author: Read, J.

text:
    [987 NE2d 276, 964 NYS2d 499]
    The People of the State of New York, Appellant-Respondent, v Gerard Ippolito, Also Known as Gerald Ippolito, Respondent-Appellant.
    Argued February 6, 2013;
    decided April 2, 2013

      POINTS OF COUNSEL

      Sandra Doorley, District Attorney, Rochester (Geoffrey A. Kaeuper and Leslie E. Swift of counsel), for appellant-respondent.
    A reversal is required to reinstate defendant’s criminal possession of a forged instrument convictions which were supported by legally sufficient evidence that the subject checks were forged when they misrepresented the true identity of the ostensible maker by using the victim’s unauthorized signature and also concealing the power of attorney relationship. (People v Clyde, 18 NY3d 145; People v Bleakley, 69 NY2d 490; People v Cabey, 85 NY2d 417; People v Contes, 60 NY2d 620; People v Foster, 64 NY2d 1144, 474 US 857; People v Malizia, 62 NY2d 755; People v Hines, 97 NY2d 56; People v Franov, 17 NY3d 58; People v Shanley, 196 NY 574; Matter of Ferrara, 7 NY3d 244.)

      Timothy P. Donaher, Public Defender, Rochester (James Eckert of counsel), for respondent-appellant.
    I. The Appellate Division properly dismissed those counts convicting Mr. Ippolito of criminal possession of a forged instrument where he possessed an unlimited power of attorney from the complainant, signed her name, then possessed those instruments. The People’s only argument in opposition to the defense’s trial order of dismissal motion—that it was “customary” to add the letters “POA” to such a signature—was an inadequate basis upon which to affix criminal liability to the performance of acts which were expressly authorized by that power of attorney. (People v Miller, 70 NY2d 903; People v Contes, 60 NY2d 620; Burton v PNC Bank, N.A., 12 AD3d 264; People v Ditta, 52 NY2d 657; People v P.J. Video, 68 NY2d 296; People v Cannarozzo, 62 AD2d 503; People v Shanley, 132 App Div 821; People v Cunningham, 2 NY3d 593; People v Cullen, 50 NY2d 168; People v Williams, 84 NY2d 925.) II. The trial court committed reversible error by answering a juror question from the jury box, without giving Mr. Ippolito an opportunity to give input into the answer before the answer was provided to the jury, after indicating that it was fully aware that it was following an improper procedure. (People v O’Rama, 78 NY2d 270; People v Bonaparte, 78 NY2d 26; People v Malloy, 55 NY2d 296; People v Torres, 227 AD2d 242; People v Agosto, 73 NY2d 963; People v Lykes, 81 NY2d 767; People v Damiano, 87 NY2d 477; People v Kisoon, 8 NY3d 129; People v Cook, 85 NY2d 928; People v Collins, 99 NY2d 14.)
   OPINION OF THE COURT

Read, J.

At some point in 2003, Katherine M. L., who was in her mid-80s, was steered to defendant Gerard Ippolito, an accountant, to help her deal with delinquent property taxes on her Rochester residence. On June 27th of that year, she executed a statutory short-form durable general power of attorney (the POA), which granted Ippolito unlimited powers to act in her “NAME, PLACE AND STEAD in any way which [she herself] could do, if [she] were personally present... to the extent that [she was] permitted by law to act through an agent” with respect to a long list of subjects, including “real estate transactions,” “banking transactions,” “tax matters,” and “all other matters.” The POA was recorded at the Monroe County Clerk’s Office on July 9, 2003.

Shortly after securing the POA, Ippolito set up a business checking account at HSBC Bank denominated “Eastside Professional Services[] Special Escrow Account for Katherine M. [L.],” under his sole control, into which he funneled Katherine M. L.’s income from Social Security, a pension, and payments from two trusts. By the time Katherine M. L. revoked the POA on July 28, 2006, Ippolito had allegedly stolen at least $696,000 from her. Additionally, he did not pay all required federal and state taxes on Katherine M. L.’s income while he was managing her affairs, which resulted in a tax liability of roughly $500,000. Ippolito was accused of carrying out his thefts principally by making out checks to Katherine M. L. or obtaining bank checks made out to her from the HSBC account, endorsing these checks in her name, and depositing the proceeds into accounts he maintained at another bank. Ippolito did not indicate on the checks that he, rather than Katherine M. L., was the actual signer of her name.

The grand jury handed down a 46-count indictment charging Ippolito with one count of second-degree grand larceny, a class C felony (Penal Law § 155.40 [1] [the value of the property alleged to have been stolen exceeds $50,000]), and 45 counts of second-degree criminal possession of a forged instrument (CPFI), a class D felony (Penal Law § 170.25), 42 of which related to the checks that he endorsed in Katherine M. L.’s name, and three of which involved other instruments (a certificate of incorporation and two specific powers of attorney). At Ippolito’s jury trial in September 2007, the People presented evidence that the customary practice when signing a principal’s name pursuant to a power of attorney was for the agent to sign his own name as well, along with the letters “POA”; they argued that Ippolito defrauded the bank by neglecting to do this. At the close of the People’s case and again at the close of proof, Ippolito’s attorney unsuccessfully sought a trial order of dismissal. He maintained that because the POA vested Ippolito with the legal right to sign Katherine M. L.’s name on the checks, his act in doing so was not forgery.

Just as the judge began to charge the jury, the following exchange occurred:

“TRIAL JUROR: Can I ask a question?
“THE COURT: You’re not supposed to, but go ahead.
“TRIAL JUROR: I just want to know if we would have a copy of the law in the room.
“THE COURT: Good question. The answer to that is no. I’ll read it to you as many times as you request, but you cannot get a copy to go back there.”

The jury found Ippolito guilty on all counts of the indictment save two: count 16, which related to a check Ippolito endorsed by signing both “Eastside Prof Services Escrow Acct” and Katherine M. L.’s name; and count 27, which related to a check he endorsed by signing his own name in addition to Katherine M. L.’s. On October 31, 2007, the judge sentenced Ippolito as a second felony offender to 14V2 to 29 years in prison, and ordered him to pay $696,595.14 in restitution.

On appeal, Ippolito made three arguments: that the proof was legally insufficient to support his convictions of the 40 check-related crimes; that the judge committed reversible error by answering the juror’s question without consulting the parties; and that the judge was required to hold a hearing with respect to the amount of restitution. By decision dated November 10, 2011, the Appellate Division, with one Justice dissenting, reversed Ippolito’s 40 check-related CPFI convictions and dismissed those counts of the indictment; vacated the amount of restitution ordered and remitted for a hearing to determine the proper sum; and otherwise affirmed (89 AD3d 1369 [4th Dept 2011]).

The court concluded that the evidence was not legally sufficient to convict Ippolito of the 40 check-related crimes because

“the ostensible maker of the checks, i.e., the victim, authorized the actual maker of the checks, i.e., defendant, to make the checks, ‘which purport[ ] to be [the] authentic creation[s]’ of the victim. Thus, it cannot be said that the checks in question were falsely made, although ‘recitals in the instrument may be false’ or defendant may have exceeded the scope of authority delegated to him by the victim” (id. at 1369-1370 [citations omitted]).

Citing Penal Law § 60.27 (2), the court further ruled that the judge was required to conduct a hearing to determine the amount of restitution upon Ippolito’s request and “irrespective of the level of evidence in the record” (id. at 1370 [internal quotation marks omitted]); and considered the alleged error in responding to the juror’s question to be unpreserved and, in any event, meritless.

The dissenting Justice disagreed only with the majority’s reversal of the 40 check-related CPFI convictions. In his view, the checks were forgeries because Katherine M. L. testified that she did not “give [Ippolito] permission” to sign her name on the individual checks, which “bore no indication that [he] was acting in a representative capacity or under the authority of a power of attorney”; and the jury “obviously concluded” as a factual matter “that [Ippolito] did not act under the [POA]— regardless of any authority that it may have conferred upon him” (id. at 1370-1371 [Garni, J., dissenting]).

The dissenting Justice granted the People’s motion for leave to appeal (18 NY3d 929 [2012]); thereafter, a Judge of this Court granted Ippolito permission to appeal as well (18 NY3d 925 [2012]). We now affirm.

L

A person is guilty of second-degree CPFI “when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he utters or possesses any forged instrument” (Penal Law § 170.25); and a written instrument, such as a check, is “forged” when “falsely made, completed or altered” (Penal Law § 170.00 [7]). A “falsely made” written instrument “purports to be an authentic creation of its ostensible maker or drawer, but... is not such either because the ostensible maker or drawer is fictitious or because, if real, he did not authorize the making or drawing thereof’ (Penal Law § 170.00 [4] [emphasis added]).

The People assert that “[e]ach time [Ippolito] signed [Katherine M. L.’s] name, without indicating the POA relationship, and offered the check, he presented an instrument which purported to be what it was not, the personal act of [Katherine M. L.].” They liken this case (as did the dissent below) to People v Shanley (132 App Div 821 [1st Dept 1909], affd on op below 196 NY 574 [1909]), stating that in both instances “an agent sign[ed] the principal’s name without any POA notation thereby offering a false instrument as being the personal act and signature of the principal, and in turn obtaining proceeds to benefit himself.”

In Shanley, the defendant, an attorney, was convicted of first-degree forgery (former Penal Law § 884) in signing and uttering as true an instrument satisfying a mortgage on which he admittedly signed the name of his client, Miss Julia A. Smith, and to which an acknowledgment was annexed. He received $25,000 in discharge of the mortgage, and spent it for his own purposes. When the fraud was discovered, the defendant fled the state. He subsequently surrendered under an agreement that he would not be indicted for grand larceny.

According to the trial testimony of the commissioner of deeds, who took the acknowledgment, the defendant introduced him to “a lady, Miss Smith” (id. at 823). Although the commissioner “had. never met that woman before,” and she did not sign the satisfaction piece in his presence, “she acknowledged it” (id. at 823-824). He added that this “Miss Julia A. Smith” was not the same person as the Miss Julia A. Smith whom he later met at the district attorney’s office, and who was present in the courtroom. The defendant disputed this. He testified that he reached Miss Smith on the telephone and asked her to tell the commissioner, who was in his office at the time, that it was “all right” for him to have signed her name on the mortgage satisfaction; and that after speaking with Miss Smith over the telephone, the commissioner certified that she had executed this document (id. at 823). Miss Smith denied that any such conversation took place.

As the Appellate Division recounted, the defendant

“having admitted that he signed the name Julia A. Smith to the satisfaction of the mortgage, and having attempted to justify the acknowledgment by his story of a telephonic acknowledgment to [the commissioner, then sought] to justify this transaction upon the ground that he was acting under a power of attorney” (id. at 824).

Miss Smith had indeed given the defendant a power of attorney, which he contended was sufficiently broad so as to permit him to sign her name to the satisfaction of mortgage and to procure the acknowledgment.

The court explained that

“[w]hatever authority may have been conferred by that power of attorney[J it certainly did not authorize the execution and acknowledgment of the instrument set up in the indictment. That instrument, upon its face, was a forgery; upon its face it purported to bear the signature of Julia A. Smith, and that she had personally acknowledged it before the commissioner of deeds. As it is conceded that she did not sign it, and as the evidence establishes that she did not appear personally before the commissioner of deeds and acknowledge the same, the People established in the first instance that it was a forged instrument. The burden of explanation then fell upon the defendant, who undertook to explain dehors the instrument that it had been executed by authority, and, therefore, he was not guilty of forgery” (id. at 829 [emphasis added]).

The Appellate Division, in affirming Shanley’s conviction, considered his agency defense unavailing because

“as [a] matter of law . . . [the] power of attorney was not authority for the execution and delivery of the satisfaction of the mortgage and the acknowledgment thereto .... The whole instrument was a forgery; it purported to be what it was not, viz., the personal act of Julia A. Smith in both signing and appearing personally before the commissioner of deeds and acknowledging her signature” (id. at 830 [emphasis added]).

Although the People characterize Shanley as a “critical Court of Appeals case” that is “right on point both factually and legally,” this is simply not so. Shanley is factually very different from this case, involving, as it does, the execution of an acknowledgment falsely verifying that Miss Smith personally signed the satisfaction of mortgage. Additionally, there was some dispute as to the scope of the power of attorney, which is not the situation here. And further, when Shanley was decided New York’s Penal Law did not define “false making,” whereas the revised Penal Law, adopted in 1965, clarifies that this term does not encompass documents whose making or drawing is authorized (see Penal Law § 170.00 [4]).

Finally, no matter what, if any, potency Shanley may retain as precedent, it does not, as the People claim, endorse the proposition that a written instrument is falsely made any time an agent signs the principal’s name without indicating the principal-agent relationship. Precedent predating 1909 held that

“while it is the preferable way for an agent in executing any instrument in the name of the principal to add his own name as agent, so that the instrument may show by what person the signature was written, still in law the writing of the name of the principal alone is sufficient” (Youngs v Perry, 42 App Div 247, 248 [2d Dept 1899] [emphasis added]; see also 1 Williston on Contracts § 296 at 564 [1920] [“(T)hough it is desirable for the agent to indicate that the principal’s name has been signed by the agent, and not by the principal personally, it is legally a sufficient execution to bind the principal if the agent, without disclosing in the body of the instrument or in the signature that the principal was not acting personally signs the name of the principal”]; id. at 564 n 73 [commenting that the rule stated in Wood v Goodridge (60 Mass 117 [1850]), “that it should appear on the face of the instrument that it was executed by an agent and by virtue of authority delegated to him, cannot be supported”]).

In 2008, though, the legislature amended the General Obligations Law to mandate that agents engaging in a transaction where a handwritten signature is required must sign in a way that discloses the principal-agent relationship (see L 2008, ch 644; General Obligations Law § 5-1507 [1] [a]; see also General Obligations Law § 5-1507 [1] [b] [third parties do not incur any liability for accepting a handwritten signature that does not conform to the statutory requirements]).

Here, the POA (until revoked) vested Ippolito with unlimited power to sign Katherine M. L.’s name on written instruments. As a result, the checks cannot have been forgeries (see People v Cannarozzo, 62 AD2d 503, 504 [4th Dept 1978, Simons, J.], affd 48 NY2d 687 [1979] [“(A) person does not ‘falsely make’ an instrument when he is authorized to execute it”]). Put another way, where the ostensible maker or drawer of a written instrument is a real person, a signature is not forged unless unauthorized (see Penal Law § 170.00 [4]). Since Ippolito was empowered to sign Katherine M. L.’s name at the times when he drew or endorsed the 40 checks at issue on this appeal, the People’s proof was legally insufficient to convict him of CPFI.

IL

Ippolito disputes his convictions for grand larceny and the three non-check-related counts of CPFI on the ground that the trial judge committed reversible error when he answered a juror’s question without first soliciting comments from the parties. As related earlier, just as the judge began to charge the jury a juror spoke up, asking whether jurors “would have a copy of the law” in the jury room, and the judge immediately answered that he would not permit this. Counsel must be afforded an opportunity to suggest a meaningful response to any jury question arising during deliberations (see People v O’Rama, 78 NY2d 270 [1991]; see also CPL 310.30 [a deliberating jury may request additional information or instruction “with respect to any . . . matter pertinent to (its) consideration of the case . . . (and) the court . . . after notice to both the people and counsel for the defendant . . . must give such requested information or instruction as (it) deems proper”]). Whether or not section 310.30, as interpreted in O’Rama, applies in this situation, where a juror voices a question in open court before deliberations begin, Ippolito’s attorney was required to make a timely objection. He was present when the question was asked and answered, yet failed to object at that time, when the judge could have easily cured the claimed error (see People v Ramirez, 15 NY3d 824, 826 [2010]).

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

Chief Judge Lippman and Judges Graffeo, Smith and Pigott concur; Judge Rivera taking no part.

Order affirmed.

      . “Eastside Professional Services” was the corporate name of Ippolito’s business.

      . Because of the way in which the judge directed the sentences to run, dismissal of these 40 counts did not alter the minimum or maximum term of the indeterminate sentence imposed on Ippolito.

      . On this appeal, the People do not contest the Appellate Division’s ruling that a hearing must be conducted to determine the amount of restitution.

      . Former section 884 provided, as relevant to Shanley, that
      “[a] person [was] guilty of forgery in the first degree who with intent to defraud, forges:
      “1. A will or codicil of real or personal property, or the attestation thereof, or a deed or other instrument, being or purporting to be the act of another, by which any right or interest in property is or purports to be transferred, conveyed, or in any way charged or affected; or,
      “2. A certificate of the acknowledgment or proof of a will, codicil, deed, or other instrument, which by law may be recorded or given in evidence when duly proved or acknowledged, made or purporting to have been made by a court or officer duly authorized to make such a certificate^]”
      Former Penal Law § 880, in turn, defined
      “[t]he expressions ‘forge,’ ‘forged[,]’ and ‘forging,’ as used in [article 84 (Forgery)], [to] include false making, counterfeiting and the alteration, erasure, or obliteration of a genuine instrument, in whole or in part, the false making or counterfeiting of the signature, of a party or witness, and the placing or connecting together with intent to defraud different parts of several genuine instruments.”


source: Caselaw Access Project

author: Rivera, J.

license: Public Domain

text:
    [987 NE2d 282, 964 NYS2d 505]
    The People of the State of New York, Appellant, v Anthony Griffin, Respondent.
    Argued February 13, 2013;
    decided April 2, 2013

      POINTS OF COUNSEL

      Cyrus R. Vance, Jr., District Attorney, New York City (Sheila O’Shea and Alan Gadlin of counsel), for appellant.
    By pleading guilty, defendant forfeited his claim that the trial judge improperly relieved assigned counsel. In any event, the trial judge acted within her discretion in relieving the Legal Aid Society when it insisted that it should be relieved if it was not granted an adjournment the court found unwarranted. (People v Hansen, 95 NY2d 227; People v Taylor, 65 NY2d 1; Blackledge v Perry, 417 US 21; People v Petgen, 55 NY2d 529; United States v Bohn, 956 F2d 208; Smith v Estelle, 711 F2d 677; Fields v Attorney Gen. of State of Md., 956 F2d 1290; United States v Moussaoui, 591 F3d 263; Strickland v Washington, 466 US 668; People v Phillips, 56 AD3d 1163.)

      Steven Banks, Legal Aid Society, New York City (Harold V. Ferguson, Jr., of counsel), for respondent.
    I. This appeal must be dismissed because the Appellate Division’s decision was not based on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal. (People v Caban, 14 NY3d 369; People v Baumann & Sons Buses, Inc., 6 NY3d 404; People v Gonzalez, 68 NY2d 995; People v Hinton, 81 NY2d 867; People v Schepis, 86 NY2d 856; People v Johnson, 47 NY2d 124; People v Washington, 71 NY2d 916; People v Butler, 58 NY2d 1056; People v Dercole, 52 NY2d 956; People v Tineo, 64 NY2d 531.) II. The Appellate Division correctly determined that Justice Scherer violated respondent’s constitutional right to counsel of choice when she unjustifiably relieved the Legal Aid Society as respondent’s assigned counsel. (People v Stith, 69 NY2d 313; People v Sawyer, 57 NY2d 12; People v Knowles, 88 NY2d 763; People v Childs, 247 AD2d 319; People v Arroyave, 49 NY2d 264; People v Espinal, 10 AD3d 326; People v Hansen, 95 NY2d 227; United States v Smith, 618 F3d 657; United States v Sanchez Guerrero, 546 F3d 328.) III. The Appellate Division erred when it summarily rejected respondent’s issue concerning the summary denial of his pro se motion to withdraw his guilty plea. (People v Serrano, 15 NY2d 304; People v Tinsley, 35 NY2d 926; People v Frederick, 45 NY2d 520; People v Brown, 14 NY3d 113; People v Harris, 61 NY2d 9; People v Moissett, 76 NY2d 909; People v Nixon, 21 NY2d 338; People v Hill, 204 AD2d 1015; People v Leslie, 98 AD2d 977; People v Alicea, 61 NY2d 23.)
   OPINION OF THE COURT

Rivera, J.

The People appeal an order of the Appellate Division concluding that the trial court improperly discharged defendant’s counsel. The People argue that defendant’s claim is forfeited by his guilty plea, and that the trial court properly invoked its discretion when it removed the Legal Aid Society. We reject the People’s arguments, and affirm.

The five-month period after defendant’s February 2006 arraignment on charges of attempted robbery (Penal Law §§ 110.00, 160.15 [4]) and robbery (Penal Law § 160.15 [4]) was marked by multiple adjournments, over the course of 15 appearances attended by a total of 10 different assistant district attorneys (ADAs), and defendant’s assigned counsel, the Legal Aid Society. The case was adjourned for numerous reasons ranging from defendant’s request to file pretrial motions, to the People’s application for additional time to interview witnesses who were material to the prosecution’s direct case. Supreme Court also accommodated the People’s requests for adjournments related to the reassignment of a new ADA, and the reassigned ADA’s lack of preparation six weeks after reassignment because he admittedly “ha[d] not had an opportunity yet to meet with all the witnesses on the pattern robberies since the case was reassigned'to him.”

On July 10, 2006, one of several dates when the matter was set for hearing and trial, the ADA stated that the People were not ready and requested yet another adjournment until July 25. Following discussion regarding why the People were not ready, the court set July 25 as the new date for trial. Defendant’s counsel then informed the court that he was leaving the Legal Aid Society, that he had conferred with the ADA, and that he was requesting a control date in the same week requested by the People so that a new Legal Aid attorney could be reassigned and prepare for trial. Supreme Court declined the request for a control date, and insisted that an attorney be immediately reassigned to meet with defendant and prepare for trial on July 25.

A supervisor from the Legal Aid Society, then present, asked to address the court, and argued in support of the request for an adjournment date that would allow for a new Legal Aid attorney to prepare for trial. He informed the court “[wje’re not going to be ready for trial on the next court date, and if you think that the Legal Aid Society should be relieved, you should do that.” The supervisor sought to justify the request for adjournment based on the complex nature of the case, defendant’s status as a mandatory persistent felon, the time spent on ongoing plea negotiations involving the supervisor, the assigned Legal Aid attorney, and the ADA, and the relatively recent resignation by the assigned attorney. The court again rejected the request for an adjournment, and relieved the Legal Aid Society over the supervisor’s objections. Neither the ADA nor defendant spoke during this exchange.

After the assignment of 18-B counsel, and several more appearances and adjournments, the case was reassigned to a new judge in October 2006. On October 5, defendant pleaded guilty to robbery in the first degree and attempted robbery in the first degree, for a promised sentence of concurrent terms of 20 years to life. Defendant filed two pro se motions on October 13 seeking to withdraw his plea and have new counsel assigned. On October 19, the court denied defendant’s motions and sentenced him to two concurrent terms of 20 years to life.

In a 3-2 decision, the Appellate Division reversed the conviction and remanded for further proceedings, concluding that Supreme Court’s “discharge of defendant’s counsel without consulting defendant was an abuse of discretion and interfered with defendant’s right to counsel” (92 AD3d 1, 3 [1st Dept 2011]). According to the majority, the court treated the parties differently, disparaging the Legal Aid Society while accommodating the People’s numerous requests for adjournments. The dissent argued that in light of a trial court’s broad discretion in handling its calendar, absent a showing of actual prejudice, the court did not improperly relieve Legal Aid, or otherwise interfere with an established attorney-client relationship. A Justice of the Appellate Division granted the People leave to appeal to this Court.

The People assert that defendant forfeited his Sixth Amendment claim by pleading guilty. The Appellate Division rejected this argument, as do we. “Not every claim is forfeited by a guilty plea” (People v Taylor, 65 NY2d 1, 5 [1985]). Claims related to the integrity of the criminal justice system, and “rights of a constitutional dimension that go to the very heart of the process,” survive a guilty plea (People v Hansen, 95 NY2d 227, 230-231 [2000]; see also Taylor, 65 NY2d at 5 [a guilty plea does not “preclude certain rights of constitutional dimension”]). “The critical distinction is between defects implicating the integrity of the process, which may survive a guilty plea, and less fundamental flaws, such as evidentiary or technical matters, which do not” {id. at 231).

Here, the right to counsel is so deeply intertwined with the integrity of the process in Supreme Court that defendant’s guilty plea is no bar to appellate review. A claim that removal of counsel was part of the court’s disparate, unjustifiable treatment of defense counsel goes to the fundamental fairness of our system of justice. While the right to counsel of choice is qualified, and may cede, under certain circumstances, to concerns of the efficient administration of the criminal justice system, we have made clear that courts cannot arbitrarily interfere with the attorney-client relationship, and interference with that relationship for purpose of case management is not without limits, and is subject to scrutiny. In People v Knowles (88 NY2d 763 [1996]), which addressed a trial court’s arbitrary refusal to allow cocounsel to sit at the defense table or cross-examine witnesses, we held that “in exercising its discretion to manage the courtroom, the court’s interference with the defendant’s established relationship with counsel must be justified by overriding concerns of fairness or efficiency—regardless of whether counsel is assigned or retained” (id. at 769).

The People’s reliance on our decision in People v Petgen (55 NY2d 529 [1982]) is misplaced. In Petgen, we found that, as a result of his guilty plea, defendant forfeited his claim that counsel was ineffective where new counsel represented the defendant at the plea, and was aware of the prior attorney’s asserted ineffectiveness. An ineffective assistance of counsel claim is not the legal equivalent to a claim based on deprivation of counsel of choice—even though both fall under the umbrella of the Sixth Amendment. Indeed, a counsel of choice violation cannot be cured by new counsel.

Furthermore, Petgen cannot support the People’s argument that the plea forfeits a claim concerning the alleged taint of the process caused by the removal of counsel. In contrast to Petgen, where we concluded there was no suggestion that the ineffective assistance of counsel claim infected the plea (id. at 534-535), defendant’s claim that the court interfered with his representation by the Legal Aid Society implicates the plea and the plea bargaining process, a robust process in which Legal Aid was actively engaged immediately prior to removal.

The choice of counsel’s significant role in the plea and eventual disposition process has been recognized by the United States Supreme Court in United States v Gonzalez-Lopez (548 US 140 [2006]). The Court stated that

“the choice of attorney will affect whether and on what terms the defendant cooperates with the prosecution, plea bargains, or decides instead to go to trial. In light of these myriad aspects of representation, the erroneous denial of counsel bears directly on the ‘framework within which the trial proceeds'—or indeed on whether it proceeds at all” (548 US at 150 [citation omitted and emphasis added]).

The Fifth and Seventh Federal Circuit Courts have both relied on Gonzalez-Lopez in finding that a deprivation of counsel claim survives a guilty plea (see United States v Sanchez Guerrero, 546 F3d 328, 331-332 [5th Cir 2008]; United States v Smith, 618 F3d 657, 663 [7th Cir 2010]).

In holding that the claim is not forfeited, we do not decide that the removal of counsel in this case necessarily violated a constitutional right. However, the claim defendant makes here and the constitutional right to counsel are close enough to immunize the claim from forfeiture by a guilty plea.

We now turn to the People’s argument that the Appellate Division erroneously concluded that the trial court abused its discretion in violation of the defendant’s right to counsel. We also reject this argument.

The Appellate Division determined that the Legal Aid Society’s request for an adjournment could have and should have been granted. Such adjournments are strictly within the trial court’s discretionary power (People v Spears, 64 NY2d 698, 699-700 [1984]; People v Singleton, 41 NY2d 402, 405 [1977]). Nevertheless, the Appellate Division characterized Supreme Court’s denial as an “improvident exercise of discretion” (92 AD3d at 6), thus substituting its own discretion for that of the trial court (see Spears, 64 NY2d at 700). We cannot say, on this record, that the Appellate Division abused its discretion, or otherwise committed an error of law (People v Mahboubian, 74 NY2d 174, 183 [1989]).

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

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

Order affirmed.

      . The Appellate Division opinion lacks any specific discussion of forfeiture, but concluded that defendant’s guilty plea did not result in a waiver of his claim, citing our decision in People v Hansen (95 NY2d at 230-231), a case decided on forfeiture grounds. While we explained in Hansen the distinction between waiver and forfeiture, we treat the Appellate Division’s reliance on Hansen as a rejection of the People’s forfeiture argument.

      . The People seek to distinguish Gonzalez-Lopez and the federal circuit court decisions on the ground that those cases involved retained counsel, rather than assigned counsel, like the Legal Aid Society in this case. As discussed in this opinion, the right to counsel claim is inextricably intertwined with claims of different treatment in a way that we believe meaningfully places it outside the sphere of claims forfeited by a guilty plea, and implicates the entire criminal justice system. That claim survives the guilty plea in this case, regardless of defendant’s ability to afford counsel, and regardless of whether counsel is assigned (see Knowles, 88 NY2d 763).

      . The Appellate Division could not have reversed, but for its determination of forfeiture, an issue of law, and thus the Court has jurisdiction of this appeal (CPL 450.90 [2] [a]).


author: Smith, J.

text:
    [988 NE2d 488, 965 NYS2d 752]
    Lisa M. Oakes, Individually and as Executrix of Daniel C. Oakes, Deceased, Respondent, v Rajnikant Patel, M.D., et al., Appellants.
    Argued February 14, 2013;
    decided April 2, 2013

      POINTS OF COUNSEL

      Brown & Tarantino, LLC, Buffalo (Ann M. Campbell of counsel), for Rajnikant Patel, M.D., appellant.
    I. This Court has jurisdiction over this appeal and the authority to review the issues raised herein. (Quain v Buzzetta Constr. Corp., 69 NY2d 376; Adams v Genie Indus., Inc., 14 NY3d 535; Whalen v Kawasaki Motors Corp., U.S.A., 92 NY2d 288; Williams v Niske, 81 NY2d 437; Matter of Aho, 39 NY2d 241.) II. The Appellate Division created a preservation requirement not heretofore required of defendants presented with an intolerable additur. (Murphy v Lewry, 235 AD2d 968; Carlson v Porter, 53 AD3d 1129, 11 NY3d 708; Jacques v Sears, Roebuck & Co., 30 NY2d 466; Phoenix Mut. Life Ins. Co. v Conway, 11 NY2d 367; Majauskas v Majauskas, 61 NY2d 481; Kover v Kover, 29 NY2d 408; Knight v Long Is. Coll. Hosp., 106 AD2d 371; Brady v Ottaway Newspapers, 63 NY2d 1031; Perlin v King, 36 AD3d 495; Reed v City of New York, 304 AD2d 1.) III. The Appellate Division should be required to evaluate the trial court’s proposed additur using the proper standard of review. (Marshall v Lomedico, 292 AD2d 669; Matter of Greatsinger, 67 NY2d 177; H & J Blits v Blits, 65 NY2d 1014; O’Connor v Graziosi, 131 AD2d 553, 70 NY2d 613; Auer v State of New York, 289 AD2d 626; Coque v Wildflower Estates Devs., Inc., 58 AD3d 44; Rappold v Snorac, Inc., 289 AD2d 1044, 98 NY2d 614; Coker v Bakkal Foods, Inc., 52 AD3d 765; Harvey v Mazal Am. Partners, 79 NY2d 218; Matter of Rochester Urban Renewal Agency [Patchen Post], 45 NY2d 1.) IV The release executed by plaintiffs should be recognized by this Court, and Rajnikant Patel, M.D. should be afforded the benefit of General Obligations Law § 15-108. (Whalen v Kawasaki Motors Corp., U.S.A., 92 NY2d 288; Hartford Ins. Co. v County of Nassau, 46 NY2d 1028; Matter of Greatsinger, 67 NY2d 177; H & J Blits v Blits, 65 NY2d 1014; Varkonyi v S.A. Empresa De Viacao Airea Rio Grandense [Varig], 22 NY2d 333; Cohen v Hallmark Cards, 45 NY2d 493; Matter of New York City Asbestos Litig. [Brooklyn Nav. Shipyard Cases], 82 NY2d 342; Williams v Niske, 81 NY2d 437.) V The trial court should not have denied defendants’ request that they be permitted to explore plaintiffs underlying medical condition at the second trial, as the issue was crucial to the proper measurement of damages. (Monahan v Weichert, 82 AD2d 102; McCahill v New York Transp. Co., 201 NY 221; J.R. Loftus, Inc. v White, 85 NY2d 874; Alpha Auto Brokers v Continental Ins. Co., 286 AD2d 309; Grawer Bear Constr. Corp. v Bellino Constr. Co., 195 AD2d 499; Coty v Steigerwald, 291 AD2d 796, 98 NY2d 604; Francey v Rutland R.R. Co., 222 NY 482; McGovern v Attie, 37 AD2d 961; Stewart v Olean Med. Group, P.C., 17 AD3d 1094, 19 AD3d 1185; Syrkett v Burden, 176 AD2d 938.)

      Roach, Brown, McCarthy & Gruber, P.C., Buffalo (Gregory T. Miller and Elizabeth G. Adymy of counsel), for Satish K. Mongia, M.D., appellant.
    I. Important questions of law concerning additur and preservation are ripe for the Court’s review. (Camacho v Rochester City School Dist., 20 AD3d 916; Kmiotek v Chaba, 60 AD3d 1295; Hafner v County of Onondaga, 278 AD2d 799; Tate v Colabello, 58 NY2d 84; O’Connor v Papertsian, 309 NY 465; Murphy v Lewry, 235 AD2d 968; Rivera v Lincoln Ctr.

      for Performing Arts, Inc., 16 AD3d 274; Carlos v W.H.P. 19, 301 AD2d 423; Carlson v Porter, 53 AD3d 1129, 11 NY3d 708; Gerbino v Tinseltown USA, 13 AD3d 1068.) II. The construct of a trial on damages and the proof that may be adduced therein is ripe for this Court’s review. (Nestorowich v Ricotta, 97 NY2d 393; Carney v Memorial Hosp. & Nursing Home of Greene County, 64 NY2d 770; McCahill v New York Transp. Co., 201 NY 221; Dunham v Village of Canisteo, 303 NY 498; Monahan v Weichert, 82 AD2d 102; Mortensen v Memorial Hosp., 105 AD2d 151; Rokina Opt. Co. v Camera King, 63 NY2d 728; McGovern v Attie, 37 AD2d 961; Melito v Genesee Hosp., 167 AD2d 842; Stewart v Olean Med. Group, P.C., 17 AD3d 1094.) III. The Appellate Division erred, as a matter of law, in concluding the releases executed by plaintiffs to be null and void. (Hartford Ins. Co. v County of Nassau, 46 NY2d 1028; Allstate Ins. Co. v Gross, 27 NY2d 263; Henner v Everdry Mktg. & Mgt., Inc., 74 AD3d 1776; Booth v 3669 Delaware, 92 NY2d 934; Amherst Coll. v Ritch, 151 NY 282; Dittmar Explosives v A. E. Ottaviano, Inc., 20 NY2d 498; Edenwald Contr. Co. v City of New York, 60 NY2d 957; Bryndle v Safety-Kleen Sys., Inc., 66 AD3d 1396; Whalen v Kawasaki Motors Corp., U.S.A., 92 NY2d 288; McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755.)

      Damon Morey LLP, Buffalo (Amy Archer Flaherty and Michael J. Willett of counsel), for Kaleida Health, appellant.
    I. The Appellate Division erred in ruling that Kaleida Health’s motion for leave to amend its answer to include the affirmative defenses of release and General Obligations Law § 15-108 was properly denied. (McMahan & Co. v Bass, 250 AD2d 460, 92 NY2d 1013; Wells v Shearson Lehman/American Express, 72 NY2d 11; Amherst Coll. v Ritch, 151 NY 282; Matter of Natural Resources Defense Council v New York City Dept. of Sanitation, 83 NY2d 215; Jiggetts v Grinker, 75 NY2d 411; Matter of Knickerbocker Agency [Holz], 4 NY2d 245; Hartford Ins. Co. v County of Nassau, 46 NY2d 1028; Allstate Ins. Co. v Gross, 27 NY2d 263; First Fin. Ins. Co. v Jetco Contr. Corp., 1 NY3d 64.) II. The Appellate Division erred in refusing to review the appropriateness of the trial court’s additur on the ground, raised sua sponte by the Appellate Division, that defendants had failed to preserve the issue. (O’Connor v Graziosi, 131 AD2d 553, 70 NY2d 613; Reed v City of New York, 304 AD2d 1, 100 NY2d 503; Perlin v King, 36 AD3d 495; Rivera v Lincoln Ctr. for Performing Arts, Inc., 16 AD3d 274; Carlos v W.H.P. 19, 301 AD2d 423; Misicki v Caradonna, 12 NY3d 511; Adams v Genie Indus., Inc., 14 NY3d 535.) III. The trial judge erred in precluding the proposed expert testimony on the measure of damages. (Monahan v Weichert, 82 AD2d 102; McCahill v New York Transp. Co., 201 NY 221; Stewart v Olean Med. Group, P.C., 17 AD3d 1094; Mihileas v State of New York, 266 AD2d 866; Beck v Spinner’s Recreational Ctr., Inc., 78 AD3d 1695; Steinhauser v Hertz Corp., 421 F2d 1169; Evans v S. J. Groves & Sons Co., 315 F2d 335.) IV There was insufficient evidence to support the verdict as to Dent Neurologic Institute and Kaleida Health’s vicarious liability for Dent Neurologic Institute. (Cohen v Hallmark Cards, 45 NY2d 493; Stephenson v Hotel Empls. & Rest. Empls. Union Local 100 of. AFL-CIO, 6 NY3d 265; Bleiler v Bodnar, 65 NY2d 65; Spiegel v Goldfarb, 66 AD3d 873, 15 NY3d 711; Flaherty v Fromberg, 46 AD3d 743; Lowe v State of New York, 35 AD3d 1281; Koehler v Schwartz, 48 NY2d 807; Lyons v McCauley, 252 AD2d 516, 92 NY2d 814.)

      Law Office of Francis M. Letro, Buffalo (Ronald J. Wright and Francis M. Letro of counsel), for respondents.
    I. The additur amount issue was not preserved before the trial court and was waived on appeal by defendants’ failure to address the issue. (Robillard v Robbins, 78 NY2d 1105; Merrill v Albany Med. Ctr. Hosp., 71 NY2d 990; Misicki v Caradonna, 12 NY3d 511; Sherry v North Colonie Cent. School Dist., 39 AD3d 986; Zeigler v Neely, 220 AD2d 345; Libman v McKnight, 204 AD2d 856; Berlin v King, 36 AD3d 495; Rivera v Lincoln Ctr. for Performing Arts, Inc., 16 AD3d 274; Carlos v W.H.P. 19, 301 AD2d 423; Camacho v Rochester City School Dist., 20 AD3d 916.) II. A rejected additur or remittitur followed by a second trial is not subject to appellate review. (O’Connor v Papertsian, 309 NY 465; Feathers v Walter S. Kozdranski, Inc., 129 AD2d 975; Ladd v Parkhurst, 87 AD2d 971; Tate v Colabello, 58 NY2d 84; Mayers v D’Agostino, 58 NY2d 696; Carter v Shah, 31 AD3d 1151; Zeigler v Neely, 220 AD2d 345; Best v Yutaka, 90 NY2d 833; Buffalo Elec. Co. v State of New York, 14 NY2d 453; Atkinson v County of Oneida, 57 NY2d 1044.) III. The trial court and the Appellate Division did not abuse their discretion by denying defendants leave to amend their answers. (Mayers v D’Agostino, 58 NY2d 696; Murray v City of New York, 43 NY2d 400; Jablonski v County of Erie, 286 AD2d 927; Sewkarran v DeBellis, 11 AD3d 445; Smith v Sarkisian, 63 AD2d 780, 47 NY2d 878; Morris v Queens Long Is. Med. Group, P.C., 49 AD3d 827; England v Sanford, 78 NY2d 928; Matter of McIntosh v State of New York, 7 AD3d 890; Stajano v United Tech. Corp., 5 AD3d 260; Shepherd v New York City Tr. Auth., 129 AD2d 574.) TV The trial court properly precluded defendants from relitigating causation during the second damages-only trial where causation was determined in full at the first trial. (McCahill v New York Transp. Co., 201 NY 221; Dunham v Village of Canisteo, 303 NY 498; Monahan v Weichert, 82 AD2d 102; McGovern v Attie, 37 AD2d 961; Melito v Genesee Hosp., 167 AD2d 842; Stewart v Olean Med. Group, P.C., 17 AD3d 1094; Schneider v Memorial Hosp. for Cancer & Allied Diseases, 100 AD2d 583; Steinhauser v Hertz Corp., 421 F2d 1169; Crawford v Town of Hamburg, 19 AD2d 100; Gray v Jaeger, 49 AD3d 287.) V. Kaleida Health was properly found to be vicariously liable for the negligence of Dent Neurologic Institute. (Adamy v Ziriakus, 92 NY2d 396; Cohen v Hallmark Cards, 45 NY2d 493; Quain v Buzzetta Constr. Corp., 69 NY2d 376; Niagara Vest v Alloy Briquetting Corp., 244 AD2d 892; Russell v City of Buffalo, 34 AD3d 1291; Kerker v Hurwitz, 163 AD2d 859.)
   OPINION OF THE COURT

Smith, J.

Defendants challenge a large medical malpractice judgment against them on various grounds. We reject most of their arguments, but modify the Appellate Division’s order to require a new trial on damages for pain and suffering, because the courts below erred in holding that causation issues could not be litigated at a damages trial.

I

On July 18, 1998 Daniel Oakes suffered a sudden, severe headache that was accompanied by vomiting and sensitivity to light. The headache persisted over the next three weeks. Evidence at trial showed that it resulted from an aneurysm (i.e., a balloon-like bulge) in a blood vessel near the brain; the aneurysm went undetected until it ruptured on August 7, 1998, causing a severe stroke that left Mr. Oakes permanently disabled. During the 20-day interim, Mr. Oakes consulted several doctors, including two who now remain as defendants: his primary care doctor, Rajnikant Patel, and a neurologist, Satish Mongia. He also had a CT scan at Millard Fillmore Suburban Hospital; Fillmore Suburban was owned by Millard Fillmore Hospitals, a corporation to which defendant Kaleida Health is the successor in interest. There was evidence at trial supporting a finding that the CT scan was either misread or not read at all, and that if it had been read properly the aneurysm could have been detected and the stroke prevented.

Mr. Oakes and his wife brought this action in 2000. In 2008, after a trial on liability and damages, a jury found that Dr. Patel, Dr. Mongia and Fillmore Suburban were negligent and that their negligence was a substantial factor in causing the injuries complained of. The jury assigned 5% of the fault to Dr. Patel, 1% to Dr. Mongia, and 75% to Fillmore Suburban. It assigned the remaining 19% of the fault to Dent Neurologic Group, a nonparty with which Fillmore Suburban had an arrangement for the reading of CT scans. The jury also found that Millard Fillmore Hospitals was vicariously liable for Dent’s negligence. The jury awarded plaintiffs damages in various categories totaling approximately $5.1 million. The main issues on this appeal arise from three motions that were made after this verdict was rendered.

First, plaintiffs moved to set aside as inadequate the damages portion of the verdict. As to the most significant categories of damages, on which the jury had awarded approximately $4 million, the trial court granted the motion, ordering a new trial as to these items unless defendants agreed to increase the amounts to a total of $17.4 million. Defendants rejected the additur, and a new trial on damages took place.

Secondly, between the first and second trials, Kaleida (which was sued for Millard Fillmore Hospitals’ liability) moved to amend its answer to assert a defense of release, and to dismiss conditionally, on the ground of release, most of plaintiffs’ claims against Kaleida. The release defense was based on proofs of claim that plaintiffs had submitted in 2003 in liquidation proceedings relating to Kaleida’s liability insurer, which we will explain in more detail below. The trial court denied the motion, holding that plaintiffs would be prejudiced by the belated amendment.

Thirdly, shortly before the new trial on damages, plaintiffs moved in limine to preclude, among other things, “any testimony or evidence contesting . . . causation.” The trial court granted this relief, concluding that the issue of causation had been decided by the first jury, and could not be relitigated.

In 2009, the jury at the second trial awarded damages totaling approximately $16.7 million, in addition to the undisturbed $1.1 million portion of the first verdict. The trial court entered judgment accordingly, and the Appellate Division affirmed, with two Justices dissenting in separate opinions (Oakes v Patel, 87 AD3d 816 [4th Dept 2011]).

The Appellate Division majority held, among other things, that Kaleida’s motion to amend was properly denied because the releases it sought to rely on were “null and void” (87 AD3d at 819); and that defendants had failed to preserve their argument that the trial court’s additur was excessive {id. at 819-820). The majority did not discuss the preclusion of defendants’ causation testimony at the second trial. Justice Smith dissented on the ground that the damages awarded by the second jury were excessive (a claim defendants do not pursue in this Court). Justice Peradotto dissented from the majority’s ruling on the additur: she would have found that defendants preserved the issue, by opposing the motion for a new trial on damages and by rejecting the proposed additur, and would have held the additur to be excessive.

The Appellate Division granted defendants leave to appeal (87 AD3d 1414 [4th Dept 2011]). We now modify the Appellate Division’s order to direct a new trial on the issue of damages for Mr. Oakes’s pain and suffering, and otherwise affirm.

II

We agree with the Appellate Division majority that the claimed excessiveness of the trial court’s additur was not properly before it, though we reach that conclusion by a route different from the one the Appellate Division took.

Defendants were not required, in order to preserve their claim that the additur was excessive, to identify a specific amount that they considered reasonable. As Justice Peradotto pointed out, defendants made clear in opposing plaintiffs’ motion for a new trial their view that the first jury’s award was reasonable, and “that an additur in any amount would be inappropriate” (Oakes v Patel, 87 AD3d at 823 [Peradotto, J., dissenting]). The Appellate Division regularly reviews, and sometimes accepts, arguments that an additur or remittitur granted by a trial court is either excessive or inadequate (see e.g. Perlin v King, 36 AD3d 495 [1st Dept 2007]; Rivera v Lincoln Ctr. for Performing Arts, Inc., 16 AD3d 274 [1st Dept 2005]; Carlos v W.H.P 19, 301 AD2d 423 [1st Dept 2003]). In no such case, as far as we are aware, has the appellant’s claim been held unpreserved for failure to specify a more reasonable increase or decrease in the damages, and imposing such a requirement would serve little purpose.

But a party that wants to challenge the amount of an additur or remittitur on appeal must do so before a new trial takes place. The chief benefit of the devices known as additur and remittitur is that, when they are accepted, they spare the parties and the court the burden and expense of a second trial. Deferring appellate review until after the second trial destroys that benefit. Such a deferral also gives the party opposing the additur or remittitur an unjustified tactical advantage: if successful on appeal, that party can choose whether to accept the new amount of the additur or remittitur, already knowing what the second jury has awarded.

No case has been cited to us in which an appellate court has modified an additur or remittitur after the increased or decreased judgment has been rejected and a new trial has taken place. The Supreme Court of Florida, in the only case we are aware of that addresses a similar question, was also unable to find any such decision anywhere (Poole v Veterans Auto Sales & Leasing Co., Inc., 668 So 2d 189, 191 [Fla 1996]). And under New York appellate practice, review of an additur or remittitur after final judgment would seem inconsistent with the rule that an order granting a new trial—the only kind of order that can include an additur or remittitur—is not one that “necessarily affects” a final judgment and so is not brought up for review when the final judgment is appealed (see CPLR 5501 [a] [1]; Karger, Powers of the New York Court of Appeals § 9:5 at 312 [3d ed rev]).

We see no unfairness in requiring a party dissatisfied with the size of an additur or remittitur to obtain appellate review before any retrial. If there is not time for such review, and neither the trial court nor the appellate court will grant a stay, the party’s remedy is to reject the proffered stipulation and retry the case. Defendants here pursued that remedy. They are not entitled to another remedy because they are displeased with the result.

ra

Kaleida argues that its motion to amend its answer to assert a defense of release, made between the first and second trials, should have been granted. The other defendants join the argument, because a release of Kaleida would reduce their exposure to damages under General Obligations Law § 15-108. Before considering the argument, however, we must decide whether we have the power to do so. The question arises because, as we mentioned above, under CPLR 5501 (a) (1) an appeal from a final judgment brings up for review a nonfinal judgment or order only when the nonfinal decision “necessarily affects the final judgment.” The reviewability of the order denying Kaleida’s motion to amend depends on whether it meets that description.

Our opinions have rarely discussed the meaning of the expression “necessarily affects” in CPLR 5501 (a) (1). (Matter of Aho, 39 NY2d 241, 248 [1976] and Siegmund Strauss, Inc. v East 149th Realty Corp., 20 NY3d 37 [2012] are exceptions.) We have never attempted, and we do not now attempt, a generally applicable definition. Various tests have been proposed, but how to apply them to particular cases is not self-evident, and our decisions in this area may not all be consistent (see generally Karger, Powers of the New York Court of Appeals § 9:5 at 304-314 [3d ed rev 2005]).

The application of the “necessarily affects” rule to orders granting or denying motions to amend pleadings has been particularly vexing. We have at times reviewed such orders, thus implicitly assuming that they necessarily affected the final judgment (see Whalen v Kawasaki Motors Corp., U.S.A., 92 NY2d 288, 293 [1998]; Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983]). On the other hand, in Best v Yutaka (90 NY2d 833, 834 n [1997]) and in Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner (96 NY2d 300, 303 n 1 [2001]) we dismissed appeals insofar as they were taken from orders ruling on motions to amend pleadings. In each of these cases we said in a footnote, without further elaboration, that the order did not “necessarily affect the final determination. ’ ’

We now conclude that we cannot adhere to the rule that the grant or denial of a motion to amend is always unreviewable on appeal from a final judgment. There will be times, of which this is one, when such a ruling “necessarily affects” the final judgment under any common sense understanding of those words. Here, Kaleida’s motion to amend, if granted, would have added a new defense to the case—one that defendants argue, with at least colorable justification, would have significantly changed the case’s result. We hold that in such cases—when an order granting or denying a motion to amend relates to a proposed new pleading that contains a new cause of action or defense—the order necessarily affects the final judgment. Best and Arnav, to the extent they hold otherwise, are overruled.

Having found the order denying the motion to amend reviewable, we must begin our review by explaining the rather complicated background of Kaleida’s asserted release defense. Kaleida was insured, subject to a $2 million self-insured retention, by PHICO Insurance Company. PHICO entered liquidation in Pennsylvania in 2002, while this action was pending. In 2003, plaintiffs, seeking to protect their right to whatever insurance proceeds might become available, filed claims with the liquidator.

A Pennsylvania statute says that, when a third party having a claim against an insured files a claim with the liquidator of an insurer, the filing “shall operate as a release of the insured’s liability to the third party ... in the amount of the applicable policy limit” (40 Pa Cons Stat § 221.40 [a]). The Pennsylvania Supreme Court has held that, under this statute, a party filing such a claim makes a binding election to grant a release to the insured, and cannot later change his mind (Koken v Reliance Ins. Co., 586 Pa 269, 290-295, 893 A2d 70, 82-85 [2006]). The third party must “make a choice between pursuing his claim against the insured and presenting his claim in the liquidation” (586 Pa at 293, 893 A2d at 84). Thus, when plaintiffs here made their claim in liquidation, they effectively released their claims against Kaleida to the extent those claims were covered by insurance—i.e., all their claims in excess of the $2 million retention. Indeed, the claim forms plaintiffs signed said, immediately above their signatures: “The undersigned hereby releases any and all claims which have been or could be made against such PHICO insured ... up to the amount of the applicable policy limits and subject to coverage being accepted by the Liquidator, regardless of whether any compensation is actually paid to the undersigned.”

The Pennsylvania statute also provides, however, that a claimant’s release “shall be null and void if the insurance coverage is avoided by the liquidator” (40 Pa Cons Stat § 221.40 [a])—and here the liquidator has avoided coverage of Kaleida for part of the claims now in suit. Relying on Kaleida’s decision to abandon a third-party claim against Dent, the liquidator has declined to accept coverage to the extent that Kaleida is held vicariously liable for Dent’s conduct. The liquidator has acknowledged liability for the 75% of the fault attributed directly to Kaleida by the first jury, but not for the 19% attributed to Dent, and thus to Kaleida vicariously. The impact of this on plaintiffs’ releases of Kaleida is unclear under Pennsylvania law; presumably, it voids the releases at least to the extent of the Dent share of the obligation, but whether it voids them entirely—or, perhaps, gives plaintiffs the option of voiding them entirely—is at least disputable.

The Appellate Division resolved this question of Pennsylvania law against Kaleida, holding that the releases were entirely “null and void,” and that therefore the trial court did not err when it barred Kaleida from relying on them. But unlike the Appellate Division, we do not decide the merits of the release defense. Rather we hold that, even assuming that Kaleida’s release defense had merit, the trial court did not abuse its discretion in denying the motion to amend as untimely.

Kaleida claims that the releases did not come to its counsel’s attention until 2008, after the first jury’s verdict. It is clear, however, that Kaleida could have discovered the existence of the releases much sooner. Indeed, in 2007, before the first trial, Kaleida itself, as PHICO’s insured, submitted a claim to the liquidator—using a form identical to the ones, including release language, that plaintiffs had signed in 2003.

The trial court found, and had a basis for finding, that Kaleida’s unexcused delay in relying on the releases prejudiced plaintiffs. Under the theory that Kaleida advanced for the first time between the two trials, it was released for its own actions, but not for the actions of Dent. Had plaintiffs been aware of that defense earlier, they would surely have made an effort to persuade the jury at the first trial that more fault should be attributed to Dent than to Kaleida itself—and they might have succeeded in getting a more favorable apportionment of fault between Dent and Kaleida than the 19% and 75% the first jury adopted. Instead, during the first trial plaintiffs, uncertain of establishing Kaleida’s vicarious liability, directed significant effort at showing that Kaleida’s predecessor Millard Fillmore Hospitals, rather than Dent, was at fault; they even joined Kaleida in an unsuccessful effort to persuade the court not to submit the issue of Dent’s fault to the jury.

It is also reasonable to infer that plaintiffs’ approach to settlement would have been altered if a defense of release had been in the case before the first trial. A claim that is subject to a release defense obviously has a lower settlement value than one that is not.

The decision whether to grant the belated amendment of its answer that Kaleida sought was within the discretion of the trial court (e.g. Whalen, 92 NY2d at 293). That discretion was not abused here.

IV

The trial court erred in prohibiting defendants from litigating issues of causation at the second, damages-only trial.

It is often true, as it is in this case, that causation issues are relevant both to liability and to damages. Thus, in a medical malpractice case, liability cannot be established unless it is shown that the defendant’s malpractice was a substantial factor in causing the plaintiffs injury (Mortensen v Memorial Hosp., 105 AD2d 151, 158 [1st Dept 1984]). But even where liability is established, the plaintiff may recover only those damages proximately caused by the malpractice. More specifically, where a condition existing before the malpractice occurred may have contributed to the plaintiffs injury, the plaintiff is not entitled to recover those damages that the preexisting condition would have caused in the absence of malpractice (see McCahill v New York Transp. Co., 201 NY 221, 224 [1911] [in a wrongful death case, “the probability of later death from existing causes for which a defendant was not responsible would probably be an important element in fixing damages”]; Schneider v Memorial Hosp. for Cancer & Allied Diseases, 100 AD2d 583, 584 [2d Dept 1984] [medical malpractice award excessive because “it failed to take into account the fact that the underlying disease . . . could in the future be expected to be the cause” of much of the damage complained of]; Steinhauser v Hertz Corp., 421 F2d 1169, 1173 [2d Cir 1970] [where an accident precipitated plaintiffs schizophrenia, her “latent psychotic tendencies . . . may have a significant bearing on the amount of damages”]).

Here, Mr. Oakes had a preexisting condition, an aneurysm in a blood vessel near his brain. Defendants’ malpractice did not cause the aneurysm. Defendants should have been allowed to show that, even with appropriate medical care, some of the injuries that Mr. Oakes suffered were inevitable. The trial court was mistaken in thinking that the first jury’s verdict resolved this question. The first jury did decide that the malpractice was a substantial factor in causing Mr. Oakes’s stroke, but defendants were entitled to show that some of the pain and suffering that Mr. Oakes endured was not preventable.

Thus, the trial court should not have granted plaintiffs’ motion in limine to preclude causation proof at the second trial. A closer question is whether this error had any practical impact on the case. Defendants did not respond to the trial court’s ruling by making a specific offer of proof. Dr. Mongia had served an “expert disclosure” pursuant to CPLR 3101 (d) (1) (i), saying that an expert witness would testify “with respect to the degree of likelihood, if any, that the Plaintiff DANIEL OAKES’s alleged pain and suffering could have been avoided, the degree to which his alleged future medical costs could have been prevented, if at all, and consequently, the degree to which the Plaintiff LISA OAKES’s alleged losses could have been prevented, if at all.” But the disclosure is phrased in general terms and does not tell us specifically what the expert would have said. While it may be adequate for disclosure purposes, it does not serve the function of an offer of proof, which is to enable an appellate court to understand clearly what evidence a trial court has excluded. If we had no more than the expert disclosure to go on, we would not feel justified in reversing any part of the judgment in this case, despite our disagreement with the in limine ruling.

During the course of the second trial, however, Dr. Mongia did present causation evidence, which the court, relying on its in limine ruling, ordered the jury to disregard. Plaintiffs had proved in support of their pain and suffering claim, through the testimony of Mrs. Oakes and an expert, that Mr. Oakes’s treatment for his stroke had resulted in a wound in his groin that became infected and caused serious difficulty. Mrs. Oakes had testified:

“Q. Did you see that infection?
“A. Yes.
“Q. Can you describe what that looked like and where it was?
“A. Well, when I saw when it was opened up and left open ... it was about the size of a pita pocket, and it was just like raw meat, just raw meat in there, pussy and smelled terrible.
“Q. And how long did that wound remain open?
“A. That remained open for a long time. It started healing when he was at the last hospital that he was at. But the slightest little thing would rip it all open again, and he had a lot of problems with that area.”

Responding to this evidence, counsel for Dr. Mongia elicited testimony, while cross-examining plaintiffs’ expert witness, that the groin wound was the result of an angiogram (a means of obtaining images of the inside of blood vessels), and that an angiogram would have been necessary to deal with Mr. Oakes’s aneurysm even if his stroke had not occurred. The trial court ruled this and certain other testimony inadmissible, saying to the jury: “the issues of the responsibility and the tie to the injuries as far as causation have been determined, and we’re not revisiting that again.” The court thus told the jury, in substance, that it could not consider the extent to which plaintiffs’ injuries resulted from the malpractice.

We conclude that this error requires reversal of the second jury’s awards (totaling $9.6 million) for pain and suffering. Plaintiffs argue that the groin injury was “minor” in the context of Mr. Oakes’s other very serious injuries, and perhaps it was; but plaintiffs chose to present detailed and vivid testimony about it. We cannot say that this testimony had no significant effect on the jury’s verdict.

We see no need, however, to disturb the awards of the second jury (totaling $7.12 million) in the other categories of damages that were submitted to it: custodial care and supportive services for Mr. Oakes, Mrs. Oakes’s past and future loss of Mr. Oakes’s services and society, and Mrs. Oakes’s future loss of household services. Defendants have identified no evidence and made no argument which suggests to us that proof on causation could have affected these awards. Plaintiffs’ damages in these categories, as far as we can infer from the record, are attributable simply to the fact that Mr. Oakes had a disabling stroke. Any contention that the stroke would have occurred even in the absence of malpractice is essentially a defense to liability, not damages, and is foreclosed by the verdict of the first jury.

V

There is one remaining argument before us: Kaleida claims that there was insufficient evidence before the first jury to support the finding of fault by Dent. The argument is without merit.

The evidence showed that there was an arrangement between Dent and Millard Fillmore Suburban Hospital, by which any scans of the head taken at Fillmore Suburban were read and interpreted by Dent. There was expert testimony that the CT scan of Mr. Oakes’s head, taken 15 days before his stroke, would, if properly interpreted, have disclosed a hemorrhage, and that that finding should have led to the taking of measures that could have stopped the stroke from occurring. It was undisputed that no written report was made of Dent’s reading of the CT scan, and that the scan was orally reported to Mr. Oakes and to doctors treating him as showing no abnormality. From these facts, the inference that the scan was either misread or not read at all, and that Dent was at fault for this error, is compelling.

Accordingly, the order of the Appellate Division should be modified, without costs, in accordance with this opinion, and as so modified, affirmed. The certified question is unnecessary and should not be answered.

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

Order modified, without costs, in accordance with the opinion herein, and as so modified, affirmed, and certified question not answered upon the ground that it is unnecessary.

       Mr. Oakes died while this appeal was pending. We use “plaintiffs” to include Mr. Oakes or Mrs. Oakes as his executrix, as the context requires.


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

text:
    [988 NE2d 481, 965 NYS2d 746]
    In the Matter of City of Yonkers, Respondent, v Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO, Appellant.
    Argued February 13, 2013;
    decided April 2, 2013

      POINTS OF COUNSEL

      Meyer, Suozzi, English & Klein, P.C., New York City (Richard S. Corenthal and Joni H. Kletter of counsel), for appellant.
    I. New York State courts favor arbitration and discourage judicial interference. (Matter of New York City Tr. Auth. v Transport Workers Union of Am., Local 100, AFL-CIO, 99 NY2d 1; Steelworkers v Warrior & Gulf Nav. Co., 363 US 574; Matter of Board of Educ. of Yonkers City School Dist. v Yonkers Fedn. of Teachers, 40 NY2d 268; Board of Educ. of Union Free School Dist. No. 3 of Town of Huntington v Associated Teachers of Huntington, 30 NY2d 122; Matter of City of Johnstown [Johnstown Police Benevolent Assn.], 99 NY2d 273; Matter of Board of Educ. of Dover Union Free School Dist. v Dover-Wingdale Teachers’ Assn., 61 NY2d 913; Matter of Board of Educ. of Norwood-Norfolk Cent. School Dist. [Hess], 49 NY2d 145; Board of Educ. of Watertown City School Dist. [Watertown Educ. Assn.], 93 NY2d 132; Matter of Union Free Dist. #15, Town of Hempstead v Lawrence Teachers Assn., 33 AD3d 808; Matter of City of Oswego [Oswego City Firefighters Assn., Local 2707], 93 AD3d 1243.) II. The collective bargaining agreement is still in effect pursuant to Civil Service Law § 209-a (1) (e), the Triborough Law and tier 5 legislation. (Matter of Professional Staff Congress-City Univ. of N.Y. v New York State Pub. Empl. Relations Bd., 7 NY3d 458; Matter of Board of Trustees of Maplewood-Colonie Common School Dist. [Maplewood Teachers’ Assn.], 57 NY2d 1025; County of Nassau v New York State Pub. Empl. Relations Bd.,
      151 AD2d 168; Association of Surrogates & Supreme Ct. Reporters Within City of N.Y. v State of New York, 79 NY2d 39; Matter of Cobleskill Cent. School Dist. v Newman, 105 AD2d 564, 64 NY2d 1071; Matter of County of Niagara v Newman, 104 AD2d 1; Smith v People, 47 NY 330; Matter of Hartnett v Village of Ballston Spa, 152 AD2d 83, 75 NY2d 711.) III. Affirming the Appellate Division, Second Department’s decision will result in an unconstitutional impairment of contract. (United States Trust Co. of N. Y. v New Jersey, 431 US 1; Equipment Mfrs. Inst. v Janklow, 300 F3d 842; General Motors Corp. v Romein, 503 US 181; Educational Empls. Credit Union v Mutual Guar. Corp., 50 F3d 1432; Energy Reserves Group, Inc. v Kansas Power & Light Co., 459 US 400; Condell v Bress, 983 F2d 415; Association of Surrogates & Supreme Ct. Reporters Within City of N.Y. v State of New York, 940 F2d 766; University of Hawai’i Professional Assembly v Cayetano, 183 F3d 1096; Association of Surrogates & Supreme Ct. Reporters Within City of N.Y. v State of New York, 79 NY2d 39; American Fedn. of State, County & Mun. Empls. v City of Benton, Ark., 513 F3d 874.) IV The Appellate Division, Second Department, incorrectly held that arbitration of this grievance is barred by statute. (Matter of City of Oswego [Oswego City Firefighters Assn., Local 2707], 93 AD3d 1243; Matter of Peters v Union-Endicott Cent. School Dist., 77 AD3d 1236; Matter of Village of Fairport v Newman, 90 AD2d 293; Board of Educ. of Union Free School Dist. No. 3 of Town of Huntington v Associated Teachers of Huntington, 30 NY2d 122; Matter of City of Plattsburgh [Plattsburgh Police Officers Union AFSCME Local 82], 250 AD2d 327; Matter of County of Chautauqua v Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d 513; Matter of City of Long Beach v Civil Serv. Empls. Assn., Inc.—Long Beach Unit, 8 NY3d 465; Matter of Patrolmen’s Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d 563.)

      Bond, Schoeneck & King, PLLC, Garden City (Terence M. O’Neil and Christopher T. Kurtz of counsel), for respondent.
    The Appellate Division, Second Department, correctly held that a stay of arbitration pursuant to CPLR 7503 was proper. (Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.], 42 NY2d 509; Matter of Board of Educ. of Watertown City School Dist. [Watertown Educ. Assn.], 93 NY2d 132; Matter of City of Johnstown [Johnstown Police Benevolent Assn.], 99 NY2d 273; Matter of City of Oswego [Oswego City Firefighters Assn., Local 2707], 93 AD3d 1243; Matter

      of Board of Educ. of City School Dist. of City of N.Y. v New York State Pub. Empl. Relations Bd., 75 NY2d 660; Matter of Peters v Union-Endicott Cent. School Dist., 77 AD3d 1236; Matter of City of Plattsburgh [Plattsburgh Police Officers Union AFSCME Local 82], 250 AD2d 327; Association of Surrogates & Supreme Ct. Reporters Within City of N.Y. v State of New York, 79 NY2d 39; Matter of Professional Staff Congress-City Univ. of N.Y. v New York State Pub. Empl. Relations Bd., 7 NY3d 458; Matter of Cobleskill Cent. School Dist. v Newman, 105 AD2d 564.)

      Hinman Straub, P.C., Albany (Joseph M. Dougherty of counsel), for New York State Professional Firefighters Association, I.A.F.F., AFL-CIO, amicus curiae.
    I. The Second Department erred in holding that the collective bargaining agreement was not “in effect” for purposes of article 22 of the Retirement and Social Security Law pursuant to section 8 of part A of chapter 504 of the Laws of 2009. (Matter of Professional Staff Congress-City Univ. of N.Y. v New York State Pub. Empl. Relations Bd., 7 NY3d 458; Matter of Goodman [Barnard Coll.—Commissioner of Labor], 95 NY2d 15; Association of Surrogates & Supreme Ct. Reporters Within City of N.Y. v State of New York, 79 NY2d 39; Matter of City of Oswego [Oswego City Firefighters Assn., Local 2707], 93 AD3d 1243; United States Trust Co. of N. Y. v New Jersey, 431 US 1; General Motors Corp. v Romein, 503 US 181; Allied Structural Steel Co. v Spannaus, 438 US 234; Energy Reserves Group, Inc. v Kansas Power & Light Co., 459 US 400; Association of Surrogates & Supreme Ct. Reporters Within City of N.Y. v State of New York, 940 F2d 766; Donohue v Paterson, 715 F Supp 2d 306.) II. The Second Department erred in holding that arbitration of this dispute is barred by statute. (Matter of Professional, Clerical, Tech. Empls. Assn. [Buffalo Bd. of Educ.], 90 NY2d 364; Board of Educ., Bellmore-Merrick Cent. High School Dist., Nassau County v Bellmore-Merrick United Secondary Teachers, 39 NY2d 167; Matter of New York City Tr. Auth. v Transport Workers Union of Am., Local 100, AFL-CIO, 99 NY2d 1; Matter of New York City Dept. of Sanitation v MacDonald, 87 NY2d 650; Matter of United Fedn. of Teachers, Local 2, AFT, AFL-CIO v Board of Educ. of City School Dist. of City of N.Y., 1 NY3d 72; Matter of City of Johnstown [Johnstown Police Benevolent Assn.], 99 NY2d 273.)
   OPINION OF THE COURT

Pigott, J.

At issue in this case is the meaning of the words “in effect” as contained in Laws of 2009, chapter 504 (part A, § 8), specifically whether expired collective bargaining agreements are “in effect” for purposes of that statute because of the so-called Triborough Law.

Petitioner, the City of Yonkers, and respondent, Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO, entered into a collective bargaining agreement (CBA), dated July 1, 2002, which, by stipulation, was extended to June 30, 2009. In the CBA, the City agreed to offer its firefighters the option of enrolling in one of two retirement plans, and agreed that it would bear “the complete cost” of contributions, “pursuant to . . . State law.”

In 2009, in response to the fiscal crisis, Governor Paterson and the legislature ended the right of newly hired firefighters to join such noncontributory pension plans. The legislature enacted article 22 of the Retirement and Social Security Law, effective in January 2010, which placed new members of the New York State and Local Police and Fire Retirement System in a new tier of pension benefits—tier 5—requiring members to contribute 3% of their salaries toward their pensions (see Retirement and Social Security Law § 1204).

The focus of this appeal is a narrow exception provided in section 8 of the 2009 legislation.

“Notwithstanding any provision of law to the contrary, nothing in this act shall limit the eligibility of any member of an employee organization to join a special retirement plan open to him or her pursuant to a collectively negotiated agreement with any state or local government employer, where such agreement is in effect on the effective date of this act and so long as such agreement remains in effect thereafter; provided, however, that any such eligibility shall not apply upon termination of such agreement for employees otherwise subject to the provisions of article twenty-two of the retirement and social security law” (L 2009, ch 504, part A, § 8 [emphasis added]).

Following the 2009 legislation, no agreement on a new CBA was reached in Yonkers. The City, noting the June 30, 2009 termination date of the CBA, required firefighters who were hired after that date to pay 3% of their wages towards retirement benefits. In response, the Union filed an improper practice charge with the New York State Public Employment Relations Board (PERB), alleging that the City had erred in failing to apply the CBA to firefighters hired by the City after the CBA’s termination date. The Union relied on the exception contained in section 8, as well as Civil Service Law § 209-a (1) (e), often referred to as the Triborough Law.

After PERB referred the matter to arbitration, the City commenced this proceeding for a permanent stay of arbitration on the ground that arbitration is barred by Civil Service Law § 201 (4) and Retirement and Social Security Law § 470. Supreme Court rejected this argument, and dismissed the proceeding; but the Appellate Division reversed, and granted the petition, holding that the statutes cited are a bar to arbitration. “[T]he CBA, which terminated by its own terms in June 2009, was no longer ‘in effect’ at the time of the effective date of article 22 of the Retirement and Social Security Law,” with the result that “the exception set forth in section 8 of that article is inapplicable” (90 AD3d 1043, 1044-1045 [2d Dept 2011]). We granted the Union leave to appeal (19 NY3d 802 [2012]), and now affirm.

A grievance may be submitted to arbitration only if (1) it is lawful for the parties to arbitrate the dispute and (2) the parties agreed to arbitrate that kind of dispute (see e.g. Matter of City of Johnstown [Johnstown Police Benevolent Assn.], 99 NY2d 273, 278 [2002]). The City argues that the first condition is not met, because arbitration of the present dispute is prohibited by statute.

Public employers executing a CBA are prohibited from negotiating and granting retirement benefits that are not already expressly provided under state law. (A CBA may provide for retirement benefits as authorized by law, which is why the CBA here was valid until article 22 was enacted.) Civil Service Law § 201 (4) prohibits the negotiation of “benefits provided by or to be provided by a public retirement system, or payments to a fund or insurer to provide an income for retirees, or payment to retirees or their beneficiaries.” Retirement and Social Security Law § 470 similarly proscribes “[c]hanges negotiated between any public employer and public employee . . . with respect to any benefit provided by or to be provided by a public retirement system, or payments to a fund or insurer to provide an income for retirees or payment to retirees or their beneficiaries.”

As the parties frame their dispute, whether the arbitration sought by the Union would amount to negotiation prohibited by these statutes depends on whether the CBA was “in effect” pursuant to section 8, when article 22 of the Retirement and Social Security Law became effective, or had terminated within the meaning of that statute. If it was not “in effect,” then arbitration would be an attempt at negotiation of the 3% now imposed on new firefighters and is barred.

The Triborough doctrine, upon which the Union relies, was codified by the enactment of Civil Service Law § 209-a (see L 1982, ch 868). With an exception not applicable here, that section provides that it is “an improper practice for a public employer or its agents deliberately ... to refuse to continue all the terms of an expired agreement until a new agreement is negotiated” (Civil Service Law § 209-a [1] [e] [emphasis added]). The law “requires an employer to continue all the terms of an expired CBA while a new agreement is being negotiated . . . [U]nder the statute, the assumption is that all terms of a CBA remain in effect during collective bargaining of a successor agreement” (Matter of Professional Staff Congress-City Univ. of N.Y. v New York State Pub. Empl. Relations Bd., 7 NY3d 458, 466, 469 [2006]). The purpose is “to preserve the status quo in situations where a [CBA] between a public employer and its employees has expired and a new one has yet to be agreed upon” (id. at 467, quoting Matter of Goodman [Barnard Coll.—Commissioner of Labor], 95 NY2d 15, 22 [2000]).

Because no successor CBA was negotiated in the present case, the Triborough Law would apply, and the CBA’s terms would be continued, unless contradicted by statute. Here, however, the part of the CBA that required noncontributory plans is rendered unlawful by article 22 of the Retirement and Social Security Law, which prohibits such plans, unless the section 8 exception is applicable.

The Union argues that the section 8 exception applies because it extends to CBAs that have expired but are deemed to remain in effect because of the Triborough Law. This was not the legislature’s intent. If the legislature had intended to invoke the Triborough doctrine, it would certainly have made that explicit. Instead, the legislature, having set forth the section 8 exception for CBAs that are “in effect,” expressly states that eligibility to join a CBA’s retirement plan “shall not apply upon termination of such agreement” (L 2009, ch 504, part A, § 8). This language makes clear that the legislature did not intend to apply the exception to agreements that had expired and could only be deemed to continue through the Triborough Law.

This interpretation is further supported by the legislative history. Governor Paterson noted in a Program Bill Memorandum that section 8 of the bill ensures “that members of an employee organization that are eligible to join a special retirement plan pursuant to a collectively negotiated agreement with any state or local government employer, would be able to continue to enroll in that special plan after the enactment of this bill, until the date on which such agreement terminates” (Governor’s Program Bill Mem, Bill Jacket, L 2009, ch 504 at 9 [emphasis added]). Again, the chosen language indicates that a noncontributory plan does not outlast the expiration of the CBA.

Under the Union’s interpretation of the statute, the legislature would have been creating a loophole whereby a union, by the simple expedient of refusing to reach agreement on a new CBA, could ensure the continuation of noncontributory pension benefits to new hires, conceivably ad infinitum. Instead, it is clear that the legislature intended to honor only agreements providing for noncontributory status that had not expired at the time the statute became effective.

The Union further argues that if section 8 did not encompass a CBA deemed to continue under the Triborough Law, then section 8 would run afoul of the Contract Clause of the United States Constitution—“No State shall . . . pass any . . . Law impairing the Obligation of Contracts” (US Const, art I, § 10 [1]). This argument begs the question of whether the contract at issue here remains in effect. Under our analysis, there were no contractual obligations to impair.

Finally, we disagree with the dissent’s position that the language of tier 6 (L 2012, ch 18, § 80) is evidence that, in enacting article 22 of the Retirement and Social Security Law, the legislature intended to authorize participation in noncontributory pension benefits pursuant to agreements that had expired. Significantly, the dissent points to no legislative history supporting its theory that the express references to “unexpired” CBAs were included in 2012 because the legislature reached a different policy judgment than it had in 2009. Rather, the natural inference is that the legislature intended to be more plain, the second time around, and avoid language that would invite disputes such as this.

We conclude that the exception to Retirement and Social Security Law article 22 contained in section 8 (L 2009, ch 504, part A) does not apply to the CBA at issue here, so that the noncontributory pension benefits to which firefighters were entitled pursuant to the CBA are prohibited by article 22, despite the Triborough Law. Therefore, the arbitration sought by the Union is barred, as an impermissible negotiation of pension benefits, by Civil Service Law § 201 (4) and Retirement and Social Security Law § 470.

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

Chief Judge Lippman (dissenting).

Because I believe the majority has disregarded the plain language of the exception to Retirement and Social Security Law article 22 contained in section 8 of the enacting legislation (L 2009, ch 504, part A) and incorrectly applied a bar to arbitration, I respectfully dissent.

Article 15 of the CBA between the City and the Union provides that the City shall pay the full cost of pension contributions to the New York State Police and Fire Retirement System (PFRS) for all members of the Union. Article 15 states, in relevant part,

“[m] embers shall be entitled, pursuant to existing State law . . . alternate optional retirement plans as follows: . . .
“[a] Twenty (20) year retirement plan as authorized by law with the City pay[ing] the complete cost of said pension plan . . . and . . .
“[a] Twenty-five (25) year retirement plan ... to be paid for in full by the City.”

Article 29 of the CBA sets forth that disputes between the parties are to be resolved through a multi-level grievance procedure, and unresolved grievances may be submitted for arbitration.

The majority errs in determining that the CBA was not “in effect” for purposes of article 22 of the Retirement and Social Security Law. Under the Triborough doctrine, it is improper for a public employer “to refuse to continue all the terms of an expired [employment] agreement until a new agreement is negotiated” (Civil Service Law § 209-a [1] [e]). Section 8 states that nothing in article 22 will prevent an employee from joining a special retirement plan pursuant to a CBA that is “in effect,” mirroring our Court’s language in Matter of Professional Staff Congress-City Univ. of N.Y. v New York State Pub. Empl. Relations Bd. (7 NY3d 458, 469 [2006]). This Court stated clearly in Matter of Professional Staff Congress that “all terms of a CBA remain in effect during collective bargaining of a successor agreement” (7 NY3d at 469 [emphasis added]). Consequently, when the Yonkers CBA expired in June 2009, the agreement between the City and the Union continued to be in effect until a new CBA was negotiated (see generally Association of Surrogates & Supreme Ct. Reporters Within City of N.Y. v State of New York, 79 NY2d 39, 45 [1992]).

It follows that the newly hired firefighters, who were employed under a CBA “in effect” within the meaning of well-known New York law, fall within the section 8 exception to the requirement of joining contributory retirement plans. Absent action by the legislature, the Court cannot ignore the provisions of the Triborough doctrine. The majority’s interpretation of the statute, in reality, does just that. Under section 8, employees covered by CBAs, which are “in effect” and offer noncontributory pension plans, have the option of participating in such plans. It was unnecessary for the legislature to invoke the Triborough doctrine explicitly in section 8, as the majority’s ruling suggests. The plain language of section 8 expresses the legislature’s intention, and the similarity between the wording in section 8 and Matter of Professional Staff Congress cannot be ascribed to mere coincidence.

Moreover, when the legislature revisited the pension contribution issue by creating tier 6 in March 2012, the drafters changed the statutory language and specified that the exception to the 3% contribution applied to “unexpired” CBAs (L 2012, ch 18, § 80). The legislature also stated in the tier 6 language that members who join PFRS after the effective date of the legislation are not authorized to participate in specified noncontributory retirement plans (id.). None of this language was included in article 22 of the Retirement and Social Security Law. The contrast between the tier 5 and tier 6 statutory language is compelling evidence that the two statutes must be interpreted differently.

The proviso in section 8, “that any such eligibility shall not apply upon termination of such agreement,” does not alter the analysis. Termination of a CBA is not the equivalent of expiration, and the legislature made clear with the tier 6 statutory language that they understood the term “expired” and its meaning. The “termination” language also does not render the “in effect” language meaningless, as they can and should be read together. The Governor’s 2009 Program Bill Memorandum, the only legislative history cited by the majority, in no way detracts from a harmonized view of these terms. It should be apparent, absent a strained interpretation inconsistent with the legislative language, that a terminated agreement under section 8 refers to an agreement that is superceded by a newly negotiated CBA. The majority’s interpretation incorrectly adds the term “unexpired” to the section 8 language and imposes the legislature’s newly created tier 6 rule on this earlier legislation.

While the controlling of governmental costs is a commendable aim, the majority’s interpretation of the statute is belied by the language of section 8, which must control. The stated concern that a union would refuse to reach agreement on a new CBA to allow its new membership to participate in noncontributory pension plans (under the Union’s interpretation of section 8) fails to accord with reality. This Court has previously explained in Matter of Professional Staff Congress that “[t]he concern that continuation of [a contract term] after expiration of a CBA will result in [the term being in effect] ‘in perpetuity’ is unfounded” because a party may propose that the term be amended to include a sunset clause or taken out during the course of future collective bargaining (7 NY3d at 469). Unmistakably, it is self-defeating for unions to forever defer negotiating new CBAs for the singular purpose of permitting its new members to participate in noncontributory pension plans.

Furthermore, in concluding that arbitration is barred by statute, the Court’s ruling fundamentally misconstrues the nature of the present dispute as one involving the negotiation of retirement benefits. The majority relies on Civil Service Law § 201 (4) and Retirement and Social Security Law § 470 for the proposition that arbitration is prohibited. Civil Service Law § 201 (4) states “benefits provided by or to be provided by a public retirement system” are not to be “negotiated pursuant to this article, and any benefits so negotiated shall be void.” Retirement and Social Security Law § 470 likewise conveys that “[c]hanges negotiated between any public employer and public employee . . . with respect to any benefit provided by or to be provided by a public retirement system . . . shall be prohibited.”

Here, the Union is seeking arbitration to interpret an existing CBA provision, not to negotiate the terms of retirement benefits. This Court concluded in Matter of City of Johnstown (Johnstown Police Benevolent Assn.) (99 NY2d 273, 279 [2002]) that a dispute over the computation of certain retirement benefits in an existing CBA was not a “negotiation of a provision of a CBA . . . , but the interpretation of a CBA provision.” The inclusion of the special noncontributory pension plans in article 15 of the CBA was negotiated in 2002, and there was no prohibition against negotiating over whether to provide those plans at the time (see Retirement and Social Security Law §§ 384-d, 384-e). The Union is simply asking for the Court to require the City to adhere to the terms of the CBA. Enforcing the agreement’s arbitration clause would not return the parties to the negotiation table. Today’s ruling circumvents the arbitration process and is contrary to this Court’s precedent which “has overwhelmingly rejected contentions by public employers that particular issues fall outside the scope of permissible grievance arbitration” (Matter of Board of Educ. of Watertown City School Dist. [Watertown Educ. Assn.], 93 NY2d 132, 138-139 [1999]).

Accordingly, because I believe the City and the Union should proceed to arbitration, I dissent and would reverse the order of the Appellate Division.

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

Order affirmed, with costs.

        See Matter of Triborough Bridge & Tunnel Auth. (District Council 37 & Local 1396, Am. Fedn. of State, County & Mun. Empls., AFL-CIO), 5 PERB ¶ 3037 (1972), confirming 5 PERB ¶ 4505 (1972); Matter of Professional Staff Congress-City Univ. of N.Y. v New York State Pub. Empl. Relations Bd., 7 NY3d 458, 466 (2006).

       The Union’s argument that preventing arbitration would be unconstitutional impairment of contract need not be reached under this analysis.