author: Cipabick, J.

text:
    [967 NE2d 666, 944 NYS2d 443]
    Abacus Federal Savings Bank, Appellant, v ADT Security Services, Inc., et al., Respondents, et al., Defendants.
    Argued February 7, 2012;
    decided March 22, 2012

      POINTS OF COUNSEL

      Port & Sava, Garden City (George S. Sava of counsel), for appellant.
    I. Defendants-respondents’ failure to perform their contractual duties gives rise to a tort claim. (Rich v New York Cent. & Hudson Riv. R.R. Co., 87 NY 382; Meyers v Waverly Fabrics, Div. of Schumacher & Co., 65 NY2d 75; North Shore Bottling Co. v Schmidt & Sons, 22 NY2d 171; Sommer v Federal Signal Corp., 79 NY2d 540; New York Univ. v Continental Ins. Co., 87 NY2d 308; 17 Vista Fee Assoc. v Teachers Ins. & Annuity Assn. of Am., 259 AD2d 75; Moch Co. v Rensselaer Water Co., 247 NY 160; Cox v Mason, 89 App Div 219.) II. The improper installation and/or maintenance of the alarm system and/or inadequate response to an alarm event does constitute gross negligence. (Food Pageant v Consolidated Edison Co., 54 NY2d 167; Dalton v Hamilton Hotel Operating Co., 242 NY 481; Weld v Postal Tel. Cable Co., 210 NY 59; Federal Ins. Co. v Automatic Burglar Alarm Corp., 208 AD2d 495; Amica Mut. Ins. Co. v Hart Alarm Sys., 218 AD2d 835; Cirillo v Slomin’s Inc., 196 Misc 2d 922; Arell’s Fine Jewelers v Honeywell, Inc., 170 AD2d 1013; LaBarre v Mitchell, 256 AD2d 850.) III. The protection of a federal bank and the assets and property of its clients is in the public interest. (Noble State Bank v Haskell, 219 US 104; Gause v Commonwealth Trust Co., 196 NY 134; Matter of Morse, 247 NY 290; Rothschild v Manufacturers Trust Co., 279 NY 355; Mount Vernon Trust Co. v Bergoff, 272 NY 192; Cole v Rome Sav. Bank, 96 Misc 188; Kissling v Skolkin, 256 App Div 935; Westchester Trust Co. v Harrison, 249 App Div 828.) IV Gross negligence is a question for the jury. (Sommer v Federal Signal Corp., 79 NY2d 540; Hartford Ins. Co. v Holmes Protection Group, 250 AD2d 526; Federal Ins. Co. v Honeywell, Inc., 243 AD2d 605; Williamsburg Food Specialties v Kerman Protection Sys., 204 AD2d 718; Food Pageant v Consolidated Edison Co., 54 NY2d 167; Rand & Paseka Mfg. Co. v Holmes Protection, 130 AD2d 429; Midtown Distribs. Corp. v Mutual Cent. Alarm Servs., Inc., 49 AD3d 346.) V. Defendants cannot shield themselves from the litigation if plaintiff was insured in the event of a burglary. (Kalisch-Jarcho, Inc. v City of New York, 58 NY2d 377; Gross v Sweet, 49 NY2d 102; Sommer v Federal Signal Corp., 79 NY2d 540; Dillon v Motorcycle Safety School, Inc., 59 AD3d 280; American Motorist Ins. Co. v Morris Goldman Real Estate Corp., 277 F Supp 2d 304; Travelers Indem. Co. of Conn, v Losco Group, Inc., 136 F Supp 2d 253; Great Am. Ins. Co. of N.Y. v Simplexgrinnell LP, 60 AD3d 456; Travelers Indem. Co. v Zeff Design, 60 AD3d 453; Duane Reade v Reva Holding Corp., 30 AD3d 229; Hanover Ins. Co. v D & W Cent. Sta. Alarm Co., 164 AD2d 112.) VI. Plaintiff-appellant’s breach of contract claim is not contractually barred. (Empire One Telecom., Inc. v Verizon

      N.Y., Inc., 26 Misc 3d 541; Kalisch-Jarcho, Inc. v City of New York, 58 NY2d 377.) VII. Plaintiff-appellant does not lack standing to recover the losses of its customers. (Marine Bank v Fulton Bank, 69 US 252; Abrahamovitz v New York City Ry. Co., 54 Misc 539; Green v Clarke, 12 NY 343.) VIII. Plaintiff-appellant’s pleadings are to be afforded liberal construction. (Arrington v New York Times Co., 55 NY2d 433, 459 US 1146; Dulberg v Mock, 1 NY2d 54; Ark Bryant Park Corp. v Bryant Park Restoration Corp., 285 AD2d 143; 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144; Cron v Hargro Fabrics, 91 NY2d 362; Leon v Martinez, 84 NY2d 83; Morone v Morone, 50 NY2d 481; Sotomayor v Kaufman, Malchman, Kirby & Squire, 252 AD2d 554; Fischbach & Moore v Howell Co., 240 AD2d 157; Polonetsky v Better Homes Depot, 97 NY2d 46.)

      Shook, Hardy & Bacon L.L.P. (Charles C. Eblen, of the Missouri bar, admitted pro hac vice, of counsel) and Calinoff & Katz, LLP, New York City, for ADT Security Services, Inc., respondent.
    I. Abacus Federal Savings Bank has failed to state a tort claim because the parties’ relationship is purely contractual and ADT Security Services, Inc. violated no duty existing independent of the duties established by the contract. (Rich v New York Cent. & Hudson Riv. R.R. Co., 87 NY 382; Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76 NY2d 220; Sergeants Benevolent Assn. Annuity Fund v Renck, 19 AD3d 107; Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382; Sommer v Federal Signal Corp., 79 NY2d 540; North Shore Bottling Co. v Schmidt & Sons, 22 NY2d 171; Great Am. Ins. Co. of N.Y. v Simplexgrinnell LP, 60 AD3d 456; Burlew v American Mut. Ins. Co., 99 AD2d 11; Spengler v ADT Sec. Servs., Inc., 505 F3d 456; Nahra v Honeywell, Inc., 892 F Supp 962.) II. Abacus Federal Savings Bank has failed to state a claim for gross negligence against ADT Security Services, Inc. because its allegations amount to claims that ADT improperly installed, maintained and/or responded to the alarm system signal. (Hartford Ins. Co. v Holmes Protection Group, 250 AD2d 526; Consumers Distrib. Co. v Baker Protective Servs., 202 AD2d 327, 84 NY2d 811; Nathan Silberberg Galleries v Holmes Protection of N.Y., 84 NY2d 859; Colnaghi, U.S.A. v Jewelers Protection Servs., 81 NY2d 821; Master Craft Jewelry Co. v Holmes Protection of NY., 277 AD2d 56; Metropolitan Prop. & Cas. Ins. Co. v Budd Morgan Cent. Sta. Alarm Co., 95 F Supp 2d 118; Hanover Ins. Co. v D & W Cent. Sta. Alarm Co., 164 AD2d 112; Arnica Mut. Ins. Co. v Hart Alarm Sys., 218 AD2d 835; Sanif, Inc. v Iannotti, 119 AD2d 654; Dubovsky & Sons v Honeywell, Inc., 89 AD2d 993.) III. Under New York law, the contracts’ provisions requiring commercial parties to forgo litigation or look solely to insurance are enforceable as a matter of law even against gross negligence. (New England Mut. Life Ins. Co. v Caruso, 73 NY2d 74; Oppenheimer & Co. v Oppenheim, Appel, Dixon & Co., 86 NY2d 685; Leon’s Bakery, Inc. v Grinnell Corp., 990 F2d 44; Sommer v Federal Signal Corp., 79 NY2d 540; Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76 NY2d 220; Board of Educ., Union Free School Dist. No. 3, Town of Brookhaven v Valden Assoc., 46 NY2d 653; Dillon v Motorcycle Safety School, Inc., 59 AD3d 280; Great Am. Ins. Co. of N.Y. v Simplexgrinnell LP, 60 AD3d 456; Interested Underwriters at Lloyds v Ducor’s, Inc., 103 AD2d 76, 65 NY2d 647; Austro v Niagara Mohawk Power Corp., 66 NY2d 674.)

      Lester Schwab Katz & Dwyer, LLP, New York City (Dennis M. Rothman of counsel), for Diebold, Incorporated, respondent.
    I. Abacus Federal Savings Bank may not assert a tort claim because it has failed to identify a breach of a legal duty independent of its contract with Diebold, Incorporated. (Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382; Yenrab, Inc. v 794 Linden Realty, LLC, 68 AD3d 755; New York Univ. v Continental Ins. Co., 87 NY2d 308; Sommer v Federal Signal Corp., 79 NY2d 540; Noble State Bank v Haskell, 219 US 104, 575; Rothschild v Manufacturers Trust Co., 279 NY 355; Matter of Morse, 247 NY 290; Gause v Commonwealth Trust Co., 196 NY 134; Logan v Empire Blue Cross & Blue Shield, 275 AD2d 187; Trustees of Columbia Univ. in City of N.Y. v Gwathmey Siegel & Assoc. Architects, 192 AD2d 151.) II. Abacus Federal Savings Bank’s agreement to look only to its own insurance for any loss, waiving subrogation, bars its claim of gross negligence. (Kalisch-Jarcho, Inc. v City of New York, 58 NY2d 377; Gross v Sweet, 49 NY2d 102; Board of Educ., Union Free School Dist. No. 3, Town of Brookhaven v Valden Assoc., 46 NY2d 653; Austro v Niagara Mohawk Power Corp., 66 NY2d 674; St. Paul Fire & Mar. Ins. Co. v Universal Bldrs. Supply, 409 F3d 73; Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76 NY2d 220; Great Am. Ins. Co. of N.Y. v Simplexgrinnell LP, 60 AD3d 456; Gulf Ins. Co. v Quality Bldg. Contr., Inc., 58 AD3d 595; State Farm Ins. Co. v J.P. Spano Constr., Inc., 55 AD3d 824; Great N. Ins. Co. v Interior Constr. Corp., 7 NY3d 412.) III. Abacus Federal Savings Bank has not pleaded and cannot plead conduct by Diebold, Incorporated amounting to gross negligence. (David Gutter Furs v Jewelers Protection Servs., 79 NY2d 1027; Colnaghi, U.S.A. v Jewelers Protection Servs., 81 NY2d 821;
      Sommer v Federal Signal Corp., 79 NY2d 540; Matter of New York City Asbestos Litig., 89 NY2d 955; Stuart Rudnick, Inc. v Jewelers Protection Servs., 194 AD2d 317; Ninacci Diamond & Jewelry Co. v Miller Freeman, Inc., 281 AD2d 342; Hartford Ins. Co. v Holmes Protection Group, 250 AD2d 526; Master Craft Jewelry Co. v Holmes Protection of N.Y., 277 AD2d 56, 96 NY2d 711; Midtown Distribs. Corp. v Mutual Cent. Alarm Servs., Inc., 49 AD3d 346; Federal Ins. Co. v Automatic Burglar Alarm Corp., 208 AD2d 495.) IV Abacus Federal Savings Bank lacks standing to recover the losses of its safe deposit customers. (Uribe v Merchants Bank of N.Y., 91 NY2d 336; James McKinney & Son v Lake Placid 1980 Olympic Games, 61 NY2d 836; Sokoloff v Town Sports Inti., 6 AD3d 185.)
   OPINION OF THE COURT

Cipabick, J.

Plaintiff Abacus Federal Savings Bank (Abacus) commenced this action against defendants ADT Security Services, Inc. (ADT) and Diebold, Incorporated (Diebold) to recover damages under tort and contract theories for losses incurred during a burglary of the bank. We affirm the dismissal of the complaint with one exception. We conclude that Abacus has adequately stated a cause of action for breach of contract as against ADT for its alleged losses other than losses allegedly sustained by its safe deposit box customers.

Abacus is a federally chartered savings and loan association with a branch located in Lower Manhattan (the branch). It provides a variety of deposit services, including the leasing of safe deposit boxes to its customers. Following the close of business on Saturday, March 20, 2004, burglars forced their way into the branch through a back entrance door and a second interior door. According to security camera images taken during the course of the incident, the burglars located the vault inside and, during a several hour period, used large acetylene gas tanks as blow torches to break down one of the vault’s concrete and metal walls. Once in the vault, the burglars gained access to a safe storing the branch’s overnight cash and over 20 safe deposit boxes belonging to Abacus’ customers. The amended complaint alleges that the burglars stole $589,749.55 in cash from the safe and property valued at $926,512 from the safe deposit boxes. The police were not notified during the course of the burglary. Rather, an Abacus employee discovered what had occurred when the branch opened for business on Monday morning, March 22, 2004.

Prior to the burglary, each defendant had separately contracted with Abacus to supply security services for the branch. Specifically, ADT’s contract with Abacus obligated ADT to install and maintain a 24-hour industry-certified central station security system to protect the branch premises and the vault. Within the vault, ADT purported to utilize certain detectors that would identify intruder movement and the presence of smoke. ADT’s security system was supposedly designed to transmit any alarm signals triggered in the vault to ADT’s central monitoring system. Diebold’s contract with Abacus required Diebold to provide a backup alarm system that included additional central station monitoring, another form of telephone line security and “signal monitoring,” which would activate an alarm if ADT’s alarm system failed to operate properly.

The gravamen of Abacus’ amended complaint is that defendants violated their contractual obligations by installing woefully inadequate security systems, which they failed to inspect. Abacus further alleges that defendants knew for weeks, if not months, that the security systems in place were not working in that they were generating a series of flaws, malfunctions and false alarms. For example, in the three months preceding the burglary there were, according to an expert’s affidavit Abacus submitted in opposition to defendants’ motions, 17 phone line failures and a number of other occurrences that were “consistent with an intruder cutting the phone line” and “should have created an alarm event.” Abacus asserts that not only did defendants fail to investigate these malfunctions, but they failed to notify anyone at the branch of the problem.

Both contracts contained clauses that exculpated defendants from liability for their own negligence and limited their liability, under all circumstances, to $250. Diebold’s contract contained a clause entitled “Property Insurance and Waiver of Subrogation” where Abacus agreed to obtain insurance coverage to cover its losses in the event of a theft. The agreement between Diebold and Abacus provided that Abacus “shall look solely to its insurer for recovery of its loss and hereby waives any and all claims for such loss against Diebold” and that Abacus’ insurance policy would contain a clause providing that such waiver would not invalidate the coverage. There was no similar waiver-of-subrogation clause in the contract between Abacus and ADT. Instead, their contract merely provided “that insurance, if any, covering personal injury and property loss or damage” was Abacus’ responsibility to obtain.

In addition to the losses incurred during the weekend of the burglary, Abacus seeks money damages for not less than $5 million for lost business as a result of the burglary, not less than $5 million for a loss of reputation in the community and not less than $1 million in punitive damages. Abacus also seeks $85,436 in costs to repair the vault and $30,000 in added security costs it absorbed. Defendants moved to dismiss the complaint, 10 causes of action in all, in its entirety. Supreme Court denied defendants’ motion to dismiss the breach of contract cause of action and the gross negligence cause of action, but dismissed the remainder of the amended complaint.

Addressing the breach of contract claim, Supreme Court observed that while New York courts regularly enforce contractual provisions absolving a party from acts of its own ordinary negligence, public policy prohibits waivers of liability for gross negligence. The court concluded that since the pleadings adequately alleged that defendants were grossly negligent in their failure to respond to the burglary, Abacus could proceed to discovery on the breach of contract cause of action. Supreme Court likewise denied the motion to dismiss the tort cause of action. It further opined that Abacus has standing to assert claims based upon losses suffered by its safe deposit box customers. Defendants appealed.

The Appellate Division reversed the order of Supreme Court and granted defendants’ motions to dismiss the amended complaint in its entirety (see Abacus Fed. Sav. Bank v ADT Sec. Serus., Inc., 77 AD3d 431, 432 [1st Dept 2010]). In dismissing the breach of contract cause of action, the court held that the allegations in the amended complaint “amount to nothing more than claims of ordinary negligence as opposed to gross negligence” (id. at 433). The court similarly found no basis for tort liability in the complaint (see id.). Furthermore, the court concluded that, in any event, the waiver-of-subrogation provision contained in the contract between Abacus and Diebold serves as “a defense to all of plaintiffs claims” against Diebold (id. at 434). We granted Abacus leave to appeal (16 NY3d 712 [2011]) and now modify.

As a general rule, parties are free to enter into contracts that absolve a party from its own negligence (see Melodee Lane Lingerie Co. v American Dist. Tel. Co., 18 NY2d 57, 69 [1966]) or that limit liability to a nominal sum (see Florence v Merchants Cent. Alarm Co., 51 NY2d 793, 795 [1980]). However, it is New York’s public policy that a party cannot “insulate itself from damages caused by grossly negligent conduct” (Sommer v Federal Signal Corp., 79 NY2d 540, 554 [1992]). Therefore, exculpatory clauses and liquidated damages clauses in contracts are not enforceable against allegations of gross negligence (see id.). We have observed that “[g]ross negligence, when invoked to pierce an agreed-upon limitation of liability in a commercial contract, must ‘smack[ ] of intentional wrongdoing’ ” (id., quoting Kalisch-Jarcho, Inc. v City of New York, 58 NY2d 377, 385 [1983]). “It is conduct that evinces a reckless indifference to the rights of others” (id.).

We applied this standard in David Gutter Furs v Jewelers Protection Servs. (79 NY2d 1027 [1992]). In that case, the “plaintiff, a fur dealer, contracted with [the] defendant to design, install and monitor a burglar alarm system” (id. at 1028). Several weeks after plaintiff occupied its premises, furs were stolen in a nighttime burglary, but the alarm did not sound. Plaintiff commenced an action against the defendant for breach of contract and further claimed that the exculpatory and limitation of liability clauses in their contract were unenforceable because the defendant was grossly negligent (see id. at 1028-1029). We concluded that the plaintiffs allegations—“that there should have been two motion detectors, instead of one, on each level; a shock sensor should have been installed; defendant should have ascertained how the inventory would be arranged; and a post-occupancy inspection should have been undertaken”—only amounted to ordinary negligence as there was no issue of fact that the “defendant performed its duties with reckless indifference to [the] plaintiff’s rights” (id. at 1029).

Here, in contrast, we conclude that the allegations in the amended complaint sufficiently allege conduct on the part of the defendants that, if true, constitutes gross negligence. Indeed, unlike the plaintiff in David Gutter Furs, Abacus has alleged much more than mere failure to install a proper working alarm system and inspect it. Abacus alleges that both defendants had knowledge—for weeks, if not months—that the equipment had been malfunctioning. Moreover, Abacus asserts that defendants not only failed to investigate the source of their equipment malfunction, but they failed to put anyone at the branch on notice of the potential security breach. Of course, these allegations may not be proved, or may be shown by defendants’ evidence to be less significant than they seem; but on this record, plaintiffs have alleged the type of conduct that smacks of intentional wrongdoing and evinces a reckless indifference to the rights of others (see Federal Ins. Co. v Automatic Burglar Alarm Corp., 208 AD2d 495, 496 [2d Dept 1994]).

Nevertheless, Diebold argues that the waiver-of-subrogation clause in its contract with Abacus acts as a total defense to the claims asserted by Abacus in its complaint. We agree. In Board of Educ., Union Free School Dist. No. 3, Town of Brookhaven v Valden Assoc. (46 NY2d 653 [1979]), we upheld a similar waiver-of-subrogation clause. There, we observed that the contract between the plaintiffs and the defendants required the plaintiffs to obtain insurance to cover 100% of any losses incurred on the plaintiffs property (see id. at 656). Further, the plaintiffs expressly “waive[d] all rights” to seek damages as against the defendants covered by such insurance (id.). In upholding the validity of this contract, we recognized that “[a] distinction must be drawn between contractual provisions which seek to exempt a party from liability . . . and contractual provisions . . . which in effect simply require one of the parties to the contract to provide insurance for all of the parties” (id. at 657; see also Austro v Niagara Mohawk Power Corp., 66 NY2d 674, 676 [1985]; Great Am. Ins. Co. of N.Y. v Simplexgrinnell LP, 60 AD3d 456, 456-457 [1st Dept 2009]). We discern no basis to depart from this rule here. Thus, we affirm the dismissal of the complaint as against Diebold.

ADT’s contract with Abacus does not contain a similar waiver-of-subrogation clause that would act as a total defense to Abacus’ claim. We note that the contract between Abacus and ADT did not require Abacus to obtain insurance to cover losses stemming from ADT’s gross negligence. The decision to obtain insurance, “if any,” was discretionary as to Abacus. Moreover, the contract did not contain an express waiver by Abacus to waive all rights for damages covered by insurance it may have obtained as against ADT. Thus, we reinstate the breach of contract cause of action as against ADT. In so doing, we note that the complaint only adequately states a basis upon which Abacus can recover for its own losses. As pleaded, Abacus fails to allege sufficient facts to confer standing to pursue the losses allegedly sustained by its safe deposit box customers.

Finally, we conclude that the complaint did not allege conduct that would give rise to separate liability in tort. Here, the allegations that a breach of contract occurred as a result of gross negligence does not give rise to a duty independent of the contractual relationship (see Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 389 [1987]; cf. Sommer, 79 NY2d at 551-553 [the plaintiffs breach of contract claim against the defendant fire alarm company may also sound in tort where the defendant’s alleged failure to act with due care affected a significant public interest independent of its contractual obligations]).

Accordingly, the order of the Appellate Division should be modified, without costs, by reinstating so much of plaintiffs cause of action for breach of contract as against ADT Security Services, Inc. that does not assert claims on behalf of plaintiffs safe deposit box customers and, as so modified, affirmed.

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

Order modified, etc.

       Abacus did not cross-appeal Supreme Court’s decision to dismiss the remaining eight causes of action in the complaint.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    [967 NE2d 174, 943 NYS2d 796]
    In the Matter of Paul Kosowski et al., Appellants, v Daniel F. Donovan, Jr., et al., Respondents.
    Argued March 21, 2012;
    decided March 27, 2012

      POINTS OF COUNSEL

      Steven G. Legum, Mineóla, for appellants.
    I. Since the County Committee of the Conservative Party of Nassau County did not have the minimum number of members required under the Election Law, the Court should hold that the Committee is not legally constituted, all actions taken by it are null and void, and the election of officers vacated. (Mulholland v Carey, 976 F Supp 166; Matter of Moore v Pikul, 64 Misc 2d 650.) II. Since the Appellate Division misinterpreted the plain and unambiguous language of Election Law § 16-102 (2), it erred in holding that the proceeding was not timely commenced. (Matter of Stampf v Hill, 218 AD2d 919; Matter of Sayegh v Castaldo, 287 AD2d 639; Delanoy v Faction, 287 AD2d 592; Matter of Essen-berg v Reape, 272 AD2d 544; Matter of Stabile v DeFronzo, 231 AD2d 577; Matter of Dee v State Tax Commn., 257 App Div 531, 282 NY 617; Matter of American Can Co. v State Tax Commn., 13 AD2d 175, 11 NY2d 643.)

      Bee Ready Fishbein Hatter & Donovan, LLP, Mineóla (Peter A. Bee and Stephen L. Mártir of counsel), for respondents.
    I. Petitioners-appellants ’ actions were untimely pursuant to Election Law § 16-102. (Matter of Voyticky v Gore, 134 AD2d 354; Matter of Flynn v Olma, 286 AD2d 568; Matter of Thomas v Turco, 43 AD3d 617.) II. Although not determined by the Appellate Division below, the County Committee of the Conservative Party of Nassau County had the minimum number of elected members required under the Election Law, and if the Court finds the proceeding timely, the Court should declare the Committee is legally constituted. (Mulholland v Carey, 976 F Supp 166.) III. Under either the Appellate Division, Second Department’s interpretation or under the Appellate Division, Third Department’s interpretation of Election Law § 16-102, petitioners-appellants’ proceeding would be dismissed for being untimely, therefore the Appellate Division’s ruling should be affirmed since this Court cannot issue an advisory opinion. (People v Cahill, 2 NY3d 14; Matter of Hearst Corp. v Clyne, 50 NY2d 707; Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801; Matter of Stampf v Hill, 218 AD2d 919.)
   OPINION OF THE COURT

Per Curiam.

Petitioners, elected members of the Nassau County Committee of the Conservative Party (hereinafter County Committee), attended a meeting held on September 24, 2010 at which the County Committee elected as officers respondents Daniel F. Donovan, Jr., Maryann T. Hughes, Christopher M. Mistron, Marty Blessinger, John J. Fanning, Daniel J. Lang, Vincent A. Ciccolella, Kevin J. Crean and Michael Landman (collectively, respondent officers). Respondents Donovan and Mistron filed a certificate of election with the State and Nassau County Boards of Elections, date-stamped as received by the Nassau County Board on September 28, 2010.

By order to show cause filed October 6 and served October 7, 2010, petitioners commenced this proceeding against respondent officers and others. The petition alleged that the County Committee, as constituted at the time of the meeting, had fewer members than required by Election Law § 2-104 and therefore “could not . . . undertake any lawful action or elect any officials.” Petitioners also alleged that some of the members were unqualified to serve on the County Committee. Respondent officers answered, raising as affirmative defenses that petitioners lacked standing and that the petition was untimely. Respondent Mistron, in an opposing affidavit, also argued that the number of County Committee members required by law should be calculated based only on election districts in which Conservative Party voters were registered; and controverted petitioners’ allegation that certain members of the County Committee were not qualified to hold office.

Supreme Court entered an order on January 18, 2011, which denied the petition and dismissed the proceeding. Assuming arguendo that the proceeding was not time-barred, the court held that the County Committee had a sufficient number of members (2011 NY Slip Op 33605[U] [2011]). On May 17, 2011, the Appellate Division affirmed on the ground that the proceeding was untimely because it was commenced after the expiration of the 10-day limitations period in Election Law § 16-102 (2) (84 AD3d 1089 [2d Dept 2011]). We granted petitioners leave to appeal (17 NY3d 714 [2011]), and now affirm.

We have stated that a petition challenging “the validity” of a county committee must be commenced “within 10 days after the . . . organizational meeting of the Committee, at the latest” (Sack v Board of Elections of City of N.Y., 65 NY2d 958, 959 [1985], citing Election Law § 16-102 [2]; see also Matter of Flynn v Olma, 286 AD2d 568, 568 [4th Dept 2001], Iv denied 96 NY2d 718 [2001]; Matter of Valin v Adamczyk, 286 AD2d 566 [4th Dept 2001], Iv denied 96 NY2d 718 [2001]; Matter of Stabile v DeFronzo, 231 AD2d 577, 577 [2d Dept 1996]). While a case can be made that the 10-day period should apply to party meetings that select candidates for public office, and not to meetings that only select party officers (see Town oflslip Town Comm, of Conservative Party of N.Y. State v Leo, 71 AD2d 624, 625 [2d Dept 1979] [“Section 16-102 of the Election Law imposes a short limitation of 10 days in order to meet the exigencies of preparing ballots and conducting elections for public office”]), we do not adopt that view. The statute undoubtedly provides for challenging people elected for “party position” (Election Law § 16-102 [1]), and to interpret it to remain silent as to the statutory period would mean that a significantly longer one would apply (e.g., petitioners suggest the four-month period for CPLR article 78 proceedings [CPLR 217]). The 10-day period is sensible and consistent with the Legislature’s avowed purpose when it amended section 16-102 (2) in 1986 to include committee meetings—i.e., “to compute the time within which to commence a legal proceeding to be measured not only from the holding of a primary election, caucus, or convention, but to include ... a meeting of a party committee” (Mem in Support, Bill Jacket, L 1986, ch 710, at 5).

In light of our disposition of this appeal, we need not and do not express any opinion as to whether, under Election Law § 2-104, only election districts in which registered voters of a political party reside should be counted toward the total number of required committee members for that party.

Accordingly, the order of the Appellate Division should be affirmed, without costs.

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur in per curiam opinion.

Order affirmed, without costs.


author: Smith, J.

text:
    [967 NE2d 179, 943 NYS2d 801]
    The People of the State of New York, Respondent, v James Extale, Appellant.
    Argued February 7, 2012;
    decided March 27, 2012

      POINTS OF COUNSEL

      Muldoon & Getz, Rochester (Jon P. Getz of counsel), for appellant.
    I. Defendant’s right to a trial by indictment as voted by the grand jury is guaranteed by the New York Constitution, article I, § 6. (Matter of Simonson v Cahn, 27 NY2d 1; People v Boston, 75 NY2d 585; People v Perez, 83 NY2d 269; People v Lancaster, 69 NY2d 20; People v Ercole, 308 NY 425; People v Van Every, 222 NY 74; Ex parte Bain, 121 US 1; People v Grega, 72 NY2d 489; People v Kuehn, 5 AD2d 516; People v Banville, 134 AD2d 116.) II. Because of the first order of the Appellate Division, charging assault in the second degree in the second trial as a lesser-included offense of assault in the first degree violated CPL 40.20, the Fifth and Fourteenth Amendments of the United States Constitution and article I, § 6 of the New York Constitution. (People v Gause, 81 AD3d 1293; J-Mar Serv. Ctr., Inc. v Mahoney, Connor & Hussey, 45 AD3d 809; People v Rodriguez, 30 AD3d 691; Benton v Maryland, 395 US 784; People v Gravesandy, 221 AD2d 465; People v Williams, 133 AD2d 717; People v Maldonado, 123 AD2d 788; People v Skinner, 57 AD2d 785.) III. The proper remedy is reversal and dismissal of the assault in the second degree conviction. (People v Maharaj, 89 NY2d 997; People v Flynn, 79 NY2d 879; People v Scala, 26 NY2d 753; People v Watkins, 233 AD2d 904; People v Gibson, 54 AD3d 350; People v Burwell, 53 NY2d 849.)

      Michael C. Green, District Attorney, Rochester (Geoffrey Kaeuper of counsel), for respondent.
    I. Defendant’s right to a trial by grand jury indictment was not violated. (People v Lancaster, 69 NY2d 20; People v Franco, 86 NY2d 493; People v Iannone, 45 NY2d 589; People v Wilkins, 68 NY2d 269; People v Cade, 74 NY2d 410; People v Leon, 7 NY3d 109.) II. The District Attorney had the authority to withdraw one count of the indictment and proceed to trial on the remaining charges. (People v Di Falco, 44 NY2d 482; People v Baker, 14 NY3d 266; Matter of Suarez v Byrne, 10 NY3d 523; People v Fraser, 96 NY2d 318; People v Leon, 7 NY3d 109; People v Zimmer, 51 NY2d 390; People v Urbaez, 10 NY3d 773; People ex rel. Gardenier v Board of Supervisors of County of Columbia, 134 NY 1; People v Feingold, 7 NY3d 288; People v Grega, 72 NY2d 489.) III. The court properly submitted assault in the second degree to the jury at defendant’s second trial. (People v Charles, 78 NY2d 1044.) IV Defendant has not claimed any error for which the remedy is dismissal of the indictment. (People v Leon, 7 NY3d 109.)

      Janet DiFiore, District Attorney, White Plains (Patrick J. Hynes and David P. Stromes of counsel), for District Attorneys Association of the State of New York, amicus curiae.
    District attorneys enjoy broad discretion in determining which crimes to prosecute and, absent any limitation in the Criminal Procedure Law, may elect, prior to the commencement of trial, to withdraw charges returned against a defendant by a grand jury. (People v Urbaez, 10 NY3d 773; People v Di Falco, 44 NY2d 482; Costello v United States, 350 US 359; Fields v Soloff, 920 F2d 1114; People v Valles, 62 NY2d 36; United States v Sells Engineering, Inc., 463 US 418; United States v Cox, 342 F2d 167; People v Douglass, 60 NY2d 194; United States v Cadarr, 197 US 475; Confiscation Cases, 74 US 454.)
   OPINION OF THE COURT

Smith, J.

We hold that a prosecutor does not have the unilateral power to dismiss a count of a grand jury indictment over a defendant’s objection. Whether such a count should be dismissed at the prosecutor’s request is an issue to be decided by the court in its discretion.

I

In 2004, defendant drove his pickup truck into a police officer, injuring her seriously. A grand jury indicted him for several crimes, including first degree assault (intentionally causing serious physical injury by means of a dangerous instrument [Penal Law § 120.10 (!)]) and first degree vehicular assault (with criminal negligence, causing serious physical injury while driving while intoxicated, in the presence of certain aggravating factors [Penal Law § 120.04 (1), (2) (b); see former Penal Law § 120.03 (1)]). Defendant was convicted of these and other charges, but the Appellate Division ordered a new trial on the first degree assault and first degree vehicular assault counts, holding that they required inconsistent mental states and should have been submitted to the jury in the alternative (People v Extale, 42 AD3d 897 [4th Dept 2007]).

At the second trial, before jury selection, the prosecutor announced to the judge: “the People do intend to withdraw the second count of the indictment and proceed solely on the Assault in the First Degree count.” Defense counsel objected, and the prosecutor replied tersely: “I believe the People can choose what charges to go forward on, and we’re doing so.” The court agreed with the prosecutor, saying: “I believe you have the authority, if you wish, to withdraw the second count of the indictment,” and the trial proceeded on one count only.

Defendant was convicted of second degree assault (Penal Law § 120.05 [4] [recklessly causing serious physical injury by means of a dangerous instrument]) as a lesser included offense of first degree assault. The Appellate Division affirmed, rejecting defendant’s argument “that County Court erred in allowing the prosecutor to withdraw the count charging him with vehicular assault in the first degree” (People v Extale, 78 AD3d 1519, 1520 [4th Dept 2010]). A Judge of this Court granted leave to appeal (16 NY3d 830 [2011]), and we now reverse and order a new trial.

II

Usually, of course, a defendant is happy to have a charge against him dismissed, and it is the People who oppose dismissal. But a role reversal can occur when a defendant, not optimistic about the likelihood of acquittal, wants the jury to have a chance to compromise or exercise mercy by convicting him of a lesser crime (see People v Leon, 7 NY3d 109, 113-114 [2006]). This line of thinking often leads defendants to request submission of a lesser included offense, in addition to the offense charged in the indictment, and the defendant is entitled to have such an offense submitted “if there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater” (CPL 300.50 [1]; see CPL 300.50 [2]).

Here, the crime that defendant wanted the jury to consider, and the People did not, was not a lesser included offense, but one of the offenses for which defendant was indicted. The People argue that they have discretion to withdraw such a count. We disagree: the discretion is the trial court’s, not the People’s.

There was a time—almost two centuries ago—when the power to dismiss a count of an indictment was the prosecutor’s, and the prosecutor’s alone. At “early common law” dismissal was by nolle prosequi, which only a prosecutor, not a court, could enter (People v Douglass, 60 NY2d 194, 201-202 [1983]). In 1828, however, the prosecutor’s power was limited by a statute requiring court approval (2 Revised Statutes of New York, part IV ch II, tit IV § 54, at 728 [1st ed 1829]), and in 1881 the nolle prosequi was abolished and the power to dismiss transferred from the prosecutor to the judge. The 1881 Legislature adopted the Code of Criminal Procedure, which included the following sections:

“§ 671. Court may order indictment to be dismissed.
“The court may, either of its own motion, or upon the application of the district attorney, and in furtherance of justice, order an action, after indictment, to be dismissed. . . .
“§ 672. Nolle prosequi abolished; no indictment to be dismissed or abandoned except according to this chapter.
“The entry of a nolle prosequi is abolished; and neither the attorney-general, nor the district attorney, can discontinue or abandon a prosecution for a crime, except as provided in the last section” (Code of Criminal Procedure §§ 671, 672).

These two sections remained in force until the Criminal Procedure Law replaced the Code of Criminal Procedure in 1970. At that time, the substance of section 671 was incorporated in what is now CPL 210.40 (3), which says: “An order dismissing an indictment in the interest of justice may be issued upon motion of the people or of the court itself as well as upon that of the defendant. Upon issuing such an order, the court must set forth its reasons therefor upon the record.”

Section 672 of the Code of Criminal Procedure, abolishing the nolle prosequi, was not carried forward into the Criminal Procedure Law. The People, and the amicus supporting them, suggest that this omission was a repeal of the abolition, and thus brought the nolle prosequi back into existence. We find the suggestion unpersuasive. Nothing in the text or legislative history of the Criminal Procedure Law expresses any intention to restore to prosecutors the unilateral right to refuse to proceed on a count of a grand jury indictment. The omission in the new statute of any counterpart to the old section 672 is more likely to mean simply that the Legislature thought it unnecessary to say in 1970 that the nolle prosequi power was “abolished,” when that power had been nonexistent for 89 years.

The nolle prosequi power still does not exist, and therefore County Court erred here in believing that the prosecutor could, at her own discretion, choose not to proceed with the first degree vehicular assault count of the indictment. That does not mean that the count had to be submitted to the jury if defendant wanted it to be, but the issue was one for the trial court’s discretion, not the prosecutor’s. The People could have moved for dismissal in the interest of justice under CPL 210.40 (3), or the court could have exercised its discretion under CPL 300.40 (6) (a) to withdraw a count from the jury when “[t]he people consent that it not be submitted” (see Leon, 7 NY3d at 112-113). And it may be that the court has inherent power to dismiss a count with the consent of the People even in situations to which neither CPL 210.40 (3) nor 300.40 (6) (a) applies; that is an issue not before us, on which we express no opinion. Nor need we address a situation in which the prosecutor wants to dismiss a count of an accusatory instrument that did not originate with a grand jury (see CPL 100.10; cf. People v Urbaez, 10 NY3d 773 [2008]). We hold only that in a case like this the prosecutor is not empowered to dismiss a count without court approval.

Of course it is possible that, if County Court had understood itself to have discretion in this case, it would have exercised that discretion in the prosecutor’s favor and dismissed the first degree vehicular assault count. We cannot know that, however: the trial judge made quite clear that he was deferring to the prosecutor’s choice, not making a choice of his own. Nor can we be sure that the dismissal of the vehicular assault count did not affect the jury’s verdict. We have recognized that, “as a practical matter,” the opportunity to convict a defendant of a less serious charge “may affect a jury’s deliberations” (People v Boettcher, 69 NY2d 174, 180 [1987]). Here, the jury might have chosen to convict defendant on the withdrawn count, first degree vehicular assault, rather than the second degree assault charge on which it did convict him. If it had made that choice, that would have benefitted defendant, because, while both these crimes are class D felonies, second degree assault is defined as a violent felony while first degree vehicular assault is not (see Penal Law § 70.02 [c]). Defendant is therefore entitled to have his conviction set aside.

Defendant suggests that, since he has already served the term of imprisonment to which he was sentenced, a new trial would serve no purpose and the indictment should be dismissed. We reject the suggestion. While we have sometimes ordered dismissal rather than a new trial in cases involving “relatively minor crimes” (People v Burwell, 53 NY2d 849, 851 [1981]), this is not such a case. The crimes charged here are serious, and the People should not be barred from trying again to obtain a conviction, if they think that effort is justified.

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

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

Order reversed, etc.


author: Pigott, J.

text:
    [967 NE2d 176, 943 NYS2d 798]
    In the Matter of Peter E. Bissell, Appellant, v Town of Amherst et al., Respondents.
    Argued February 8, 2012;
    decided March 27, 2012

      POINTS OF COUNSEL

      Maxwell Murphy, LLC, Buffalo (Alan D. Voos of counsel), for appellant.
    I. Workers’ Compensation Law § 29 (1) was amended in 1975 to provide for precisely the relief obtained by Mr. Bissell in this case. (Matter of Kelly v State Ins. Fund, 60 NY2d 131; Matter of Merchant v Pinkerton’s Inc., 50 NY2d 492; O’Connor v Lee Hy Paving Corp., 480 F Supp 716.) II. The future medical benefits which the New York State Insurance Fund has been relieved of paying are in no way speculative. (Matter of Stenson v New York State Dept. of Transp., 84 AD3d 22; Matter of Kelly v State Ins. Fund, 60 NY2d 131; Burns v Varriale, 34 AD3d 59, 9 NY3d 207; Wood v Firestone Tire & Rubber Co., 123 Misc 2d 812; Cox v Belmont Iron Works, 104 Misc 2d 801; Steitz v Gifford, 280 NY 15; Matter of McKee v Sithe Independence Power Partners, 281 AD2d 891; Matter of Briggs v Kansas City Fire & Mar. Ins. Co., 121 AD2d 810; Becker v Huss Co., 43 NY2d 527; Miszko v Gress, 4 AD3d 575.) III. Mr. Bissell is entitled to immediate reimbursement of the equitable portion of the carrier’s future benefit that he has already paid. (Smith v Spinoccia, 119 AD2d 660.) IV Alternatively, this Court should remit this matter to Supreme Court for recalculation of the Fund’s future benefit based upon proof of its claimed actual future medical benefit.

      New York State Insurance Fund, New York City (Hal Friedman and Gregory P Allen of counsel), for New York State Insurance Fund, respondent.
    I. The holding by the Appellate Division, Fourth Department, in Matter of Bissell v Town of Amherst (79 AD3d 1638 [2010]) is consistent with precedent set by this Court on the issue of equitable apportionment of litigation costs of third-party actions. (Matter of Granger v Urda, 44 NY2d 91; Matter of Kelly v State Ins. Fund, 60 NY2d 131; Matter of Briggs v Kansas City Fire & Mar. Ins. Co., 121 AD2d 810; Matter of McKee v Sithe Independence Power Partners, 281 AD2d 891; Bums v Varriale, 9 NY3d 207.) II. The jury verdict for future medical costs is not the proper measure of the benefit of New York State Insurance Fund’s offset against paying these costs. (Matter of Kelly v State Ins. Fund, 60 NY2d 131.) III. New York State Insurance Fund’s benefit of being relieved of paying Peter Bissell’s future medical expenses is speculative and cannot be reduced to present value for purposes of calculating its additional contribution to litigation costs. (Matter of McKee v Sithe Independence Power Partners, 281 AD2d 891; Matter of Kelly v State Ins. Fund, 60 NY2d 131; Burns v Varriale, 9 NY3d 207.) IV New York State Insurance Fund has no obligation to prove the value of future medical costs. V New York State Insurance Fund does not have to make its contribution for the benefit of its offset in full because it realizes this benefit over time.
   OPINION OF THE COURT

Pigott, J.

In Matter of Kelly v State Ins. Fund, we held that when a workers’ compensation claimant recovers damages in a third-party action, “the compensation carrier’s equitable share of litigation costs incurred by the claimant may be apportioned on the basis of the total benefit that the carrier derives from the claimant’s recovery” (60 NY2d 131, 135 [1983]). The carrier’s “total benefit” is the recoupment of its lien (the sum of past benefits paid the claimant) and relief from future obligations to make benefit payments to the claimant (id.). Where a carrier’s future benefit “cannot be quantified or reliably predicted,” i.e., the future benefit is speculative, it is improper for a court to apportion litigation costs based on that benefit (Burns v Varriale, 9 NY3d 207, 215 [2007]).

On this appeal, we are asked to determine whether the future medical benefits that a compensation carrier has been relieved of paying due to a claimant’s successful prosecution of a third-party action are “so speculative that it would be improper to estimate and to assess litigation costs against [that] benefit to the carrier” (Matter of Kelly, 60 NY2d at 139). We conclude that they are, and hold that the carrier need only pay its equitable share of attorneys’ fees and costs incurred by a claimant once the claimant incurs and pays each medical expense.

I

Peter Bissell sustained injuries in a work-related accident that rendered him a paraplegic. The Workers’ Compensation Board concluded that Bissell sustained a permanent total disability and ordered the New York State Insurance Fund (the Fund), the compensation carrier for Bissell’s employer, to pay Bissell $400 a month for the duration of his life. Pursuant to Workers’ Compensation Law § 29 (1), Bissell commenced a third-party action against the Town of Amherst. As relevant here, the jury awarded Bissell $4,650,000 in damages over 32.7 years to cover future medical expenses. The trial court reduced that award to its present value of $4,259,536.

The Fund asserted a lien against Bissell’s judgment in the amount of $219,760, representing $154,880 in past workers’ compensation benefits and $64,880 for past medical expenses. It acknowledged its Kelly obligation to contribute towards attorneys’ fees relative to the present value of the lost wages compensation benefit given Bissell’s permanent total disability designation; however, the Fund refused Bissell’s request that it pay that share of attorneys’ fees relative to the recovery of the future medical expenses awarded him, offering to pay its share of the cost when Bissell actually incurred each medical expense.

Bissell commenced a proceeding pursuant to section 29 (1) of the Workers’ Compensation Law to extinguish the Fund’s $219,760 lien against the third-party recovery and demanded $1,399,734 in “fresh money” representing, in part, the Fund’s equitable share of the cost of recovery of the $4,259,536 in future medical expenses that the Fund had been relieved of expending for Bissell’s future medical care. The Fund countered that it was not bound by a jury’s future medical expenses award, and that because it was impossible to reasonably ascertain the “total benefit” the Fund received by virtue of that award, it would reimburse Bissell the agreed-upon 33.5% reimbursement of those expenses only when Bissell actually incurred them.

Supreme Court entered a judgment granting Bissell’s petition in its entirety. The Appellate Division “modified] the judgment by denying those parts of the petition seeking to extinguish [the Fund’s] lien and seeking to recover from [the Fund] its share of litigation costs insofar as the benefit received by [the Fund] with respect to forgone future medical payments is included in the calculation of its share of litigation costs,” and remitted the proceeding to Supreme Court for a recalculation of the Fund’s share of litigation costs (79 AD3d 1638, 1641 [4th Dept 2010]). This Court granted leave to appeal and we now affirm.

II

There is no question that the Fund received a benefit from the third-party action, i.e., it will be relieved of paying a substantial sum of Bissell’s future medical expenses and lost wages (see Workers’ Compensation Law § 29 [4] [setting forth the carrier’s right to credit the claimant’s recovery in the third-party action against its obligation to pay additional workers’ compensation indemnity and/or medical benefits]). As a result, the Fund must pay its equitable share of the litigation costs expended in obtaining that recovery (see Workers’ Compensation Law § 29 [1]). At issue, however, is whether the Fund is bound by the jury’s future medical expenses award, such that the Fund’s 33.5% share of litigation costs can be “quantified or reliably predicted” and, therefore, should be included as part of the Kelly calculation. We conclude that the jury verdict for future medical expenses is not the proper barometer by which the Fund’s share of litigation costs may be measured.

Relying on our holdings in Burns and Kelly, Bissell contends that the amount of future medical expenses—having been decided by a jury and upheld by the Appellate Division as being supported by the trial evidence—cannot be deemed speculative since the benefit to the Fund can be “quantified by actuarial or other reliable means” (Burns, 9 NY3d at 215; Matter of Kelly, 60 NY2d at 139). Therefore, according to Bissell, the present value of the future medical expenses should be included as part of the Kelly calculation, entitling him to an immediate payment of the attorneys’ fees expended in obtaining that portion of the award. We disagree.

We held in Bums that “if a claimant does not receive benefits for death, total disability or schedule loss of use, the carrier’s future benefit cannot be quantified by actuarial or other reliable means” (Burns, 9 NY3d at 215 [emphasis omitted], citing Matter of McKee v Sithe Independence Power Partners, 281 AD2d 891 [4th Dept 2001] and Matter of Briggs v Kansas City Fire & Mar. Ins. Co., 121 AD2d 810, 812 [3d Dept 1986]). Similarly, future medical expenses—when considered in light of the benefit to the carrier, which is the focus of the Kelly analysis—cannot reliably be calculated in a manner similar to any of the three aforementioned classifications because it is impossible to reliably predict the future medical care the claimant will need, when the expenses from such care will accrue and how much it will cost when they do. While some of those items may reasonably be ascertained by a jury in a third-party action, there is a distinction between a nonspeculative future medical expenses award made by a jury and the benefit that the carrier receives under the Workers’ Compensation Law as a by-product of that award.

In a third-party action, the injured employee will have only one opportunity to obtain a recovery for future medical expenses, and the jury assessing the medical evidence will have the chance to make but one award for such expenses, if any. By contrast, in the workers’ compensation context it is possible to wait and see what happens, and to require the carrier to pay its share of litigation costs when that share can be accurately calculated—i.e., when the actual medical expenses that the carrier has been relieved from paying are known. Moreover, whether the claimant is entitled to medical treatment pursuant to the Workers’ Compensation Law is a determination that must be made by the Workers’ Compensation Board, and such determination is not dependent upon the jury’s verdict in the third-party action.

Although the claimant cannot include future medical expenses as part of the Kelly calculation, that does not mean that the carrier is relieved of paying its equitable share of the benefit. The trial court has the discretion to “fashion a means of apportioning litigation costs as they accrue and monitoring (e.g., by court order or stipulation of the parties) how the carrier’s payments to the claimant are made,” thereby ensuring that the carrier’s equitable share of litigation costs is based on concrete, realized benefit, while concomitantly ensuring that the claimant will not wait indefinitely for the carrier’s payment of its share (Burns, 9 NY3d at 217).

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

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

Order affirmed, with costs.

       The jury returned a verdict of $30 million against the Town, but the Appellate Division reduced that amount to $23.4 million, finding that certain of the awards were excessive. It did not alter the jury’s award for future medical expenses, holding that the jury’s verdict in that respect was supported by the trial evidence (56 AD3d 1144, 1148 [4th Dept 2008]).


author: Smith, J. Read, J. (dissenting).

text:
    [967 NE2d 656, 944 NYS2d 433]
    The People of the State of New York, Appellant, v Jeffery H. Miller, Respondent.
    Argued February 16, 2012;
    decided March 22, 2012

      POINTS OF COUNSEL

      Michael C. Green, District Attorney, Rochester (Geoffrey Kaeuper of counsel), for appellant.
    I. The notations on the verdict sheet were permissible under CPL 310.20 (2) to allow the jury to distinguish between the various homicide charges. (People v Collins, 99 NY2d 14; People v Cole, 85 NY2d 990; People v Damiano, 87 NY2d 477; People v Sotomayer, 173 AD2d 500, 79 NY2d 1029.) II. Even if the notations exceeded the bounds of CPL 310.20 (2), the error was harmless. (People v Taylor, 76 NY2d 873; People v Owens, 69 NY2d 585; People v Crimmins, 36 NY2d 230; People v Damiano, 87 NY2d 477; People v Spivey, 81 NY2d 356; People v Santi, 3 NY3d 234; People v Allen, 92 NY2d 378; People v Sotomayer, 79 NY2d 1029; People v Smart, 96 NY2d 793; People v Smith, 16 NY3d 786.) III. Even if defendant’s murder conviction had been reversible, the remaining convictions should stand as they could not have been affected by annotations that related only to the homicide counts. (People v

      Kelly, 76 NY2d 1013; People v Cohen, 50 NY2d 908; People v Damiano, 87 NY2d 477; People v Baghai-Kermani, 84 NY2d 525.)

      Timothy P. Donaher, Public Defender, Rochester (Drew R. DuBrin of counsel), for respondent.
    The Supreme Court committed reversible error by providing a verdict sheet to the jury, over defense counsel’s objection, containing unauthorized legal text. (People v Owens, 69 NY2d 585; People v Odell, 230 NY 481; People v Brooks, 70 NY2d 896; People v Damiano, 87 NY2d 477; People v Sanders, 70 NY2d 837; People v Taylor, 76 NY2d 873; People v Spivey, 81 NY2d 356; People v Sotomayer, 79 NY2d 1029; People v Collins, 99 NY2d 14; People v Rosario, 26 AD3d 206.)
   OPINION OF THE COURT

Smith, J.

We have held that it is reversible error, not subject to harmless error analysis, to provide a jury in a criminal case with a verdict sheet that contains annotations not authorized by CPL 310.20 (2) (see People v Spivey, 81 NY2d 356, 361-362 [1993]; People v Damiano, 87 NY2d 477 [1996]). The Legislature, responding to these decisions, amended the statute to expand what is permitted in the verdict sheet, but it left the basic principle unchanged: Nothing of substance can be included that the statute does not authorize. Because that rule was violated in this case, our previous holdings require that defendant’s conviction be set aside.

I

Defendant was charged with second-degree murder and several other crimes as a result of the shooting of his former girlfriend. At defendant’s request, the court submitted to the jury his claim that he acted under the influence of extreme emotional disturbance—a claim which, if accepted, would result in his conviction for first-degree manslaughter rather than murder (Penal Law § 125.25 [1] [a]; § 125.20 [2]). Extreme emotional disturbance is an affirmative defense, and the defendant has the burden of establishing it by a preponderance of the evidence (Penal Law § 125.25 [1] [a]; § 25.00 [2]).

The trial court submitted a six-page verdict sheet to the jury. The first page is the one in issue here. That page provided space for the jurors to record their verdict on the second-degree murder charge, and instructed them that if their verdict on that count was guilty they must consider the extreme emotional disturbance defense and complete the rest of the page. The form then asked: “Has the Defendant established by a preponderance of the evidence that he acted under Extreme Emotional Disturbance?” Defendant objected to this language, but the trial court refused to remove it.

The jury convicted defendant of second-degree murder and found that the extreme emotional disturbance defense had not been established. The Appellate Division reversed and ordered a new trial, holding that there was a violation of CPL 310.20 (2) and that harmless error analysis could not be applied (People v Miller, 73 AD3d 1435 [4th Dept 2010]). A Judge of this Court granted the People leave to appeal, and we now affirm.

II

CPL 310.20 says, in relevant part:

“Upon retiring to deliberate, the jurors may take with them: . . .
“2. A written list prepared by the court containing the offenses submitted to the jury by the court in its charge and the possible verdicts thereon. Whenever the court submits two or more counts charging offenses set forth in the same article of the law, the court may set forth the dates, names of complainants or specific statutory language, without defining the terms, by which the counts may be distinguished; provided, however, that the court shall instruct the jury in its charge that the sole purpose of the notations is to distinguish between the counts.”

Until 1996, the statute did not contain the final (“Whenever”) sentence; it ended with “verdicts thereon.” In several cases decided under the earlier version of the statute, we ordered a new trial where a verdict sheet had been submitted to the jury that, in addition to identifying the crimes charged, listed some of the crimes’ statutory elements (People v Nimmons, 72 NY2d 830 [1988]; People v Taylor, 76 NY2d 873 [1990]; People v Kelly, 76 NY2d 1013 [1990]; see also People v Sotomayer, 79 NY2d 1029, 1030 [1992] [reversible error to submit a verdict sheet that “recited more” than CPL 310.20 allowed]). In Spivey, we said that “unless the parties agree” the submission of such a verdict sheet “is reversible error” (81 NY2d at 361). And in Damiano we rejected, over a strong dissent, the idea that an error of this kind could “be deemed harmless”; that approach, we said, would be inconsistent with “our decisions strictly construing this provision” (87 NY2d at 484-485).

In this case, the People do not dispute that the law as it stood at the time of Spivey and Damiano would require reversal of defendant’s conviction. They argue, however, that a 1996 amendment to CPL 310.20 (2) (L 1996, ch 630, § 2) alters that conclusion in two ways: by authorizing the language that the judge submitted to the jury here, and by permitting the use of harmless error analysis. We conclude that the amendment did neither of these things.

The 1996 amendment added what is now the last sentence of CPL 310.20 (2). That sentence (later changed in a way irrelevant to this case) permits a verdict sheet to include “the dates, names of complainants or specific statutory language ... by which the counts may be distinguished.” This does alter the holding in Damiano and the cases that Damiano followed, but it does not permit what the trial court did here. The court added not “statutory language ... by which the counts may be distinguished,” but an instruction on burden of proof. Nothing in CPL 310.20 (2) can be read to authorize this.

Nor did the 1996 amendment to CPL 310.20 (2) address the issue of harmless error. It left intact the holding of Damiano that harmless error analysis cannot be applied where a verdict sheet exceeds the limitations that section 310.20 (2) imposes. The Appellate Division was therefore correct in holding that Damiano, and the cases on which Damiano was based, require reversal of defendant’s conviction.

In arguing to the contrary, the People rely not on the statutory language contained in the 1996 amendment, but on language in the memorandum by which Governor Pataki expressed his approval of that amendment (Governor’s Approval Mem, Bill Jacket, L 1996, ch 630, at 7-9, reprinted in 1996 McKinney’s Session Laws of NY, at 1907-1909). The Approval Memorandum acknowledges that “from time to time” judges might in the future place notations on verdict sheets beyond what the newly amended statute would permit (Bill Jacket, L 1996, ch 630, at 9, 1996 McKinney’s Session Laws of NY, at 1909). The memorandum adds:

“However, any such errors will no[t] be subject to the onerous automatic reversal rule of Spivey, for that rule is predicated on the complete absence of statutory authority for any verdict sheet annotations. See e.g., People v. Owens, 69 N.Y.2d 585, 591-92 (1987). As a result of the bill, there will be such authority and thus any erroneous verdict sheet notations will be subject to harmless error analysis.” (Id.)

The implicit reasoning of the Approval Memorandum—reasoning the People urge us to follow here—is this: In Owens, in the passage the Approval Memorandum cites, we held that an error in submitting portions of a written charge to the jury was not subject to harmless error analysis because “the distribution of written instructions to the jury is not expressly authorized by law” (69 NY2d at 591-592). From this it is inferred that Spivey and Damiano rejected harmless error analysis because annotated verdict sheets were also “not expressly authorized by law” (though neither Spivey nor Damiano, nor any other case involving annotated verdict sheets, says this). And, the reasoning concludes, since some verdict sheet annotations are authorized by law under the 1996 amendment, an error as to what annotations are permissible may now be deemed harmless.

We find this reasoning too attenuated to justify rejecting Spivey’s and Damiano’s holding on the harmless error issue. We recognize that, as the dissent points out, it was the Governor who proposed the 1996 amendment, and his view of what it means is relevant legislative history. But legislative history cannot supply something that is just not in the statute.

If the Legislature intended harmless error analysis to be applied in cases like this, it had only to say so. It could have used the language that it adopted in another context, to overrule our holding in People v Ranghelle (69 NY2d 56, 63 [1986]), in which we held that a failure to deliver Rosario material to defense counsel “constitutes per se error requiring that the conviction be reversed.” The Legislature responded by enacting CPL 240.75, which says that such a failure does not justify reversal “in the absence of a showing . . . that there is a reasonable possibility that the non-disclosure materially contributed to the result.”

By contrast, the legislative response to Spivey and Damiano says not a word about harmless error. We adhere to the holdings of those cases that harmless error analysis is inappropriate where the limits imposed on verdict sheet annotations by CPL 310.20 (2) have been exceeded.

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

Read, J. (dissenting).

I would uphold the conviction because the complained-of error was harmless. The majority rejects this option on the ground that the Legislature’s amendment of CPL 310.20 in 1996 “left intact” our precedents holding “that harmless error analysis cannot be applied where a verdict sheet exceeds the limitations that section 310.20 (2) imposes” (majority op at 708). On the contrary, the 1996 amendment was specifically intended to countermand these and other precedents thought to create “hyper-technical rules . . . bestow[ing] new trials on fairly convicted criminals” (Governor’s Approval Mem, Bill Jacket, L 1996, ch 630, at 9, reprinted in 1996 McKinney’s Session Laws of NY, at 1909), such as the defendant in this case. Accordingly, I respectfully dissent.

In 1996, the Governor submitted a Program Bill to the Legislature that, as he explained in his Approval Memorandum, was meant to prevent “the needless reversal of dozens of fairly obtained criminal convictions . . . occasioned by the Court of Appeals’ decisions in People v. Page, 72 N.Y.2d 69 (1988), and People v. Spivey, 81 N.Y.2d 356 (1993)” (Bill Jacket, L 1996, ch 630, at 7, 1996 McKinney’s Session Laws of NY, at 1907). The Governor’s proposed bill was introduced in the Senate “at the request of the Governor” on July 11, 1996 as Senate Bill S7929 (Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL 310.20, at 350 [2002 ed]). The Governor issued a message of necessity to the Senate, which passed the bill that same day. Senate Bill S7929 was then delivered to the Assembly, where it was substituted for Assembly Bill A11155-A; the Governor likewise issued a message of necessity to the Assembly, which also passed the bill on July 11, 1996. Senate Bill S7929 was then returned to the Senate, which delivered it to the Governor on September 3, 1996. The Governor signed the bill on September 4, 1996, which thereby became chapter 630 of the Laws of 1996. He simultaneously issued a detailed Approval Memorandum.

Section 1 of chapter 630 amended CPL 270.35 to create a bright-line rule that essentially circumvented Page’s strictures on the discharge of sworn jurors and their replacement with alternates (see People v Jeanty, 94 NY2d 507, 513-516 [2000] [discussing legislative history of section 1 of the Laws of 1996, chapter 630]). Section 2 amended CPL 310.20 by granting trial judges express authority to place certain kinds of explanatory information on verdict sheets. As the Governor explained, section 2 was intended to prevent the problems created

“[u]nder a line of cases culminating in People v. Spivey, [whereby] trial judges no longer [had] the authority they long enjoyed to enhance the ability of deliberating juries to distinguish between seemingly identical or substantially similar counts by annotating verdict sheets with distinguishing, explanatory phrases . . .
“For decades, until the Court of Appeals issued a series of decisions culminating in People v. Spivey, trial judges helped juries by putting brief explanatory notations on verdict sheets to distinguish otherwise identical counts.
“Because of the absence of express statutory authority for such notations, the Spivey line of cases holds that trial judges cannot put them on verdict sheets, and that harmless error analysis cannot be used to save convictions obtained in cases in which the verdict sheet contained such innocuous but helpful notations. As a result, many fairly tried and convicted defendants have had their convictions reversed on appeal.
“The amendments made by the bill to subdivision 2 of section 310.20 of the [CPL] will restore trial judges’ authority to annotate verdict sheets, facilitate an orderly and intelligent deliberative process and prevent needless reversals of convictions. To be sure, trial judges from time to time may place on verdict sheets distinguishing notations that do not fit within the technical terms of the bill. However, any such errors will no[t] be subject to the onerous automatic reversal rule of Spivey, for that rule is predicated on the complete absence of statutory authority for any verdict sheet annotations. See e.g., People v. Owens, 69 N.Y.2d 585, 591-92 (1987). As a result of the bill, there will be such authority and thus any erroneous verdict sheet notations will be subject to harmless error analysis, consistent with subdivision 1 of section 470.05 of the [CPL]” (Governor’s Approval Mem, Bill Jacket, L 1996, ch 630, at 7, 8-9, 1996 McKinney’s Session Laws of NY, at 1908-1909 [emphasis added]).

The majority dismisses the Approval Memorandum’s reasoning as “too attenuated to justify rejecting” the holdings of Spivey and People v Damiano (87 NY2d 477 [1996]) “on the harmless error issue” (majority op at 709), as though the Governor’s statements were some species of post-enactment “spin” or propaganda. But the Governor was explaining his bill, drafted by his lawyers at his direction to carry out his policy. And the Legislature agreed with him: both houses enacted the Governor’s Program Bill, without amendment, pursuant to messages of necessity, the same day it was introduced. Under these circumstances, the Governor’s view of section 2, which is perfectly consonant with the amendment’s language, should be dispositive.

The majority also comments that the Legislature might have used language similar to “the language that it adopted in another context, to overrule our holding in People v Ranghelle (69 NY2d 56, 63 [1986])” by saying that “a failure to deliver Rosario material to defense counsel . . . does not justify reversal ‘in the absence of a showing . . . that there is a reasonable possibility that the non-disclosure materially contributed to the result’ ” (majority op at 709, quoting CPL 240.75). Indeed the Legislature might have done this, but only if it wanted a rule other than CPL 470.05, the general rule for harmless error analysis, to govern annotation errors on verdict sheets.

Here, the evidence of defendant’s guilt was overwhelming, a conclusion with which I doubt the majority disagrees. Defendant was indicted for murder and other, lesser charges for the shootings of his estranged girlfriend and her ex-boyfriend, the father of her child, as they sat in a car parked outside her home. She died as a consequence, while her ex-boyfriend sustained serious injuries. He testified that defendant, whom he knew, was the shooter, and his account was corroborated by a neighbor who saw and heard the shooting (although she could not identify defendant). In the days following the crime, defendant made many incriminating statements to his friends and family. And while the absence of expert testimony was not fatal to his defense of extreme emotional disturbance, defendant did not testify either. As a result, there was essentially no proof that he suffered from a mental infirmity manifested by a loss of self-control. In other words, it was, to say the least, generous of the trial judge to allow the jury to consider the defense on these facts in the first place. As to intent, defendant fired multiple shots into the occupied car at point-blank range.

In sum, the evidence to support extreme emotional disturbance or a finding that defendant merely intended to seriously injure his victims was so weak that the verdict sheet annotations—which, in fact, supplied the jury with correct statements of the law—cannot have affected the outcome. A decision to set aside a conviction under such circumstances is exactly the kind of ‘‘hyper-technical” result that the Legislature sought to foreclose when it enacted chapter 630 of the Laws of 1996.

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

Order affirmed.


author:
Jones, J.
      Pigott, J. (dissenting).

text:
    [968 NE2d 943, 945 NYS2d 589]
    In the Matter of Jeffrey Baker, Respondent, v Poughkeepsie City School District et al., Appellants.
    Argued February 15, 2012;
    decided March 22, 2012

      POINTS OF COUNSEL

      Shaw, Perelson, May & Lambert, LLP, Poughkeepsie (Beth L. Sims and Mark C. Rushfield of counsel), for appellants.
    Neither the testimony of Board Member Ellen Staino nor that of Board Member Raymond Duncan required that either be disqualified from voting to adopt the hearing officer’s findings and termination recommendation and the lower court erred in applying a per se testimonial disqualification rule as a basis for vacating the Board of Education’s decision to adopt the hearing officer’s recommendations. (Matter of Sassone v New York State Thruway Auth., 171 AD2d 308; Matter of Elliott v Arlington Cent. School Dist., 143 AD2d 662; Duke v North Tex. State Univ., 469 F2d 829; Matter of Young v Board of Educ. of Baldwin Union Free School Dist., 100 AD2d 515; Matter of Wilson v City of White Plains, 277 AD2d 244; Matter of Donlon v Mills, 260 AD2d 971; Matter of Ernst v Saratoga County, 234 AD2d 764; Matter of Reed v Town of Huntington, 186 AD2d 745; Matter of Major v Board of Regents of Univ. of State of N.Y., 160 AD2d 1041; Matter of 1616 Second Ave. Rest, v New York State Liq. Auth., 75 NY2d 158.)

      Drita Nicaj, LaGrangeville, and Law Office of Jonathan Lovett, Hawthorne, for respondent.
    Since Ellen Staino and Raymond Duncan testified during the disciplinary hearing, both were required to recuse themselves; as neither did so, the Appellate Division properly annulled the Board of Education’s determination. (Matter of Gomez v Stout, 13 NY3d 182; Matter of Simpson v Wolansky, 38 NY2d 391; Matter of Warder v Board of Regents of Univ. of State of N.Y., 53 NY2d 186, 454 US 1125; Matter of Heisler v Scappaticci, 81 AD3d 954; Matter of Canna v Town of Amherst, 55 AD3d 1269; Matter of Marandino v Westchester Country Club, Inc., 33 AD3d 800; Matter of Ferraro v State of NY. Racing & Wagering Bd., Div. of Thoroughbred, 284 AD2d 949; Matter of Schindlar v Incorporated Vil. of Lloyd Harbor, 261 AD2d 626; Matter of Donlon v Mills, 260 AD2d 971; Matter of 1616 Second Ave. Rest, v New York State Liq. Auth., 75 NY2d 158.)

      Jay Worona, Latham, and Patricia H. Gould, for New York State School Boards Association, Inc., amicus curiae.
    I. The decision of the court below erroneously creates a per se disqualification that prevents school board members called to testify in a school employee’s disciplinary hearing from exercising their statutory responsibility over staff disciplinary matters. (Matter of Cook v Griffin, 47 AD2d 23; Matter of Melendez v Board of Educ. of Yonkers City School Dist., 34 AD3d 814; Matter of McComb v Reasoner, 29 AD3d 795; Matter of Stafford v Board of Educ. of Mohonasen Cent. School Dist., 61 AD3d 1259; Matter of Payton v Buffalo City School Dist., 299 AD2d 825; Matter of Wiggins v Board of Educ. of City of N.Y, 60 NY2d 385; Matter of Gomez v Stout, 13 NY3d 182; Matter of Morgenthau v Cooke, 56 NY2d 24; Matter of Martin v Platt, 191 AD2d 758, 82 NY2d 652; Vesely v Town of New Windsor, 90 AD2d 770.) II. The decision of the court below is counter to the public policy of this state to impose on school boards the duty and responsibility for disciplining and terminating school employees who are incompetent or engage in misconduct. (Matter of New York State Assn. of Criminal Defense Lawyers v Kaye, 95 NY2d 556; Oakes v Muka, 56 AD3d 1057.)
   OPINION OF THE COURT

Jones, J.

In this appeal, we are called upon to determine whether persons who have testified in a Civil Service Law § 75 disciplinary hearing are required to disqualify themselves from subsequently acting upon any of the charges related to that hearing. We hold that, because the testimony of the testifying witnesses, concerning the charges levied pursuant to section 75, rendered them personally involved in the disciplinary process, disqualification is necessary.

In July 2007, pursuant to Civil Service Law § 75, the Superintendent of Schools of the Poughkeepsie City School District preferred eight charges of “misconduct and/or incompetence” against petitioner Jeffrey Baker, then Business Manager of respondent Poughkeepsie City School District. The charges alleged, among other things, that petitioner (1) made errors in calculating the former superintendent’s gross pay and producing a preliminary budget document; (2) failed to make a required non-elective employer contribution and secure a disability insurance policy; and (3) failed to follow certain directives and competitive bidding procedures. Charge I specifically stated that Mr. Baker failed to follow prior directives from his supervisor when he spoke with Ellen Staino, the Board of Education President of the Poughkeepsie City School District, “in an attempt to gain her support for his candidate of choice for District Treasurer and for a restructuring of Business Office staff positions.”

The Board of Education appointed a hearing officer to preside over the disciplinary action. During the hearing, Ellen Staino and another Board Member, Raymond Duncan, testified. The School District called Ms. Staino to testify in support of the first charge. Mr. Duncan, who discovered an error made by the petitioner in calculating the District’s budget, testified about his personal knowledge concerning certain documents at issue during the hearing and information provided to him by petitioner’s supervisor.

The hearing officer reported to the Board his findings and recommended that Mr. Baker be found guilty of the eight charges and that his services be terminated. The Board, including Ms. Staino and Mr. Duncan, adopted the findings and recommendations, and terminated Mr. Baker’s employment. Mr. Baker, challenging the Board’s determination, commenced this CPLR article 78 proceeding.

Upon transfer to the Appellate Division, the court “grant[ed] the petition, annulled] the determination, and remitted] the matter to the Board, excluding the members of the Board who testified at the disciplinary hearing, for a review of the findings and recommendations of the hearing officer” (73 AD3d 916, 917 [2010]). This Court granted respondents School District and Board of Education leave to appeal from the Appellate Division order (16 NY3d 706 [2011]), and we now affirm.

Although “[i]nvolvement in the disciplinary process does not automatically require recusal,” we recognize that individuals “who are personally or extensively involved in the disciplinary process should disqualify themselves from reviewing the recommendations of a Hearing Officer and from acting on the charges” (Matter of Ernst v Saratoga County, 234 AD2d 764, 767 [3d Dept 1996] [citations omitted]). Thus, where a witness is testifying during a disciplinary hearing concerning charges levied against an individual, disqualifying himself or herself from reviewing the recommendations of the hearing officer and rendering a final determination is appropriate (see Matter of Nicoletti v Meyer, 42 AD3d 722 [3d Dept 2007]; see also Matter of Lowy v Carter, 210 AD2d 408, 409 [2d Dept 1994] [a testifying witness reviewing recommendations and acting upon the charges permits that person to pass upon his or her “own credibility as a witness”]; Matter of Hicks v Fortier, 117 AD2d 930 [3d Dept 1986]).

Not all testimony will require disqualification. It is only required where the testimony of the official directly supports or negates the establishment of the charges preferred. Such testimony renders the decision-maker personally involved in the disciplinary process and partial. Nevertheless, we observe that disqualification, in a section 75 proceeding, is inappropriate where such person is necessary to effectuate a decision (see Matter of McComb v Reasoner, 29 AD3d 795, 800 [2d Dept 2006] [the rule of necessity]; see generally Matter of General Motors Corp.—Delco Prods. Div. v Rosa, 82 NY2d 183 [1993]).

Here, Ms. Staino was extensively involved in the disciplinary process given that petitioner’s communication with her was the basis for charge I. Moreover, she was called to testify for the purpose of sustaining that charge. Mr. Duncan brought to the attention of petitioner’s supervisor a discrepancy in a budget prepared by petitioner, which subsequently was included in the charges preferred against petitioner. Likewise, Mr. Duncan’s testimony concerning his knowledge of relevant documents that were at issue and certain communications with petitioner’s supervisor regarding petitioner’s performance demonstrated his personal involvement in the disciplinary process. Moreover, neither of their votes were needed to take disciplinary action. Thus, the Appellate Division properly granted the petition, annulling the determination and remitting the matter to be decided without the testifying board members.

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

Pigott, J. (dissenting).

Because in my view Ms. Staino and Mr. Duncan were not required to disqualify themselves from rendering a determination on the hearing officer’s recommendation, I respectfully dissent. Unlike the Appellate Division, the majority does not create a per se rule of disqualification, but given the breadth of its determination in light of the facts of this case, it may as well have done so, because there was no reason for the disqualification of these individuals given the substance of their respective testimony.

It is undisputed that Ms. Staino testified at the hearing relative to one of the pertinent counts, namely, whether Mr. Baker

“failed to follow the prior verbal and/or written directives of his supervisor [School Superintendent] Dr. Laval Wilson when he spoke with Board of Education President, Ellen Staino, in an attempt to gain her support for his candidate of choice for District Treasurer and for a restructuring of Business Office staff positions.”

The majority correctly states that Mr. Baker’s communication with Ms. Staino was the basis for that charge (majority op at 718), but neglects the salient fact that Mr. Baker conceded at the hearing that Ms. Staino’s testimony that formed the basis for that charge was true. Thus, unlike the situation in Matter of Lowy v Carter (210 AD2d 408 [2d Dept 1994]), Ms. Staino’s credibility was never in doubt.

Nor can it reasonably be said that Ms. Staino was “personally or extensively involved” in the disciplinary process such that she should have disqualified herself from reviewing the hearing officer’s recommendations (majority op at 717-718). The cases cited by the majority for that proposition involve situations where the individual testifying against the employee either actually preferred the charges (see Matter of Ernst v Saratoga County, 234 AD2d 764 [3d Dept 1996] [witness preferred the charges, appointed the hearing officer and voted to sustain hearing officer’s findings of fact and recommendation]; Matter of Lowy, 210 AD2d at 409 [witness preferred charges and testified]; Matter of Hicks v Fortier, 117 AD2d 930 [3d Dept 1986] [witness preferred the charges, testified at the hearing and rendered the final determination]) or issued the final determination finding the employee guilty of the misconduct (see Matter of Nicoletti v Meyer, 42 AD3d 722, 722 [3d Dept 2007] [supervisor and wife testified against employee at hearing and, after hearing officer found employee guilty of three counts of misconduct, the supervisor “issued a final determination finding (employee) guilty of four charges of misconduct and terminat(ed) his employment”] [emphasis added]).

Here, there was no such “personal and extensive involvement” on the part of Ms. Staino. The Superintendent, not Ms. Staino, preferred the charges against Mr. Baker, and Ms. Staino was not the sole arbiter of whether the hearing officer’s determination should have been confirmed, nor was her testimony at all contradicted by Mr. Baker.

Less problematic is the testimony of Mr. Duncan, who was called as a witness by Mr. Baker. As the majority points out, Mr. Duncan did in fact uncover the budgetary errors that led to certain of the charges (majority op at 718), i.e., the claim that Mr. Baker “produced a preliminary budget document with significant errors.” However, the majority ignores the fact that Mr. Duncan did not offer any testimony on that issue, nor does it mention that Mr. Baker conceded at the hearing that the preliminary budget did, in fact, contain significant errors which were carried through to successive budgets. Mr. Duncan’s testimony relative to the budget documents was limited to the fact that, as a board member, he often reviewed such documents in the ordinary course of his duties. So there was no reason for his disqualification, either, since Mr. Duncan’s credibility was not an issue—there was no dispute that there were budgetary errors—and no indication that he was otherwise biased.

In response to the Appellate Division’s directive that the matter be remitted for a decision without the participation of Ms. Staino and Mr. Duncan, the school board did that and voted to terminate Mr. Baker for cause. All our decision will mean is, notwithstanding the fact that Mr. Baker never challenged the testimony proffered against him, Mr. Baker will nonetheless recover back pay to which, by all accounts, he is not entitled.

But the majority’s opinion today has consequences that extend beyond this case. There is nothing to prevent industrious attorneys for employer and employee alike from subpoenaing pertinent members of the governing boards to proffer testimony on matters tangential to the issues, thereby obtaining disqualification of members who they expect to vote counter to the interests of their clients, or at the very least, engaging in a contest of this nature, buying valuable back pay considerations as the matter is litigated—precisely what Civil Service Law § 75 was designed to avoid. Therefore, I would reverse the order of the Appellate Division.

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

Order affirmed, with costs.