthly bills was merely an ‘add-on’ for the use of the equipment, not a true rental” (Matter of EchoStar Satellite Corp. v Tax Appeals Trib. of the State of N.Y., 79 AD3d 1307, 1309 [3d Dept 2010] [some internal quotation marks and punctuation omitted]). We granted EchoStar’s motion for leave to appeal (17 NY3d 701 [2011]).

Article 28 of the Tax Law sets forth the definitions of a “retail sale” and a “sale” and creates an exemption from sales and use taxes for purchases made for resale. Specifically, Tax Law § 1110 (a) states that “[e]xcept to the extent that property or services have already been or will be subject to the sales tax under this article, there is hereby imposed on every person a use tax for the use within this state ... of any tangible personal property purchased at retail” (emphasis added). A “retail sale” is described as “[a] sale of tangible personal property to any person for any purpose, other than . . . for resale as such” (Tax Law § 1101 [b] [4] [i] [A] [emphasis added]). In other words, the statute imposes a use tax on EchoStar’s purchases except for property that is bought for “resale as such.” The resale exemption is the focus of EchoStar’s challenge to the Tribunal’s determination.

Although the statute does not define the term “resale,” we have deemed its definition to be coextensive with that of “sale” (see Matter of Albany Calcium Light Co. v State Tax Commn., 44 NY2d 986, 987 [1978]). Tax Law § 1101 (b) (5) broadly provides that the term “sale” includes “[a]ny transfer of title or possession or both, . . . rental, lease or license to use or consume ... in any manner or by any means whatsoever for a consideration, or any agreement therefor.” Hence, we have made clear that “a purchaser who acquires an item for the purpose of sale or rental . . . purchases it for resale within the meaning of the statute” (Matter of Albany Calcium Light Co., 44 NY2d at 987).

EchoStar asserts that it obtained the satellite equipment in order to resell or lease it to its customers, qualifying its equipment purchases for the resale exemption. Consistent with this position, it contends that it properly collected taxes upon the subsequent leases of the equipment to its subscribers. The Department concedes that in those instances when EchoStar’s customers exercised the option to purchase the equipment, the transactions were eligible for the resale exclusion. But it maintains that the other arrangement—the furnishing of equipment for a monthly fee—did not qualify as a “lease” and, consequently, was not a resale under the Tax Law. The dispositive issue then is whether EchoStar “leased” the equipment to its customers within the meaning of the statute. We agree with EchoStar that it did and therefore reverse the order of the Appellate Division.

Our analysis begins with Matter of Galileo Intl. Partnership v Tax Appeals Trib. of Dept. of Taxation & Fin. of State of N.Y. (31 AD3d 1072 [3d Dept 2006]), which informs the outcome of this appeal. In Galileo, the Appellate Division upheld the Department’s assessment of sales and use taxes on a company’s provision of computer equipment to its service subscribers (id. at 1075). The company operated a proprietary computer reservation system through which its clients (mostly travel agencies) could obtain information and make reservations for flights, car rentals, hotels and cruises. Together with the software, the company furnished the subscribing agencies with computer equipment for use in accessing the system. The company retained title to the equipment and, presumably, the right to repossess it upon termination of the service agreement. In confirming the Department’s determination that the provision of the equipment constituted a lease arrangement, the Appellate Division emphasized that the subscriber agreements were structured as leases, the contracts referred to the computers as being “leased,” the monthly charges were proportional to the volume of the equipment provided, and the travel agents could use the terminals for business purposes other than connection to the company’s reservation system (id. at 1074-1075). As a result, the tax was properly imposed on the company’s leasing of the equipment to its customers rather than at the time it purchased the equipment from manufacturers.

The Department’s imposition of a use tax on EchoStar’s initial procurement of the satellite equipment in this case is difficult to reconcile with Galileo, where it assessed the tax on the subsequent equipment leases. Moreover, nearly all of the factors considered in Galileo to denote a lease are present here. Competent evidence adduced at the administrative hearing indicates that EchoStar’s customer agreements were structured as leases, distinguishing the service component from the provision of equipment; the equipment rental fees were directly proportional to the number of receivers provided; and the equipment charges were separately delineated on monthly invoices. The record demonstrates that EchoStar plainly satisfied its burden of proving that, as in Galileo, “the transfer of equipment was a lease and that such was a significant part of the transaction, not merely a trivial element of a contract for services” (id. at 1075). Hence, we conclude that EchoStar purchased the equipment for “resale” consistent with the definition of the tax exemption afforded by Tax Law § 1101 (b) (4) (i) (A).

Contrary to the Department’s position, we see no distinction, for the purpose of the resale exclusion, between the outright purchase of equipment and its temporary transfer for valuable consideration. Both types of transactions fit comfortably within the statutory definition of “sale” as they involve either the transfer of title or possession (see Tax Law § 1101 [b] [5]). Furthermore, EchoStar’s provision of satellite equipment is far from “incidental.” Unlike the petitioner in Matter of Albany Calcium Light Co. (44 NY2d at 988), whose rental charges were conditioned on the customers’ failure to timely return its property, EchoStar’s equipment charges were consistently part of its business model, either in the context of purchases or incorporated within its lease agreements.

Finally, it cannot be overlooked that the result sought by the Department—the State’s retention of the $2 million in sales tax that EchoStar collected from its customers when it leased the equipment in addition to the levy of $1.8 million in use taxes on EchoStar’s equipment purchases from the manufacturers— would amount to an unwarranted windfall to the State (see Matter of Burger King v State Tax Commn., 51 NY2d 614, 623 [1980] [the general purpose underlying our sales tax law “is to impose the tax only upon the sale to the ultimate consumer, at which time the price paid for the taxable item would presumably be at its highest”]; Matter of Pantelopoulos v Commissioner of Taxation & Fin., 213 AD2d 768, 769 [3d Dept 1995]). As such, the determination of the Tax Appeals Tribunal must be annulled and EchoStar is entitled to a refund of the $1.8 million payment plus interest.

Accordingly, the judgment should be reversed, with costs, respondent Tax Appeals Tribunal’s determination annulled and the matter remitted to the Appellate Division, Third Department, with directions to remand to respondent Tax Appeals Tribunal for further proceedings in accordance with this opinion.

Chief Judge Lippman and Judges Ciparick, Read, Smith and Pigott concur.

Judgment reversed, with costs, determination of respondent Tax Appeals Tribunal annulled, and matter remitted to the Appellate Division, Third Department, with directions to remand to respondent Tax Appeals Tribunal for further proceedings in accordance with the opinion herein.

      . According to EchoStar’s senior accounting manager, the company continued to offer the purchase option to its subscribers but approximately 90% of them elected to lease the equipment during the time period relevant to this proceeding.

      . Together with interest, this second payment totaled more than $2.4 million.

      . The use tax is generally employed “to complement the sales tax by taxing property brought into and used within the State under circumstances that prevent collection of the sales tax” (Matter of Datascope Corp. v Tax Appeals Trib. of State of N.Y., 196 AD2d 35, 39 [3d Dept 1994]). In this case, Echo-Star’s purchases of the equipment at issue occurred outside the state.

      . A “[p]urchase at retail” is similarly defined as “[a] purchase by any person for any purpose other than” for resale as such (Tax Law § 1101 [b] [1]).

      . The Department attempts to distinguish Galileo on the basis that Echo-Star’s customers could not use the satellite equipment for any other purpose. However, we do not consider this distinction to be dispositive.