author: Pigott, J.

text:
    [960 NE2d 435, 936 NYS2d 666]
    The People of the State of New York, Appellant, v Chris McAlpin, Respondent.
    Argued October 20, 2011;
    decided November 22, 2011

      APPEARANCES OF COUNSEL

      Cyrus R. Vance, Jr., District Attorney, New York City (Grace Vee and David M. Cohn of counsel), for appellant.

      Legal Aid Society, Criminal Appeals Bureau, New York City (Andrew C. Fine, Eve Kessler and Steven Banks of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant pleaded guilty to robbery in the second degree with the understanding that he would be adjudicated a youthful offender and receive a term of probation if he satisfied specified conditions. At the plea proceeding, Supreme Court further advised defendant that, if he violated the terms of the youthful offender agreement, the sentencing agreement would be vacated and the court could impose a prison sentence of at least 3x/2 years, with a potential maximum sentence of 15 years. Defendant violated several terms of the youthful offender agreement and, at the subsequent sentencing proceeding, the court imposed a determinate prison sentence of 3x/2 years plus five years of postrelease supervision.

On appeal, defendant contended that reversal was required under People v Catu (4 NY3d 242 [2005]) because, in describing the alternate sentence that defendant might receive if he violated the conditions imposed for obtaining youthful offender status, the court failed to reference the potential imposition of postrelease supervision. The Appellate Division reversed defendant’s conviction and vacated his plea in a divided decision (68 AD3d 431 [2009]) and one of the dissenting Justices granted defendant leave to appeal to this Court.

Having elected to advise defendant of the consequences that might flow from the violation of the youthful offender agreement, the court referenced only a prison term, omitting any mention of the possibility of postrelease supervision, thereby giving defendant an inaccurate impression concerning the court’s sentencing options. Accordingly, we conclude that reversal and vacatur of the plea was appropriate.

Although the dissent concludes in reliance on People v Murray (15 NY3d 725 [2010]) that defendant is foreclosed from obtaining relief because he failed to object at sentencing when the court first referenced postrelease supervision, we find this case to be distinguishable. In Murray, defendant had been told at the plea proceeding that two years of postrelease supervision would be imposed but was informed at the commencement of sentencing that the court would instead impose a sentence of three years. Because defendant had ample opportunity to object after the initial statement was made and before sentence was formally imposed, we concluded that his failure to preserve the issue in the sentencing court precluded our review. Here, in contrast, the court first mentioned postrelease supervision only moments before imposing the sentence.

We are also unconvinced that the court’s brief remark at sentencing to the effect that it had previously advised defendant that he would receive a sentence of 3½ years and five years’ postrelease supervision if he violated the agreement, which defense counsel acknowledged, conclusively established that the court had advised defendant of the potential postrelease supervision sentence prior to accepting the plea. There is no indication in the record that the court or either counsel had reviewed the plea transcript or had focused specifically on whether, during the plea proceeding, the court had discussed the possibility of postrelease supervision — a potential sentence that was not part of the original agreement.

Pigott, J.

(dissenting). The case before us raises two important issues, but the majority addresses neither. The first issue is whether a defendant may raise a challenge under People v Catu (4 NY3d 242 [2005]) on appeal when he made no objection to postrelease supervision (PRS) at sentencing, and his defense counsel agreed with the sentencing court’s statement on the record that the defendant had been informed of post-release supervision at the plea proceeding. The second issue is whether a sentencing court violates Catu when it imposes PRS, as part of an enhanced sentence following violation of a plea agreement, if the defendant was not informed by the court at the plea proceeding that PRS would be part of his sentence should he violate the agreement. The majority seems to ignore the preservation issue, but then fails to answer the second question directly.

Defendant was arrested in possession of an electronic game console that had been forcibly taken from a subway passenger. He was charged by indictment with two counts of robbery in the second degree. He appeared with his attorney in Supreme Court, and pleaded guilty to one of the counts in full satisfaction of the indictment. The court placed him on interim probation for up to one year. As long as he reported regularly to a probation officer, successfully completed a youth program, and was not rearrested, he would receive youthful offender treatment, and a sentence of probation. If, on the other hand, he failed to fulfil these requirements, he would receive “state prison [time], minimum is three and a half years and the maximum fifteen years.” No mention of PRS appears on the record.

Seven months later, defendant appeared before the same Justice. He had been arrested twice in the interim, and had failed to complete the youth program. The judge, referring to the plea proceeding, stated that she had told defendant that if he were not successful in abiding by the conditions of interim probation, he would “have to go to prison for 3-1/2 years and, of course, 5 years of Post-Release Supervision.” Significantly, defendant’s counsel added, “Yes; I remember that, Judge.” No contradiction of that statement appears in the record.

The court imposed the minimum sentence of S1/^ years’ imprisonment, to be followed by five years’ PRS. At no point during the sentencing did defendant object to the PRS or state any disagreement with his counsel’s recollection that he had been informed at the plea proceeding of the potential for PRS.

However, on appeal, defendant, for the first time, argued that Supreme Court had failed to inform him at the plea proceeding of the PRS component of the potential enhanced sentence, thereby violating Catu. Defendant persuaded the Appellate Division, which reversed the judgment of conviction, vacated his plea, reinstated the indictment, and remanded the matter to Supreme Court for further proceedings thereunder (68 AD3d 431 [2009]). Two Justices forcefully dissented, and one granted the People leave to appeal to this Court.

In my view, under People v Louree (8 NY3d 541 [2007]) and People v Murray (15 NY3d 725 [2010]), defendant was required to preserve his Catu challenge. Louree holds that preservation is normally not necessary in order for this Court to address “a nonconforming PRS sentence where the defendant has not been made aware of that part of the sentence before its imposition” (Murray, 15 NY3d at 726-727, citing Louree, 8 NY3d at 546). However, we added an important caveat to Louree in Murray. There, Supreme Court had informed defendant that he would probably be treated as a youthful offender if he met certain conditions. If he did not, the court stated that it would sentence him as an adult to two years’ imprisonment and two years’ PRS. After the defendant violated the plea deal, and was returned for sentencing as an adult, the court informed him, at the beginning of the proceeding, that it would impose three years of PRS, instead of two. We held that Murray was required to preserve his Catu challenge because he “was advised of what the sentence would be, including its PRS term, at the outset of the sentencing proceeding” and therefore “could have sought relief from the sentencing court in advance of the sentence’s imposition” (Murray, 15 NY3d at 727 [emphasis added]).

In Murray, we carefully distinguished Louree. In the earlier case, defendant was not informed about the specific terms of PRS early enough to lodge an objection, because it was first mentioned when the sentence was actually imposed. Under those circumstances, it was impossible for the defendant to make a CPL 220.60 (3) motion to withdraw his plea, since such a motion must be filed “before the imposition of sentence” (CPL 220.60 [3]). In Murray, on the other hand, defendant had time in which to make a motion, but failed to do so. Here, as in Murray, defendant was made aware of the specific period of PRS early enough in the sentencing proceeding to allow him time to seek withdrawal of the plea under CPL 220.60 (3) or otherwise object to the imposition of PRS. If this was the first time he heard about PRS arising from these charges, defendant should not have sat in silence while his defense counsel conceded that he had been informed about PRS at the plea proceeding. Consequently, defendant was obliged to object before imposition of sentence, in order to preserve his Catu objection.

Given Supreme Court’s recollection that it had told defendant that five years’ PRS was part of the plea bargain, defense counsel’s confirmation thereof, and the absence of a timely motion to withdraw the plea or any objection to PRS after defendant was given adequate notice of the term, I would decide this appeal on preservation grounds.

It follows then that because the Appellate Division’s reversal depended on reaching an issue that is unpreserved, under our precedent, the reversal was not on the law (CPL 450.90 [2] [a]), and therefore the People’s appeal should be dismissed.

Were I to set aside our holding in Murray, and assume that the PRS issues need not be preserved, I would reverse. The sentencing court stated on the record that it had advised defendant of the potential of PRS at the plea proceeding, and defense counsel agreed. If defendant wishes to dispute the accuracy of Supreme Court’s recollection, his recourse is not a direct appeal. The record demonstrates that defendant was timely informed of PRS, and we are bound by that record.

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith and Jones concur; Judge Pigott dissents in an opinion.

Order affirmed in a memorandum.


source: Caselaw Access Project

author: Chief Judge Lippman

license: Public Domain

text:
    [960 NE2d 430, 936 NYS2d 661]
    The People of the State of New York, Respondent, v Geraldo Cruz, Appellant.
    Argued October 20, 2011;
    decided November 22, 2011

      APPEARANCES OF COUNSEL

      Legal Aid Society, Appeals Bureau, Riverhead (Kirk R. Brandt and Robert C. Mitchell of counsel), for appellant.

      Thomas J. Spota, District Attorney, Riverhead (Glenn D. Green and Michael Brennan of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Naomi Edwards encountered an intruder in the kitchen of her home in Brentwood, Suffolk County, on the afternoon of January 3, 2007. The man appeared to her to be “Puerto Rican of . . . light skinned African American.” He pulled a baseball cap down over his face and ran out of her house.

Edwards’s neighbor, Raquel Oliveria, had seen a man on a light blue 10-speed bicycle riding slowly back and forth on the street, before entering Edwards’s driveway. He was wearing a black shirt, blue jeans, and a black hat. The man parked his bicycle in the driveway, and looked around. He attempted to open two windows at Edwards’s house. Oliveria lost sight of the man when he walked to the side of Edwards’s house where the kitchen door was located. A few minutes later, Oliveria saw the man as he fled the house. He retrieved his bicycle and pedaled away.

Edwards and Oliveria called 911. Police Officer Charles Ross was dispatched to look for a Hispanic male, riding a blue bicycle, and possibly wearing a black shirt and black hat. Within about three minutes, Ross saw a man fitting that description, on a blue, 10-speed bicycle, at an intersection about a quarter of a mile from Edwards’s house. The man, defendant Geraldo Cruz, said he was on his way to a friend’s house.

Subsequently, Police Officer Sean Petersen interviewed Edwards and Oliveria. Officer Petersen asked Oliveria to accompany him to view the suspect. At the “showup,” Oliveria identified Cruz as the man she had seen trying to break into her neighbor’s house. However, she did so, not by recognizing his face, but on the basis of the clothes he was wearing and the bicycle he was riding.

Cruz was arrested and held in prison on a parole violation. While incarcerated, he wrote three letters to Edwards, “asking her to please come to court” to identify him. Cruz was charged with burglary in the second degree and, on the basis of the letters, three counts of tampering with a witness in the fourth degree. The witness tampering charges were later dismissed pursuant to the People’s application.

County Court held Wade and Sandoval hearings. At the latter, it emerged that Cruz had four felony and four misdemeanor convictions. The record contains no evidence that Cruz behaved disruptively during the hearings.

Jury selection began in County Court on February 14, 2008. At voir dire, defense counsel, finding Cruz in “leg shackles,” asked for the basis for restraining his client. County Court gave no immediate explanation, but noted that a curtain of opaque bunting had been placed around the defense table to conceal the restraints. The jury, County Court opined, would “never know anything about the shackles.” Defense counsel strenuously objected, arguing that the jury would infer from the presence of the curtain around the defense table but not the prosecution table that Cruz was shackled.

Subsequently, County Court made the following remarks, regarding Cruz’s shackles:

“[Cruz] is no stranger to the criminal justice system. He has been a threat before to society. Also, my concern is that it’s been explained to him should he not prevail on this matter he’s looking at a long, long time. . . . His motive to destroy the trial or to take vengeance upon anybody who testifies or just to disrupt the proceedings, based upon . . . the potential for what he’s looking at might be an incentive.”

County Court also stated that the incidence of “problems” in courtrooms had “risen dramatically over the last few years.” Finally, the judge mentioned that Cruz was not being “singled out,” adding that shackling had been his “policy . . . with numerous cases.”

The next day, County Court added the following statement about the shackling: “[S]o the record is clear, . . . the shackling

. . ..was not my independent determination. It was recommended to me by the security staff.” County Court then denied defense counsel’s request for a hearing on the matter.

During his trial, Cruz was made to wear shackles on his ankles. Bunting was draped around the defense table, but not the prosecution table. The restraints were removed before Cruz was escorted by court officers to the witness stand to testify.

Oliveria and Edwards testified at the trial. The jury heard testimony concerning Oliveria’s showup identification of Cruz. Edwards identified Cruz’s hat and shirt as those the intruder had worn. For his part, Cruz testified that the bicycle he was riding when arrested was not his own; seeing the bicycle lying abandoned on the street, he had taken it a few moments before the police stopped him.

The jury found Cruz guilty of burglary in the second degree. Following his conviction, Cruz appealed, arguing, among other things, that the shackling violated his constitutional rights. The Appellate Division affirmed County Court’s judgment of conviction (79 AD3d 1145 [2010]). A Judge of this Court granted Cruz leave to appeal, and we now reverse.

Federal constitutional law “prohibits the use of physical restraints visible to the jury during a criminal trial, absent a court determination that they are justified by an essential state interest specific to the defendant on trial” (People v Clyde, 18 NY3d 145, 152 [2011] [decided today] [internal quotation marks and ellipsis omitted], quoting Deck v Missouri, 544 US 622, 624 [2005]). “Trial courts may not shackle defendants routinely, but only if there is a particular reason to do so” (Deck, 544 US at 627).

On the record before us, we cannot conclude that the shackles were not visible to the jury, or that the jury, seeing the bunting around the defense table and not the prosecutor’s, would not have inferred that it was there to hide shackles on Cruz’s legs. Moreover, County Court did not place on the record any findings, particular to Cruz, justifying the use of leg irons. The reasons given by County Court would apply to most repeat offenders, and, in its final statement on the matter, County Court conceded that it had not reached its own “independent determination” as to the necessity of shackles. Consequently, the use of leg irons was a violation of Cruz’s constitutional rights under Deck

Harmless error analysis is applicable to a violation of Deck (see People v Clyde, 18 NY3d 145 [2011] [decided today]). Here, the People concede that the evidence against Cruz was not overwhelming, so that they cannot meet their burden of showing that any constitutional error was harmless beyond a reasonable doubt.

Chief Judge Lippman

(concurring as to the result). Deck v Missouri (544 US 622 [2005]) addresses what the Constitution requires to rectify the due process violation occurring “where a [trial] court, without adequate justification, orders the defendant to wear shackles that will be seen by the jury ” (id. at 635 [emphasis supplied]). In contrast to Deck (see id. at 634), there is no indication that the leg irons defendant Cruz was forced to wear during his trial were, in fact, visible to the jury and I do not believe that this case comes within Deck’s analytical framework by reason of the circumstance that there may exist some residual, unnegated possibility that defendant’s shackles were seen or that their existence was inferred (see majority mem at 944-945). Thus, while it is clear that People v Clyde (18 NY3d 145 [2011] [decided today]), involving the visible, indeed blatant, use of shackles without record justification, was necessarily decided in accordance with Deck, it is not similarly clear that the analytic course charted in Deck must be followed here. The question posed on this appeal — one that did not have to be addressed in Clyde — is what the appellate response should be when a criminal defendant has, without adequate record justification, been forced to wear a physical restraint during trial, but there is absent from the record any indication that the restraint was actually perceived by the jury. This is an inquiry to which I believe we have already spoken as a matter of state law in People v Buchanan (13 NY3d 1, 4 [2009]).

In Buchanan, as here, there was no indication that the jury had become aware of the restraint, a stun belt, which was concealed by Buchanan’s outer clothes. And, the People argued as they do here that “Deck is distinguishable because the stun belt here was not visible to the jury” (Buchanan, 13 NY3d at 4). We replied that it was not necessary to decide whether there had been a constitutional due process violation since “as a matter of New York law . . . it is unacceptable to make a stun belt a routine adjunct of every murder trial, without a specifically identified security reason” (Buchanan, 13 NY3d at 4). While shackles are different from stun belts, the principal underlying rationale for requiring judicial justification for restraining a defendant at trial is the same. A defendant is presumed innocent and must be treated by the State, to the extent possible, in a way that is consonant with that presumption. As we said in People v Roman, “[a] defendant is presumed innocent and he is entitled to appear in court with the dignity and the self-respect of a free and innocent man” (35 NY2d 978, 979 [1975]). If a stun belt may not, under New York law, be a routine adjunct of a murder trial, neither may shackles be a routine adjunct of a trial for burglary.

We did not engage in harmless error analysis in Buchanan, but rather reversed, apparently, solely by reason of the error in requiring the restraint without case specific record justification. While we did not explain this summary approach, there is much to recommend it.

Although the mere hypothesis that an unjustified shackling has affected a verdict — and that is all there is here — is not enough to sustain a Deck analysis, since the essential premise of requiring the People to prove beyond a reasonable doubt that the shackling did not contribute to the verdict is that there has been prejudice from the jury’s actual perception of the defendant in restraints, the concern that seems to underlie the Court’s expansion of Deck's applicability is entirely justified. The introduction of a physical restraint into a criminal trial unavoidably risks its discovery, either through mischance or because the elaborate measures taken to keep the restraint from the jury’s awareness will themselves disclose to the jury that there is something about the defendant’s appearance that is being kept from them; as the Court has noted, the misgivings of defendant’s attorney as to the efficacy of the bunting used to shield the shackles from the jury’s eyes — particularly when it was used only at the defense table — were not misplaced. These risks to the fairness of the proceeding are not ones that should be routinely undertaken. Nor should other likely consequences of employing restraining devices on a defendant at trial — the burdening of representational rights and the right to be present at all material stages of the trial and, indeed, to testify in one’s behalf — be minimized, even though the manner in which they affect a verdict may be indirect and exceedingly difficult to account for accurately in a harmless error analysis. For these reasons it would seem prudent to attach a definite consequence to a trial court’s failure to make the findings essential to justify the use of physical restraints — a consequence that does not depend upon the limitations and vagaries of harmless error analysis. That is what we did in Buchanan. Given the very basic interests at stake, and the ease with which they can properly be afforded the judicial consideration they are due, there should be a clear rule that the failure to make a record to justify restraining a defendant at trial will necessitate a new trial. We observed in Buchanan that “a trial court has broad discretion in deciding whether a restraint is necessary for courtroom security” (13 NY3d at 4) and that a formal inquiry was not required so long as the requisite record was made. This is not an onerous condition of a decidedly onerous imposition. There is no reason why it should not be met.

Judges Graffeo, Read, Smith and Pigott concur in memorandum; Chief Judge Lippman concurs in result in an opinion in which Judges Ciparick and Jones concur.

Order reversed, etc.

       Contrary to the concurrence, People v Buchanan (13 NY3d 1 [2009]) is not applicable here. A stun belt has a known potential for extremely painful and humiliating physical effects, which may hinder a defendant’s communications with counsel and participation in his defense. The same is not true of leg irons.


text:
    In the Matter of Andrew William V. Westchester County Department of Social Services, Respondent; Chantal Jean G., Appellant. (And Another Proceeding.)
    Submitted September 26, 2011;
    decided November 22, 2011
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as granted the renewed motion of assigned counsel to be relieved, dismissed upon the ground that such portion of the order does not finally determine the proceedings within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Clinton County et al., Petitioners, and Town of Broadalbin et al., Appellants, v Adirondack Park Agency et al., Respondents. (And Another Action/ Proceeding.)
    Decided November 22, 2011
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Mykelti Cunningham, an Infant, by His Guardian, Utopia R. Rogers, Appellant, v John K. Anderson, Respondent.
    Submitted September 19, 2011;
    decided November 22, 2011
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order which affirmed Supreme Court’s denial of plaintiffs postjudgment motion, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Sinclair Haberman et al., Respondents, v Zoning Board of Appeals of City of Long Beach et al., Appellants, et al., Defendant.
    Submitted October 11, 2011;
    decided November 22, 2011
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action/proceeding within the meaning of the Constitution.


text:
    Tina M. Holstein, Respondent, v Community General Hospital of Greater Syracuse, Appellant.
    Submitted August 29, 2011;
    decided November 22, 2011
   Motion to dismiss appeal denied.


text:
    Maryann Imperato et al., Respondents, v Mount Sinai Medical Center et al., Appellants.
    Submitted October 17, 2011;
    decided November 22, 2011
   Motion to vacate this Court’s September 26, 2011 preclusion order granted.


text:
    Marshall Investments Corporation et al., Appellants, v Harrah’s Operating Company, Inc., as Successor to Caesar’s Entertainment Inc., Formerly Known as Park Place Entertainment Corporation, et al., Respondents.
    Submitted September 12, 2011;
    decided November 22, 2011
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v Anthony Attea, Appellant.
    Submitted October 3, 2011;
    decided November 22, 2011
   Motion to vacate this Court’s September 12, 2011 preclusion order granted.


text:
    Elena Strujan, Appellant, v Teperman & Teperman et al., Respondents.
    Submitted September 26, 2011;
    decided November 22, 2011
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain it (see NY Const, art VI, § 3; CPLR 5602). Motion for poor person relief dismissed as academic. Cross motion to strike pages 8-10 in exhibit 10 of plaintiffs motion papers granted and this material is deemed stricken.


text:
    In the Matter of Injah Tafari, Appellant, v David A. Rock, as Superintendent of Upstate Correctional Facility, Respondent.
    Submitted October 3, 2011;
    decided November 22, 2011
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    In the Matter of Injah Tafari, Appellant, v David A. Rock, as Superintendent of Upstate Correctional Facility, Respondent.
    Submitted October 3, 2011;
    decided November 22, 2011
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    22 CPS Owner LLC, Respondent, v Jason D. Carter, Formerly Known as J. Douglas Cohen, et al., Appellants, et al., Defendants.
    Submitted August 22, 2011;
    decided November 22, 2011
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (see Burke v Crosson, 85 NY2d 10, 18 n 5 [1995]).


text:
    Ying Jing Yan, Respondent, v Ke-en Wang, Appellant.
    Decided November 22, 2011
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


author: ClPARICK, J. Pigott, J. (dissenting in part).

text:
    [959 NE2d 488, 935 NYS2d 551]
    Antoni Wilinski et al., Respondents-Appellants, v 334 East 92nd Housing Development Fund Corp. et al., Appellants-Respondents.
    Argued September 14, 2011;
    decided October 25, 2011

      POINTS OF COUNSEL

      Gallo Vitucci & Klar, New York City (Yolanda L. Ayala of counsel), for appellants-respondents.
    I. Defendants were entitled to summary judgment on the plaintiff’s Labor Law § 241 (6) claim because Industrial Code regulation 12 NYCRR 23-3.3 (b) (3), relied upon by the plaintiff, is inapplicable to the facts of this matter. (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Mugavero v Windows by Hart, Inc., 69 AD3d 694; Forschner v Jucca Co., 63 AD3d 996; Messina v City of New York, 300 AD2d 121; Perillo v Lehigh Constr. Group, Inc., 17 AD3d 1136; German v City of New York, 14 Misc 3d 1204[A], 2006 NY Slip Op 52406[U]; Maternik v Edgemere By-The-Sea Corp., 19 Misc 3d 1118[A], 2008 NY Slip Op 50763[U]; Gonzalez v Fort-way LLC, 22 Misc 3d 1115[A], 2009 NY Slip Op 50132[U].) II. Defendants were entitled to summary judgment on the plaintiffs Labor Law § 241 (6) claim because Industrial Code regulation 12 NYCRR 23-3.3 (c), relied upon by the plaintiff, is inapplicable to the facts of this matter. (Cardenas v One State St., LLC, 68 AD3d 436; Smith v New York City Hous. Auth., 71 AD3d 985;
      Campoverde v Bruckner Plaza Assoc., L.P, 50 AD3d 836; Monroe v City of New York, 67 AD2d 89; Keane v Chelsea Piers, L.P, 16 Misc 3d 1116[A], 2007 NY Slip Op 51443[U]; Ofri v Waldbaum, Inc., 285 AD2d 536; Badzmierowski v PBAK, LLC, 5 Misc 3d 1005[A], 2004 NY Slip Op 51207[U].)

      Law Office of Souren A. Israelyan, New York City (Souren A. Israelyan of counsel), and Slawek W. Platta, PLLC, for respondents-appellants.
    I. The physically significant elevation differential between the worker and the higher level of the plumbing pipes that fell on him and the lack of any safety devices to secure the pipes from falling on laborers working in the area, brings this accident within the purview of Labor Law § 240 (1). (Rocovich v Consolidated Edison Co., 78 NY2d 509; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Runner v New York Stock Exch., Inc., 13 NY3d 599; Misseritti v Mark IV Constr. Co., 86 NY2d 487; Portillo v Roby Anne Dev., LLC, 32 AD3d 421; Tylutki v Tishman Tech., 7 AD3d 696, 3 NY3d 702; Brown v VJB Constr. Corp., 50 AD3d 373; Sharp v Scandic Wall Ltd. Partnership, 306 AD2d 39; Gordon v Eastern Ry. Supply, 82 NY2d 555; Zimmer v Chemung County Performing Arts, 65 NY2d 513.) II. The courts below correctly construed 12 NYCRR 23-3.3 (b) (3) according to its plain meaning and purpose. (Perillo v Lehigh Constr. Group, Inc., 17 AD3d 1136; Sierzputowski v City of New York, 14 AD3d 606; German v City of New York, 14 Misc 3d 1204[A], 2006 NY Slip Op 52406[U]; Maternik v Edgemere By-The-Sea Corp., 19 Misc 3d 1118[A], 2008 NY Slip Op 50763[U]; Gonzalez v Fortway LLC, 22 Misc 3d 1115[A], 2009 NY Slip Op 50132[U]; Docteur v Belleville-Henderson Cent. School Dist., 307 AD2d 751.) III. Defendants failed to meet their burden as summary judgment movants to establish as a matter of law that they have complied with the standard of care under 12 NYCRR 23-3.3 (c). (Salinas v Barney Skanska Constr. Co., 2 AD3d 619; Monroe v City of New York, 67 AD2d 89; Bailadores v Southgate Owners Corp., 40 AD3d 667; Cardenas v One State St., LLC, 68 AD3d 436; Perillo v Lehigh Constr. Group, Inc., 17 AD3d 1136; Sierzputowski v City of New York, 14 AD3d 606; Gawel v Consolidated Edison Co. of N.Y., 237 AD2d 138; Smith v New York City Hous. Auth., 71 AD3d 985; Campoverde v Bruckner Plaza Assoc., L.P., 50 AD3d 836.)
   OPINION OF THE COURT

ClPARICK, J.

Some New York courts have interpreted our decision in Misseritti v Mark IV Constr. Co. (86 NY2d 487 [1995]) to preclude recovery under Labor Law § 240 (1) where a worker sustains an injury caused by a falling object whose base stands at the same level as the worker. We reject that interpretation and hold that such a circumstance does not categorically bar the worker from recovery under section 240 (1). However, in this case, an issue of fact exists as to whether the worker’s injury resulted from the lack of a statutorily prescribed protective device.

I

On September 28, 2005, at approximately 8:30 a.m., plaintiff Antoni Wilinski and other workers were demolishing brick walls at a vacant warehouse located on premises owned by defendant 334 East 92nd Housing Development Fund Corp. Previous demolition of the ceiling and floor above had left two metal, vertical plumbing pipes unsecured. The pipes were each four inches in diameter and rose out of the floor on which plaintiff was working to a height of approximately 10 feet. The pipes were to be left standing until their eventual removal. Earlier that morning, plaintiff voiced concerns to his supervisor that leaving the pipes standing during demolition of the surrounding walls could be dangerous. Nevertheless, no safety measures were taken to secure the pipes. Shortly thereafter, debris from a nearby wall that was being demolished hit the pipes, causing them to topple over. The pipes fell approximately four feet and landed on plaintiff, who is five feet, eight inches tall. The first pipe knocked plaintiffs hard hat off from his head, then struck his right shoulder and arm, cutting his elbow. The second pipe struck plaintiff’s uncovered head, cutting it and causing a concussion. Plaintiff suffered serious and lasting injuries to his shoulder, arm and spine, as well as neuropsychological injuries.

Plaintiff commenced suit alleging violations of Labor Law § 240 (1) and Labor Law § 241 (6), the latter pursuant to 12 NYCRR 23-3.3 (b) (3) and (c). Plaintiff moved for summary judgment on his section 240 (1) claim and defendants cross-moved for summary judgment seeking dismissal of plaintiffs claims. Supreme Court granted plaintiffs motion for summary judgment and denied defendants’ motion in its entirety (2009 NY Slip Op 30605[U] [2009]). The court held that plaintiff suffered a gravity-related injury and had established entitlement to judgment as a matter of law by demonstrating that the absence of a statutorily enumerated safety device proximately caused his injury. The court also held that defendants were subject to duties under 12 NYCRR 23-3.3 (b) (3) and (c), which provided a sufficient predicate for liability under Labor Law § 241 (6).

The Appellate Division modified the order of Supreme Court by denying plaintiff’s motion for summary judgment and by partially granting defendants’ summary judgment motion to the extent of dismissing plaintiff’s section 240 (1) claim (Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 71 AD3d 538, 539 [1st Dept 2010]). Relying on our decision in Misseritti, the court stated that the accident was “not the type of elevation-related accident that [the statute] is intended to guard against . . . Since both the pipes and plaintiff were at the same level at the time of the collapse the incident was not sufficiently attributable to elevation differentials to warrant imposition of liability” (id. [internal quotation marks omitted]). The court otherwise affirmed Supreme Court’s denial of defendants’ motion to dismiss plaintiff’s section 241 (6) claims (see id.).

The parties each moved at the Appellate Division for leave to appeal to this Court. In separate orders granting those motions, the Appellate Division certified the following question: “Was the order of this Court, which modified the order of the Supreme Court, properly made?” For the reasons that follow, we modify the court’s order and answer in the negative.

II

Plaintiffs Labor Law § 240 (1) Claim Labor Law § 240 (1) mandates that building owners and contractors

“in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.”

The statute imposes absolute liability on building owners and contractors whose failure to “provide proper protection to workers employed on a construction site” proximately causes injury to a worker (see Misseritti, 86 NY2d at 490). Whether a plaintiff is entitled to recovery under Labor Law § 240 (1) requires a determination of whether the injury sustained is the type of elevation-related hazard to which the statute applies (see Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 [1991] [“violation of the statute cannot establish liability if the statute is intended to protect against a particular hazard, and a hazard of a different kind is the occasion of the injury” (internal quotation marks omitted)]).

Our jurisprudence defining the category of injuries that warrant the special protection of Labor Law § 240 (1) has evolved over the last two decades, centering around a core premise: that a defendant’s failure to provide workers with adequate protection from reasonably preventable, gravity-related accidents will result in liability. Beginning in Rocovich, we stated that section 240 (l)’s contemplated hazards are

“those related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured” (78 NY2d at 514).

In Rocovich, the plaintiff was injured at his work site when his right ankle and foot accidentally became immersed in hot oil in a 12-inch-deep trough (see id. at 511). We denied recovery, finding it “difficult to imagine how plaintiffs proximity to the 12-inch trough could have entailed an elevation-related risk which called for any of the protective devices of the types listed in section 240 (1)” (id. at 514-515). Subsequently, in Ross v Curtis-Palmer Hydro-Elec. Co. (81 NY2d 494 [1993]), we refined Rocovich, stating that the reach of Labor Law § 240 (1) is “limited to such specific gravity-related accidents as [a worker] falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured” (id. at 501).

In Narducci v Manhasset Bay Assoc. (96 NY2d 259 [2001]), though we noted that section 240 (1) applies to both “falling worker” and “falling object” cases, we declined to impose liability where a plaintiff was cut by a piece of glass that fell from a nearby window pane (id. at 266). We concluded that “[t]his was not a situation where a hoisting or securing device of the kind enumerated in the statute would have been necessary or even expected” and that the absence of such a device “did not cause the falling glass here” (id. at 268-269). Therefore, the accident was outside the scope of section 240 (1) (see id.).

In Misseritti, we applied a similar rationale. The plaintiffs decedent in that case sustained severe injuries, leading to his eventual death, when a completed, concrete firewall collapsed on top of him (see 86 NY2d at 489). Before the wall collapsed, “decedent and his co-worker had just dismantled the scaffolding used to erect the completed fire wall and . . . [m]asons had not yet vertically braced the wall with the . . . planks it had on the work site” (id. at 491). We held that section 240 (1) did not apply to those facts, as the firewall did not collapse due to a failure to provide a protective device contemplated by the statute (see id.). We determined that, in fact, the kind of braces referred to in section 240 (1) are “those used to support elevated work sites not braces designed to shore up or lend support to a completed structure” (id.). Thus the firewall’s collapse, though tragic in its consequences, was simply “the type of peril a construction worker usually encounters on the job site” (id.).

Intermediate appellate courts have cited Misseritti as support for the proposition that a plaintiff injured by a falling object has no claim under section 240 (1) where the plaintiff and the base of the object stood on the same level (see e.g. Brink v Yeshiva Univ., 259 AD2d 265 [1st Dept 1999] [citing Misseritti and holding that the collapse of an interior chimney at the same floor level as plaintiff was not attributable to elevation differentials to warrant the imposition of liability]; Matter of Sabovic v State of New York, 229 AD2d 586, 587 [2d Dept 1996] [“the wall which collapsed was at the same level as the work site and is not considered a falling object for purposes of Labor Law § 240 (1)”]; Corsaro v Mt. Calvary Cemetery, 214 AD2d 950, 950 [4th Dept 1995] [holding that a concrete form standing at ground level and estimated between 12 and 20 feet high was not a falling object because it was at the same level as the work site and not an elevation-related risk]). Here, the Appellate Division also relied on Misseritti in holding that the collapse of the pipes, like the collapse of a wall, was not an elevation-related accident and stated that “[s]ince both the pipes and plaintiff were at the same level at the time of the collapse the incident was not sufficiently attributable to elevation differentials to warrant imposition of liability” under section 240 (1) (Wilinski, 71 AD3d at 539 [internal quotation marks omitted]). Defendants urge the Court to endorse the “same level” rule now by affirming the lower court’s dismissal of plaintiffs section 240 (1) claim.

We do not agree that Misseritti calls for the categorical exclusion of injuries caused by falling objects that, at the time of the accident, were on the same level as the plaintiff. Misseritti did not turn on the fact that plaintiff and the base of the wall that collapsed on him were at the same level. Rather, just as in Narducci, the absence of a causal nexus between the worker’s injury and a lack or failure of a device prescribed by section 240 (1) mandated a finding against liability (see Misseritti, 86 NY2d at 490-491; Narducci, 96 NY2d at 268-269). Thus, we decline to adopt the “same level” rule, which ignores the nuances of an appropriate section 240 (1) analysis.

Moreover, the so-called “same level” rule is inconsistent with this Court’s more recent decisions, namely Quattrocchi v F.J. Sciame Constr. Corp. (11 NY3d 757 [2008]) and Runner v New York Stock Exch., Inc. (13 NY3d 599 [2009]), neither of which are cited by the dissent. In Quattrocchi, we articulated for the first time that liability is not limited to cases in which the falling object was in the process of being hoisted or secured (see 11 NY3d at 759). Next, in Runner, the Court had occasion to apply section 240 (1) to novel factual circumstances that did not involve a falling worker or falling object (see 13 NY3d at 605). In Runner, the plaintiff was injured while he and coworkers moved an 800 pound reel of wire down a flight of four stairs (see id. at 602). The workers were instructed to tie one end of a 10-foot length of rope to the reel and then to wrap the rope around a metal bar placed horizontally across a door jamb on the same level as the reel (see id.). The plaintiff, acting as a counterweight, held the loose end as other workers pushed the reel down stairs (see id.). As the reel descended, the plaintiff was pulled horizontally into the bar, injuring his hands as they jammed against it (see id.). After a review of our precedents, we concluded that

“the dispositive inquiry framed by our cases does not depend upon the precise characterization of the device employed or upon whether the injury resulted from a fall, either of the worker or of an object upon the worker. Rather, the single decisive question is whether plaintiffs injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential” (id. at 603 [emphasis added]).

As the “elevation differential . . . [could not] be viewed as de minimis, particularly given the weight of the object and the amount of force it was capable of generating, even over the course of a relatively short descent” (id. at 605), we held the defendants liable under Labor Law § 240 (1) for using a “jerryrigged device” rather than hoists or pulleys as provided under the statute (see id. at 602, 605).

Applying Runner to the instant case, we hold that plaintiff is not precluded from recovery under section 240 (1) simply because he and the pipes that struck him were on the same level. The pipes, which were metal and four inches in diameter, stood at approximately 10 feet and toppled over to fall at least four feet before striking plaintiff, who is five feet, eight inches tall. That height differential cannot be described as de minimis given the “amount of force [the pipes] w[ere] [ ]able [to] generate]” (id. at 605) over their descent. Thus, plaintiff suffered harm that “flowfed] directly from the application of the force of gravity to the [pipes]” (id. at 604; see also Rocovich, 78 NY2d at 514). However, though the risk here “ar[ose] from a physically significant elevation differential” (Runner, 13 NY3d at 603), it remains to be seen whether plaintiffs injury was “the direct consequence of [defendants’] failure to provide adequate protection against [that] risk” (id.).

In this regard, this case is distinguishable from Misseritti in a significant way: while, in Misseritti, the kinds of protective devices section 240 (1) prescribes were shown to be inapplicable to the circumstances of the decedent’s injury, here, neither party has met its burden with respect to that issue. Plaintiff asserts, but does not demonstrate, that protective devices such as blocks or ropes could have been used to secure the pipes and prevent the accident. Defendants assert, but fail to demonstrate, that no protective devices were called for.

Moreover, there is an important distinction between the facts of this case and other cases where summary judgment has been granted in defendants’ favor. Here, the pipes that caused plaintiffs injuries were not slated for demolition at the time of the accident. This stands in contrast to cases where the objects that injured the plaintiffs were themselves the target of demolition when they fell (see e.g. Brink, 259 AD2d at 265). In those instances, imposing liability for failure to provide protective devices to prevent the walls or objects from falling, when their fall was the goal of the work, would be illogical. Here, however, securing the pipes in place as workers demolished nearby walls would not have been contrary to the objectives of the work plan.

We conclude, therefore, that while there is a potential “causal connection between the object[s’] inadequately regulated descent and plaintiffs injury” (Runner, 13 NY3d at 605), neither party is entitled to summary judgment on plaintiffs Labor Law § 240 (1) claim. Whether plaintiffs injuries were proximately caused by the lack of a safety device of the kind required by the statute is an issue for a trier of fact to determine.

III.

Plaintiffs Claims Under Labor Law § 241 (6)

Plaintiffs remaining claims arise under Labor Law § 241 (6), which provides:

“All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places.”

As the statute is not self-executing, a plaintiff must set forth a violation of a specific rule or regulation promulgated pursuant to it (see Ross, 81 NY2d at 503). In this case, plaintiff invokes 12 NYCRR 23-3.3 (b) (3), which provides: “Walls, chimneys and other parts of any building or other structure shall not be left unguarded in such condition that such parts may fall, collapse or be weakened by wind pressure or vibration.”

Defendants contend that this regulation is inapplicable to the instant matter because neither wind pressure nor vibration caused the pipes to fall, collapse or become weakened. Defendants argue that the Appellate Division’s interpretation of the regulation—specifically, that “[a] fair reading of the section . . . leads to the conclusion that the phrase ‘by wind pressure or vibration,’ does not attach to the words ‘fall’ or ‘collapse,’ but only to the immediately preceding words, ‘be weakened’ ” (Wilinski, 71 AD3d at 539)—is incorrect and contradicts the purpose of the regulation.

While lower courts ruling on this issue have largely adopted defendants’ proposed reading of the regulation (see German v City of New York, 14 Misc 3d 1204[A], 2006 NY Slip Op 52406[U], *5 [Sup Ct, NY County 2006]; Maternik v Edgemere By-The-Sea Corp., 19 Misc 3d 1118[A], 2008 NY Slip Op 50763[U], *7 n 11 [Sup Ct, Kings County 2008]; Gonzalez v Fortway LLC, 22 Misc 3d 1115[A], 2009 NY Slip Op 50132[U], *7 [Sup Ct, Kings County 2009]), we believe that the Appellate Division’s interpretation is the better one. Thus, we affirm the court’s finding that plaintiff is not required to show that the pipes fell or collapsed due to wind pressure or vibration to state a claim under 12 NYCRR 23-3.3 (b) (3).

Plaintiffs second section 241 (6) claim arises under 12 NYCRR 23-3.3 (c), which provides:

“During hand demolition operations, continuing inspections shall be made by designated persons as the work progresses to detect any hazards to any person resulting from weakened or deteriorated floors or walls or from loosened material. Persons shall not be suffered or permitted to work where such hazards exist until protection has been provided by shoring, bracing or other effective means.”

“The thrust of this subdivision is to fashion a safeguard, in the form of ‘continuing inspections,’ against hazards which are created by the progress of the demolition work” (Monroe v City of New York, 67 AD2d 89, 100 [2d Dept 1979]). Here, defendants failed to meet their burden of showing either that they complied with the regulation or that their noncompliance did not cause plaintiffs accident. Thus, we conclude that the courts below properly denied summary judgment to defendants on plaintiff s Labor Law § 241 (6) claims.

Accordingly, the order of the Appellate Division should be modified, without costs, in accordance with this opinion and, as so modified, affirmed, and the certified questions answered in the negative.

Pigott, J. (dissenting in part).

Because the majority runs far afield from this Court’s Labor Law § 240 (1) precedent, I dissent.

To prevail on a motion for summary judgment on the issue of liability under Labor Law § 240, a plaintiff must demonstrate that his or her injuries resulted from “dangerous conditions posed by elevation differentials” at a work site (Misseritti v Mark IV Constr. Co., 86 NY2d 487, 491 [1995]), and that the elevation-related risk occurred “because of the absence or inadequacy of a safety device of the kind enumerated in the statute” (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 268 [2001]).

At the time of the accident, plaintiff was demolishing the walls of a warehouse building. In front of the brick wall that plaintiff was demolishing were two metal plumbing pipes, approximately 8 to 10 feet in height stretching vertically from the floor on which plaintiff was standing. Two workers, using hammers and crowbars, demolished an adjacent wall about four feet away from plaintiff, causing that wall to collapse into the pipes. The pipes toppled onto plaintiff causing injury.

On this record, plaintiff has not demonstrated his entitlement to summary judgment because he failed to articulate either an elevation-related risk or an enumerated safety device that would have prevented his injuries. To the contrary, in my view, defendants are entitled to summary judgment since the uncontested facts establish that plaintiffs injuries were not the result of a hazard contemplated by section 240 (1).

In Misseritti, we ruled that the injuries sustained, caused by the collapse of a completed fire wall, were not the result of an elevation-related accident subject to the protections of section 240 (1), because the plaintiff failed to demonstrate that “the decedent was working at an elevated level at the time of his tragic accident” and it could not “be said that the collapse of a completed fire wall is the type of elevation-related accident that section 240 (1) is intended to guard against” (86 NY2d at 491). Likewise, in Melo v Consolidated Edison Co. of N.Y. (92 NY2d 909 [1998]), the plaintiff and a coworker were attempting to cover a trench with a heavy steel plate, which was attached, by a chain with a hook, to the shovel of a backhoe. As the plate was being moved to the trench, its edge was resting on the ground or slightly above it. When the hook unfastened and the plate fell over, the plaintiff sustained injuries. We upheld the dismissal of the plaintiffs section 240 (1) claim, explaining that the statute was not implicated because “[t]he steel plate was not elevated above the work site” (id. at 911).

These principles were reinforced in Capparelli v Zausmer Frisch Assoc., Inc., decided at the same time as Narducci, wherein the plaintiff cut his right hand and wrist when he attempted to stop a falling light fixture from hitting him while stationed halfway up a ladder. There, we concluded that the plaintiff s claim did not fall within the ambit of section 240 (1), stating that the statute does not apply when “there [is] no height differential between [the] plaintiff and the falling object” (96 NY2d at 269).

The vertical plumbing pipes in this case are akin to the completed fire wall in Misseritti and the steel plate in Melo. It is of no moment that the pipes rose at least four feet above the plaintiffs height, since it is undisputed that the base of the pipes were at the same level as plaintiff and his work site.

Nor did plaintiff demonstrate that an enumerated safety device would have prevented the accident from occurring. In his motion for summary judgment, plaintiff merely claimed that defendants failed to provide him with an enumerated safety device to adequately secure the pipes. But that’s not enough. To merit summary judgment on the issue of liability under section 240 (1) plaintiffs must show that there was a specific, enumerated safety device that would have prevented the accident. Here, plaintiff offered only conclusory statements, thereby failing to demonstrate an issue of fact warranting trial.

In denying defendants’ motion for summary judgment, the majority adds confusion and uncertainty to our decisions in Misseritti, Narducci, and Melo and to the reasonable interpretation given them by the Appellate Divisions (see e.g. Brink v Yeshiva Univ., 259 AD2d 265 [1st Dept 1999]; Matter of Sabovic v State of New York, 229 AD2d 586, 587 [2d Dept 1996]; Corsaro v Mt. Calvary Cemetery, 214 AD2d 950, 950-951 [4th Dept 1995]). I see no reason to stray from the overwhelming and settled body of case law that establishes that section 240 (1) does not apply when the base of the falling object is at the same level as the worker and the work being performed. Therefore, I would affirm the Appellate Division order.

Chief Judge Lippman and Judges Smith and Jones concur with Judge Ciparick; Judge Pigott dissents and votes to affirm in a separate opinion in which Judges Graffeo and Read concur.

Order modified, etc.

      . Halina Wilinski is also a plaintiff, having sued derivatively. We will refer only to the injured worker as plaintiff.

      . Defendant 334 East 92nd Housing Development Fund Corp., (the HDFC) owned the premises located at 334 East 92nd Street in Manhattan. The HDFC executed a nominee agreement in favor of defendant East 92nd Street Senior Housing Limited Partnership, which, in turn, retained defendant Empire Developers Corp. (Empire) as general contractor. Empire hired Gramercy Group, Inc. (Gramercy) as subcontractor to demolish a vacant warehouse on the property. Gramercy employed plaintiff as a demolition worker.

      . In his deposition testimony, plaintiff stated that the pipes were two different heights, the shorter ranging from 8 to 10 feet and the taller ranging from 10 to 12 feet. Plaintiffs coworker testified that he did not want to estimate the height of the pipes but stated that “they went up a good way.”

      . Some lower courts have already reached this conclusion. For example, in Brown v VJB Constr. Corp. (50 AD3d 373 [1st Dept 2008]), the plaintiff was injured when a 1,000 pound slab that fell from a defective clamp as it was being hoisted by a forklift landed at ground level and then tipped over, pinning the plaintiffs wrist between the slab and a wall (see id. at 374). Defendants had argued, based on Misseritti, that because the “[plaintiff] admitted] that at the time of the accident, he worked at the same level as the stone panel being installed” the court should affirm the dismissal of plaintiffs section 240 (1) claim (see brief for defendant-respondent and second third-party defendant-respondent in Brown v VJB Constr. Corp, 50 AD3d 373 [2008], available at 2007 WL 5830407, *14-18). The Appellate Division aptly rejected that argument, finding it “of no consequence that the ultimate destination of the slab was the same level where the forklift was positioned, or where [the] plaintiff was standing” (Brown, 50 AD3d at 377). Had the court accepted the defendants’ same level defense, mere circumstance would have arbitrarily precluded what we agree was clearly a viable claim under section 240 (1).

       The majority cites Brown v VJB Constr. Corp. (50 AD3d 373 [1st Dept 2008]) as evidence that the Appellate Division has begun to reject the “same level” rule. That is not the case. The concrete slab in Brown fell from a height of three feet (id. at 376), and therefore that case does not involve a situation were the base of the object is at the same elevation as plaintiff.


author: Graffeo, J.

text:
    [959 NE2d 504, 935 NYS2d 567]
    The People of the State of New York, Respondent, v Dean A. Guay, Appellant.
    Argued October 12, 2011;
    decided November 15, 2011

      POINTS OF COUNSEL

      Kindlon Shanks and Associates, Albany (Terence L. Kindlon and Kathy Manley of counsel), for appellant.
    I. The convictions should be reversed based on ineffective assistance of counsel. (People v Baker, 14 NY3d 266; People v Benevento, 91 NY2d 708; People v Baldi, 54 NY2d 137; People v Caban, 5 NY3d 143; People v Dean, 50 AD3d 1052; People v Green, 37 AD3d 615; People v Fogle, 10 AD3d 618; People v Laraby, 305 AD2d 1121; People v Fleegle, 295 AD2d 760; People v Miller, 11 AD3d 729.) II. The convictions should be reversed because the trial court removed a possibly hearing impaired prospective juror for cause without conducting the necessary inquiry. (People v Guzman, 76 NY2d 1; People v Cruz, 46 AD3d 313; People v Busreth, 35 AD3d 965; People v Santiago, 277 AD2d 258; People v Caldwell, 159 Misc 2d 190; Tennessee v Lane, 541 US 509; People v Cahill, 2 NY3d 14.) III. The convictions should be reversed because two nonexpert witnesses were allowed to testify as to their expert opinion of the complainant’s credibility. (People v Crowell, 278 AD2d 832; People v White, 184 AD2d 798; People v Smith, 127 AD2d 864; People v Bennett, 79 NY2d 464; People v Ciaccio, 47 NY2d 431; People v Kozlowski, 11 NY3d 223; People v Ballerstein, 52 AD3d 1192; People v Eherle, 265 AD2d 881; People v Graham, 251 AD2d 426; People v Seaman, 239 AD2d 681.) IV The convictions should be reversed because of pervasive prosecutorial misconduct. (People v Riback, 13 NY3d 416; People v Ballerstein, 52 AD3d 1192; People v Gordon, 50 AD3d 821; People v Gorghan, 13 AD3d 908; People v Wlasiuk, 32 AD3d 674; People v Harte, 29 AD3d 475; People v Brown, 26 AD3d 392; People v Liverpool, 35 AD3d 506; People v Anderson, 35 AD3d 871; People v De Vito, 21 AD3d 696.)

      Andrew Wylie, District Attorney, Plattsburgh (Nicholas J. Evanovich and Miriam C. Healy of counsel), for respondent.
    I. Defendant’s complaints regarding the trial court’s disposition of the People’s for cause challenge to the prospective juror who is hard of hearing are not reviewable by the court. (People v Guzman, 76 NY2d 1; People v Harrison, 57 NY2d 470; People v Gonzalez, 55 NY2d 720; People v Waters, 90 NY2d 826; People v Santos, 86 NY2d 869; People v Burke, 72 NY2d 833; People v Everson, 100 NY2d 609.) II. Defense counsel opened the door to the otherwise impermissible opinion testimony. (People v Lamphier, 302 AD2d 864; People v Conway, 297 AD2d 398; People v Melendez, 55 NY2d 445; People v Regina, 19 NY2d 65; People v Gonzalez, 55 NY2d 720; People v Waters, 90 NY2d 826; People v Santos, 86 NY2d 869; People v Burke, 72 NY2d 833; People v Everson, 100 NY2d 609; People v Baker, 14 NY3d 266.) III. The prosecutor did not engage in misconduct; as such defendant was not denied his right to a fair trial. (People v Hurley, 75 NY2d 887; People v Gill, 54 AD3d 965; People v Calabria, 94 NY2d 519; People v McCombs, 18 AD3d 888; People v Roberts, 12 AD3d 835; People v Russell, 307 AD2d 385; People v Layton, 16 AD3d 978; People v Tarantola, 178 AD2d 768; People v Colas, 206 AD2d 183; People v Halm, 81 NY2d 819.) IV Defendant was afforded meaningful representation by trial counsel. (People v Benevento, 91 NY2d 708; People v Baker, 14 NY3d 266; People v Ellis, 81 NY2d 854; People v Rivera, 71 NY2d 705; People v Satterfield, 66 NY2d 796; People v Baldi, 54 NY2d 137.)
   OPINION OF THE COURT

Graffeo, J.

The primary issue in this appeal is whether Supreme Court abused its discretion when it dismissed a hearing-impaired prospective juror for cause. We hold that it did not based on the particular facts of this case.

I

Defendant Dean Guay discovered that he was the father of a child (whom we refer to as Jane) when the girl was four years old. He subsequently visited his daughter on alternate weekends and spent time with her in the summers. Defendant also vacationed with Jane and other members of his family at a summer camp in Clinton County.

At some point in August 2005, when Jane was seven years old, defendant picked her up from her mother’s house for a scheduled week-long trip to the camp. While there, Jane woke up one night to find defendant crawling into the bed that she was occupying with other children. She went back to sleep but was awoken again when defendant removed her pants. He pulled Jane toward him, touched her chest and genital area, and then inserted his finger and penis into her vagina. Defendant stopped when his one-year-old son, who was also in the bed, woke up.

The next morning, defendant brought Jane and the other children to his mother’s house for breakfast and afterwards defendant drove her home. During the trip, defendant did not speak to Jane but, upon arrival, defendant announced that he was not going to see her anymore. Defendant then terminated his relationship with his daughter. Jane told her mother that defendant did not want to visit with her but did not disclose her father’s sexual misconduct at that time because she did not comprehend that defendant’s actions were wrong.

In May 2007, after attending an educational program at her school relating to sex-related issues, Jane realized that her father had engaged in inappropriate sexual contact with her. She then told a school counselor what had happened to her. The police were notified and Jane was interviewed by State Police Investigator Karen DuFour and Child Protective Services Caseworker Thom Schultz.

Defendant was incarcerated when the authorities learned of Jane’s accusations. On the day he was released from jail, Investigator DuFour met with him. After Miranda warnings were issued to defendant, Schultz engaged defendant in a discussion about his daughter’s disclosures. Although defendant initially denied having any improper physical contact with his daughter, he eventually confessed that he crawled into the bed and sexually assaulted Jane, but he did not admit to penetrating her with his penis. Defendant also revealed that he terminated his relationship with Jane after the incident because he was “too embarrassed” or “too ashamed” of what he had done, so “it was easier just not to see her.”

Defendant was indicted for first-degree rape, first-degree sexual abuse and endangering the welfare of a child. During jury selection, after groups of venire members were placed in the jury box for individual questioning, the trial court read introductory instructions to these prospective jurors and inquired if anyone had difficulty hearing. When venire member 1405 responded affirmatively, the court repeated the information. The prosecutor later asked whether any of the prospective jurors knew a person who had confessed to a crime that he or she did not commit. Venire member 1405 answered that he did and went on to explain that his son was incarcerated for drug possession. The prosecutor asked, “[d]id he admit to possessing the drugs? Did he make a confession?” Venire member 1405 replied “I don’t know, I didn’t go to any of the trial. I stayed away.” The prosecutor responded, did “[y]ou feel that he was innocent?” and the prospective juror said “No.”

Defense counsel apparently realized that venire member 1405 was having trouble comprehending the questions and asked him if he had “any problems hearing as long as we speak up?” He replied “[o]nce in a while you talk awfully low.” Defense counsel remarked, “I have to be reminded to speak up. But you could sit on a jury throughout the course of the week? You don’t think you would have any hearing problems as long as I speak up?” The prospective juror responded “I’m pretty good right here in the front” row of the jury box.

At the conclusion of this round of voir dire, the People moved to dismiss venire member 1405 for cause. The prosecutor noted that the panelist “had trouble hearing the [c]ourt” and that child victims frequently “have trouble speaking up” when they testify, which raised a concern that venire member 1405 could “miss critical parts of [Jane’s] testimony.” Defense counsel opposed the request, arguing that the prospective juror had indicated that he would not have a problem hearing during the trial. Although Supreme Court agreed with defense counsel’s characterization of venire member 1405’s statements, the judge further explained

“I think he’s inaccurate in his answer because he indicated he had difficulty hearing certain things and by his nonverbal reactions to various questions you could tell that he was having difficulty hearing the three of us. I do think that and I think that the People make a valid point that children tend to be more soft spoken witnesses, and adults, all things considered, I think his hearing is a big enough problem [ ]here that it does disqualify him from serving as a juror.”

The court therefore granted the People’s challenge for cause.

At trial, the People’s witnesses included a nurse practitioner who provided medical testimony regarding Jane’s gynecological examination. She established that Jane’s hymenal ring evidenced a disruption and scar tissue, that it was “not very probable” that the injury occurred naturally and that such a condition was consistent with “some blunt force of penetration” caused by a finger or a penis. Caseworker Schultz testified about defendant’s confession. Defendant later claimed that he had lied to Schultz when he acknowledged sexually abusing Jane.

The jury convicted defendant on all counts. He was sentenced to an aggregate prison term of 20 years and 10 years of post-release supervision. The Appellate Division modified by remitting for imposition of new periods of postrelease supervision but otherwise affirmed (72 AD3d 1201 [3d Dept 2010]). A Judge of this Court granted defendant leave to appeal (15 NY3d 750 [2010]) and we now affirm.

II

Defendant contends that the trial court erred because it allegedly failed to engage in an adequate inquiry regarding venire member 1405’s ability to serve on the jury and, rather than dismissing him for cause, the court should have accommodated his hearing impairment. According to defendant, the trial court’s action violated the Judiciary Law and People v Guzman (76 NY2d 1 [1990]). The People submit that the trial court properly questioned the prospective juror and that his dismissal was not an abuse of discretion.

New York has long considered jury service to be a civil right that is a privilege and duty of citizenship protected by the State Constitution (see e.g. People v Hecker, 15 NY3d 625, 649 [2010], cert denied 563 US —, 131 S Ct 2117 [2011]; People v Kern, 75 NY2d 638, 651 [1990], cert denied 498 US 824 [1990]). A person’s ability to serve as a juror, however, must be balanced against the accused’s fundamental constitutional rights and the State’s obligation to provide a fair trial. Among other requirements specified in Judiciary Law § 510, “[i]n order to qualify as a juror a person must . . . [b]e able to understand and communicate in the English language” (Judiciary Law § 510 [4]).

When confronted with such a situation involving a prospective juror’s hearing impairment, a court must determine whether the individual has the ability to “understand all of the evidence presented, evaluate that evidence in a rational manner, communicate effectively with the other jurors during deliberations, and comprehend the applicable legal principles, as instructed by the court” (People v Guzman, 76 NY2d at 5). If a judge is made aware of a reasonable accommodation that would allow a hearing-impaired prospective juror to fulfill these duties without interfering with the defendant’s trial rights, such measures should be taken (see id.). In furtherance of the need to accommodate such prospective jurors, we recognized in Guzman that a hearing impairment does not per se preclude an individual from serving as a juror (see id.).

Guzman also acknowledged that trial courts have discretion to determine whether an auditory problem will unduly interfere with an individual’s ability to fulfill the important functions that trial jurors perform. This determination, “[a]s with most juror qualification questions,” must “be left largely to the discretion of the trial court, which can question and observe the prospective juror . . . during the voir dire” (id.). Although the Appellate Division possesses the power to exercise its own discretion and substitute its judgment for that of the trial court, this Court lacks that authority. And when the Appellate Division adopts a trial court’s factual findings and the application of those facts to the applicable legal principles, as occurred here, that determination presents a mixed question of law and fact that we cannot overturn unless there is no record support for the trial court’s conclusion.

In this case, we hold that Supreme Court did not abuse its discretion by granting the cause challenge to venire member 1405 because the record supported the determination that his hearing impairment would have unduly interfered with his ability to be a trial juror. It was readily apparent to the court and the parties that this panelist had trouble hearing the precise questions posed. After he asked the court to repeat its preliminary instructions, he incorrectly responded to an inquiry asking whether he knew a person who had falsely confessed to a crime. Despite his remark that he would not have difficulty if he remained in the front of the jury box, Supreme Court observed venire member 1405 during voir dire and apparently noticed that the prospective juror’s body language demonstrated that he was not comprehending everything that was happening. In addition, the court expressed its concern that the hearing impairment was likely to be more problematic in this case because, in its experience, child witnesses tended to be more soft-spoken than adults. Defense counsel did not contest any of these conclusions.

It is also significant that, aside from the panelist’s own suggestion that he remain in the front row, the court was not asked to offer any other reasonable accommodation that may have adequately assuaged the concerns about the prospective juror’s ability to understand the proceedings and fulfill the functions of a trial juror. The record also does not reveal whether any type of audio equipment for the hearing impaired was available in the courthouse or whether venire member 1405 would have been willing to use such a device. Therefore, this case is not akin to Guzman, where the prospective juror confirmed that a sign language interpreter would allow him to follow the proceedings verbatim. In the absence of some suggestion for reasonably addressing the concerns about venire member 1405, we cannot fault the trial court for failing to order an accommodation sua sponte.

We must emphasize, however, that a better course would have been for Supreme Court to take steps on its own accord to inquire about the prospective juror’s auditory limitations and discuss possible accommodation. It is imperative that the privilege and duty of jury service be made available to all eligible individuals—regardless of disability—who are capable of performing this civic function. For this reason, a judge should endeavor to make a reasonable and tactful inquiry of any prospective juror who appears to have a hearing impairment and consider offering to provide an assistive amplification device or some other appropriate accommodation available in our court system.

m

Defendant’s remaining contentions do not require reversal. He argues that he was deprived of a fair trial because Investigator DuFour and Caseworker Schultz opined that the victim was credible. Although this type of testimony was improper (see e.g. People v Kozlowski, 11 NY3d 223, 240 [2008], cert denied 556 US —, 129 S Ct 2775 [2009]; People v Ciaccio, 47 NY2d 431, 439 [1979]), the trial court sustained an objection before DuFour answered, no curative instruction was requested and the court subsequently directed the jury to disregard such impermissible testimony—an instruction that we assume was followed (see People v Baker, 14 NY3d 266, 274 [2010]). As for Schultz, defense counsel opened the door to the prosecutor asking certain questions about the caseworker’s ability to gauge the victim’s veracity, but arguably not so wide as to allow Schultz to state his ultimate conclusion regarding Jane’s credibility. Nevertheless, the error was harmless because there is no significant probability that the jury would have acquitted defendant if Schultz had not provided the opinion testimony (see e.g. People v Diaz, 15 NY3d 40, 49 [2010]; People v Crimmins, 36 NY2d 230, 240-241 [1975]). For this reason, we also reject defendant’s preserved challenges to remarks by the prosecutor that strayed beyond the bounds of permissible rhetoric and advocacy. Finally, on this record, defendant failed to establish that he was denied meaningful representation (see generally People v Hobot, 84 NY2d 1021, 1022 [1995]).

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

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

Order affirmed.

      . Defendant wrote a letter to Jane at some point and attempted to see her on one occasion but Jane’s mother rebuffed his request to visit with the child.

      . In the past, a prospective juror could be dismissed for cause on the basis of “a mental or physical condition, or combination thereof, which causes the person to be incapable of performing in a reasonable manner the duties of a juror” (Judiciary Law § 510 [former (3)]). This provision was repealed in 1995 and replaced with current subdivision (4) (see L 1995, ch 86).

      . We ultimately held in Guzman that it was not an abuse of discretion to allow a hearing-impaired juror to serve with the assistance of an interpreter who communicated using “signed English,” which transmitted the speaker’s words literally without any translation (see 76 NY2d at 7).

      . To the extent defendant claims that the Americans with Disabilities Act (see 42 USC § 12101 et seq.) required the trial court to provide a reasonable accommodation to venire member 1405, that contention is not preserved for review.


author: Smith, J.

text:
    [958 NE2d 894, 934 NYS2d 765]
    CPS Operating Company LLC, Appellant, v Pathmark Stores, Inc., Respondent.
    Argued October 11, 2011;
    decided November 15, 2011

      POINTS OF COUNSEL

      Morrison Cohen LLP, New York City (Z David Scharf, David A. Piedra and Jerome Tarnoff of counsel), for appellant.
    I. Because performance of the assignment contract would violate public policy, the contract is void. (328 Owners Corp. v 330 W. 86 Oaks Corp., 8 NY3d 372; City of Peekskill v Schurr, 14 AD3d 643; Pike Realty Co., LLC v Cardinale, 21 Misc 3d 1139[A], 2008 NY Slip Op 52422[U] NYCTL 1998-1 Trust v Mayfield, 17 Misc 3d 268; Shields v Gross, 58 NY2d 338; Barnes v Oceanus Nav. Corp., Ltd., 21 AD3d 975; City of New York v 17 Vista Assoc., 84 NY2d 299; Szerdahelyi v Harris, 67 NY2d 42; Soto v State Farm Ins. Co., 83 NY2d 718; Kalisch-Jarcho, Inc. v City of New York, 58 NY2d 377.) II. Even if the assignment contract was not void as against public policy, the assignment contract nevertheless required Pathmark Stores, Inc. to obtain New York City Department of Housing Preservation and Development consent. (Matter of Progressive Northeastern Ins. Co. [Heath], 41 AD3d 1321; Santamaria v 1125 Park Ave. Corp., 238 AD2d 259; Matter of New York City Asbestos Litig., 41 AD3d 299; Matter of Lipper Holdings v Trident Holdings, 1 AD3d 170; 328 Owners Corp. v 330 W. 86 Oaks Corp., 8 NY3d 372; DiPietro v County of Westchester, 237 AD2d 325; City of Peekskill v Schurr, 14 AD3d 643; Matter of Bombay Realty Corp. v Magna Carta, 100 NY2d 124; 150 Broadway N.Y. Assoc., L.P. v Bodner, 14 AD3d 1; BP A.C. Corp. v One Beacon Ins. Group, 8 NY3d 708.) III. Pathmark Stores, Inc.’s transfer without New York City Department of Housing Preservation and Development’s consent would materially breach the supermarket lease and violate section 8 (f) of the assignment contract. (328 Owners Corp. v 330 W. 86 Oaks Corp., 8 NY3d 372; DiPietro v County of Westchester, 237 AD2d 325.) IV Pathmark Stores, Inc. could not deliver insurable title absent an estoppel certificate from the landlord that it refused to provide. (Gargano v Rubin, 200 AD2d 554; Kopp v Barnes, 10 AD2d 532; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106; Hudson-Port Ewen Assoc. v Chien Kuo, 165 AD2d 301, 78 NY2d 944; Boecher v Borth, 51 AD2d 598; Van Vliet & Place, Inc. v Gaines, 249 NY 106; McAndrew v Lanphear, 280 App Div 6; Nowak v Rametta, 43 AD3d 1120.)

      Pillsbury Winthrop Shaw Pittman LLP, New York City (E. Leo Milonas, Frederick A. Brodie and Anne C. Lefever of counsel), for respondent.
    I. The assignment contract was not void. (Charlebois v Weller Assoc., 72 NY2d 587; 328 Owners Corp. v 330 W. 86 Oaks Corp., 8 NY3d 372; Neponsit Prop. Owners’ Assn. v Emigrant Indus. Sav. Bank, 278 NY 248; Lloyd Capital Corp. v Pat Henchar, Inc., 80 NY2d 124; Flegenheimer v Brogan, 259 App Div 347, 284 NY 268; Szerdahelyi v Harris, 67 NY2d 42; Barnes v Oceanus Nav. Corp., Ltd., 21 AD3d 975; Soto v State Farm Ins. Co., 83 NY2d 718; Shields v Gross, 58 NY2d 338; Kalisch-Jarcho, Inc. v City of New York, 58 NY2d 377; Public Serv. Mut. Ins. Co. v Goldfarb, 53 NY2d 392.) II. The Appellate Division correctly held that Pathmark Stores, Inc. was not required to obtain New York City Department of Housing Preservation and Development approval as a condition of closing. (Suffolk Bus. Ctr. v Applied Digital Data Sys., 78 NY2d 383; Stirn v 293 Ave. B Corp., 224 App Div 458; Dunn v Arniotes, 15 Misc 3d 1144[A], 2007 NY Slip Op 51141[U]; O.W. Siebert Co. v Kramer, 107 Misc 2d 520; Rozen v 7 Calf Cr., LLC, 52 AD3d 590; Utah v Dickinson, 275 App Div 120, 300 NY 610; 325 Schermerhorn, LLC v Nevins Realty Corp., 23 Misc 3d 1109[A], 2009 NY Slip Op 50686[U], 76 AD3d 625; Dukas v Tolmach, 2 AD2d 57; Riverside S. Planning Corp. v CRP/Extell Riverside, L.P., 13 NY3d 398; McCluskey v Cromwell, 11 NY 593.) III. The Appellate Division correctly found that the landlord’s letter did not cause a breach of the assignment contract. (King Party Ctr. of Pitkin Ave. v Mineo Realty, 286 AD2d 373; Cohn v White Oak Coop. Hous. Corp., 243 AD2d 440.) IV Pathmark Stores, Inc. was not required to obtain an estoppel from the landlord in order to convey insurable title. (Loba v Carey, 29 NY2d 302; Hudson-Port Ewen Assoc. v Chien Kuo, 165 AD2d 301, 78 NY2d 944.)
   OPINION OF THE COURT

Smith, J.

We interpret a contract to assign a lease of real property, and hold that the risk that the City of New York might not permit the assignment was one that the buyer agreed to take. That risk did not give the buyer an excuse for terminating the contract.

I

The property in question is on the Lower East Side of Manhattan, and was sold by the City for $475,000 in 1981 to the sponsor of an urban renewal project. The agreement between the City and the sponsor, called a Land Distribution Agreement (LDA), contained provisions designed to assure that, for at least 25 years, the land would be used for a Path-mark supermarket. The provision relevant to this case says:

“The Sponsor represents and agrees that the Disposition Area shall be developed as a supermarket shopping center which Sponsor shall lease for a twenty-five year term to Supermarket General Corporation for operation of a Pathmark Supermarket. The City consents and approves such lease disposition of the Disposition Area, (the ‘Pathmark Lease’), provided that until a period of twenty-five (25) years has elapsed following the completion of the improvements comprising the Project, the Sponsor may lease to a Lessee other than Supermarket General Corporation or may permit the sublease of the Pathmark Lease only upon obtaining the prior written approval of [the City] which shall not he unreasonably withheld or delayed.”

The parties do not dispute that the “completion of the improvements” occurred in January 1984, so that the restriction would expire in January 2009.

As the LDA contemplated, the project sponsor leased the property to Supermarket General Corporation, now known as Path-mark Stores, Inc., defendant in the present case. The sponsor later transferred the property to Pathmark’s present landlord.

By the early twenty-first century, the value of Lower East Side real estate had increased enormously, and Extell Development, Inc., plaintiffs parent, became interested in developing the property for residential use. After negotiations with both the landlord and Pathmark, plaintiff agreed in 2007 to acquire Pathmark’s leasehold interest for $87 million. Plaintiff and Pathmark entered into a Leasehold Assignment Contract on August 14, 2007, and plaintiff made a deposit of $5 million, later increased to $6 million in exchange for an extension of the closing date. But after the agreement was signed, the real estate market fell, and plaintiff, finding the deal no longer attractive, terminated the agreement on the eve of closing.

Plaintiff does not dispute that it terminated for economic reasons, but it claims that it was entitled to do so because Path-mark had breached the agreement. Pathmark, denying that it was in breach, kept plaintiffs $6 million deposit, and plaintiff brought this lawsuit to recover it. Pathmark counterclaimed for a declaratoiy judgment and damages.

Supreme Court denied both parties’ motions for summary judgment (2009 NY Slip Op 30433[U] [2009]). Pathmark appealed, and the Appellate Division, with one Justice dissenting, reversed and granted summary judgment dismissing the complaint (CPS Operating Co. LLC v Pathmark Stores, Inc., 76 AD3d 1 [1st Dept 2010]). The Appellate Division granted leave to appeal to this Court on a certified question (2010 NY Slip Op 77953DJ] [2010]), and we now affirm.

II

The case turns on whether Pathmark breached the Leasehold Assignment Contract, thus giving plaintiff a right to terminate it. Plaintiff relies primarily on the following provision of the contract: “Seller [Pathmark] hereby represents and warrants to Buyer [plaintiff], as of the date hereof that: (a) Seller is not prohibited from consummating the transactions contemplated in this Contract, by any . . . agreement, instrument or restriction to which Seller is a party or is bound (other than . . . any . . . Permitted Exceptions) . . . .”

Plaintiff says that Pathmark was “prohibited from consummating” the lease assignment transaction because, under the 1981 LDA, the lease could not be assigned before January 2009 without the City’s consent. There may be a number of flaws in this argument—among them the fact that Pathmark was not a party to the LDA—but one fatal flaw is enough to dispose of the case: The LDA was one of the “Permitted Exceptions” that were excluded from Pathmark’s representation and warranty. Included in the contract’s list of “Permitted Exceptions” was: “Terms, Covenants, Conditions, Provisions and Reverter set forth in the Land Disposition Agreement dated as of 6/3/81. . ..”

Thus, the risk that Pathmark might be “prohibited from consummating” the assignment agreement by the LDA was a risk that plaintiff expressly agreed to take. Perhaps the use of the words “Permitted Exceptions” to describe this risk-shifting is unusual; it may well be correct, as the dissenting Justice in the Appellate Division said, that “ ‘[permitted exceptions’ are generally understood as encumbrances listed in a real property contract that need not be removed by the seller” (76 AD3d at 13). But the words were obviously used in a broader sense here—the “Permitted Exceptions” are expressly excluded from Pathmark’s representation and warranty that it was free to close the deal. The risk that an objection from the City would prevent the closing, or require rescission, may have been thought a small one: we see no obvious reason why the City would not have consented to an assignment for residential development, particularly when the restriction, assuming it to be binding, had only a year and a half to run anyway. But however great or small the risk, plaintiff took it.

Contrary to the suggestion made by plaintiff and the Appellate Division dissent, this allocation of risk did not violate public policy. We may assume for present purposes that, at least until January 2009, there could be no transfer and no residential development without City approval. No public policy prohibited plaintiff from agreeing, as it did, but this was plaintiff’s problem and not Pathmark’s—that, if the City thwarted the transaction, Pathmark could still retain plaintiffs deposit, and plaintiff would be in breach for failure to close.

Plaintiffs remaining argument is without merit.

Accordingly, the order of the Appellate Division should be affirmed, with costs. The certified question should be answered in the affirmative.

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

Order affirmed, etc.