author: Rivera, J.

text:
    [22 NE3d 999, 998 NYS2d 131]
    Robert Davis et al., Appellants, v James Boeheim et al., Respondents.
    Argued September 9, 2014;
    decided October 21, 2014

      POINTS OF COUNSEL

      Cuti Hecker Wang LLP, New York City (Mariann Meier Wang of counsel), and Allred, Maroko & Goldberg, Los Angeles, California (Gloria Allred of counsel), for appellants.
    I. The governing standards of review were not applied. (Leon v Martinez, 84 NY2d 83; Silsdorf v Levine, 59 NY2d 8; 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144; Lawrence v Graubard Miller, 11 NY3d 588; Armstrong v Simon & Schuster, 85 NY2d 373; Thomas H. v Paul B., 18 NY3d 580; Gross v New York Times Co., 82 NY2d 146; November v Time Inc., 13 NY2d 175; Sweeney v Prisoners’ Legal Servs. of N.Y., 146 AD2d 1; Carney v Memorial Hosp. & Nursing Home of Greene County, 64 NY2d 770.) II. The plain text establishes that the challenged statements are provable statements of fact. (Thomas H. v Paul B., 18 NY3d 580; Alianza Dominicana, Inc. v Luna, 229 AD2d 328; Armstrong v Simon & Schuster, 85 NY2d 373; Gross v New York Times Co., 82 NY2d 146; Brach v Congregation Yetev Lev D’Satmar, 265 AD2d 360; Cappellino v Rite-Aid of N.Y., 152 AD2d 934; Kaminester v Weintraub, 131 AD2d 440; Petrus v Smith, 91 AD2d 1190; Mase v Reilly, 206 App Div 434; Celle v Filipino Reporter Enters. Inc., 209 F3d 163.) III. James Boeheim’s statements are actionable as mixed opinion. (Silsdorf v Levine, 59 NY2d 8; Gross v New York Times Co., 82 NY2d 146; Steinhilber v Alphonse, 68 NY2d 283; Chalpin v Amordian Press, 128 AD2d 81; Zulawski v Taylor, 63 AD3d 1552; Rossi v Attanasio, 48 AD3d 1025; Clark v Schuylerville Cent. School Dist., 24 AD3d 1162; Arts4All, Ltd. v Hancock, 5 AD3d 106; Gjonlekaj v Sot, 308 AD2d 471; Gisel v Clear Channel Communications, Inc., 94 AD3d 1525.) IV The context could have led a reasonable reader to conclude that James Boeheim’s statements were factual. (Mann v Abel, 10 NY3d 271; Brian v Richardson, 87 NY2d 46; Gross v New York Times Co., 82 NY2d 146; 600 W. 115th St. Corp. v Von Gutfeld, 80 NY2d 130; Immuno AG. v Moor-Jankowski, 77 NY2d 235; Steinhilber v Alphonse, 68 NY2d 283; Silsdorf v Levine, 59 NY2d 8; McNamee v Clemens, 762 F Supp 2d 584; Guerrero v Carva, 10 AD3d 105; Curry v Roman, 217 AD2d 314.)

      Debevoise & Plimpton LLP, New York City (Helen V. Cant-well, Mary Beth Hogan, Andrew M. Levine and Miranda H. Turner of counsel), Dinsmore & Shohl LLP, Pittsburgh, Pennsylvania (C. James Zeszutek of counsel), and Hancock Estabrook, LLP, Syracuse {Janet D. Callahan and Timothy P. Murphy of counsel), for respondents.
    I. Both lower courts applied the appropriate standard of review. (Armstrong v Simon & Schuster, 85 NY2d 373; Silsdorf v Levine, 59 NY2d 8; Biro v Condé Nast, 883 F Supp 2d 441; Goetz v Kunstler, 164 Misc 2d 557; Immuno AG. v Moor-Jankowski, 77 NY2d 235; Mann v Abel, 10 NY3d 271; Aronson v Wiersma, 65 NY2d 592; Leder v Spiegel, 31 AD3d 266, 9 NY3d 836; Lenz Hardware v Wilson, 94 NY2d 913; Golub v Enquirer/Star Group, 89 NY2d 1074.) II. As the Appellate Division properly concluded, the content of James Boeheim’s statements demonstrates that he was stating an opinion. (Mann v Abel, 10 NY3d 271; Gross v New York Times Co., 82 NY2d 146; Steinhilber v Alphonse, 68 NY2d 283; 600 W. 115th St. Corp. v Von Gutfeld, 80 NY2d 130; Varrenti v Gannett Co., Inc., 33 Misc 3d 405; Stroup v Nazzaro, 91 AD3d 1367; Ram v Moritt, 205 AD2d 516; Independent Living Aids, Inc. v Maxi-Aids, Inc., 981 F Supp 124; El-Amine v Avon Prods., 293 AD2d 283; Rizzuto v Nexxus Prods. Co., 641 F Supp 473.) III. The courts below correctly determined that the immediate and broader context of James Boeheim’s statements signaled to the reasonable reader that he was expressing constitutionally protected opinion. (Mann v Abel, 10 NY3d 271; Brian v Richardson, 87 NY2d 46; Gentile v Grand St. Med. Assoc., 79 AD3d 1351; Independent Living Aids, Inc. v Maxi-Aids, Inc., 981 F Supp 124; Goetz v Kunstler, 164 Misc 2d 557; McNamee v Clemens, 762 F Supp 2d 584; 600 W. 115th St. Corp. v Von Gutfeld, 80 NY2d 130; Immuno AG. v Moor-Jankowski, 77 NY2d 235; Steinhilber v Alphonse, 68 NY2d 283; Gross v New York Times Co., 82 NY2d 146.) IV James Boeheim’s statements, when taken as a whole and read in their full context, are not actionable as any type of mixed opinion. (Lapine v Seinfeld, 31 Misc 3d 736; Bruno v New York Daily News Co., 89 AD2d 260; Steinhilber v Alphonse, 68 NY2d 283; Gisel v Clear Channel Communications, Inc., 94 AD3d 1525; Zulawski v Taylor, 63 AD3d 1552;
      Rossi v Attanasio, 48 AD3d 1025; Chalpin v Amordian Press, 128 AD2d 81; McGill v Parker, 179 AD2d 98; OFSI Fund II, LLC v Canadian Imperial Bank of Commerce, 82 AD3d 537; Karaduman v Newsday, Inc., 51 NY2d 531.)
   OPINION OF THE COURT

Rivera, J.

On this appeal from a pre-answer dismissal of plaintiffs’ defamation action, we conclude that the challenged statements are reasonably susceptible of a defamatory connotation, and not otherwise privileged, nonactionable “pure opinion.” Therefore, we reverse the Appellate Division.

L

Plaintiffs Robert Davis and his stepbrother Michael Lang sued defendants Syracuse University and James Boeheim, the University’s head basketball coach, for defamation based on statements by Boeheim made in response to Davis’ and Lang’s allegations of sexual molestation by Bernie Fine, Boeheim’s longtime friend and the team’s associate head coach. Plaintiffs claimed that Fine used his position and authority within the University’s basketball program to gain access to and control over Davis and Lang for purposes of sexually molesting them.

According to plaintiffs, from the time Davis and Lang were children in the 1980s, Fine lured them with opportunities to attend the games and assist the team as “ball boys.” For years the sexual abuse continued, on and off campus, on team trips away from the University, in Fine’s car and in his home. Davis alleged that in his case the abuse continued for almost two decades, commencing when he was about 11 years old. Plaintiffs further alleged that Boeheim had observed Davis with Fine at practices, at games, and on trips with the team, including once in Fine’s hotel room during the 1987 NCAA Final Four.

The plaintiffs did not make their claims known or public until they were adults, years after the abuse ended. In 2002, Davis went to the Syracuse Police Department, but the Department failed to investigate or take any action on his allegations, informing him that the statute of limitations for child sexual abuse had expired. Davis decided to go to the media, and reported the abuse to the Syracuse Post-Standard, a daily newspaper servicing the Syracuse area, and ESPN, a national sports television channel. In 2003, ESPN interviewed Davis but failed to publicize his allegations.

In September 2005, Davis reported the sexual abuse to the University’s new Chancellor. At the University’s request, Davis met with a University lawyer and provided names of individuals who Davis claimed could corroborate his allegations of abuse. A few months later the University informed Davis by letter that it had concluded his allegations were unfounded and had closed the matter.

Plaintiffs’ claims became public in 2011 after unrelated allegations by other victims of sexual abuse surfaced against another coach at another well known university. In that year, similar claims surfaced of sexual abuse of multiple victims by former Penn State University assistant football coach Jerry Sandusky. As with the plaintiffs’ claims against Fine, the Penn State sexual abuse scandal involved allegations that Sandusky had used the University’s football program in order to gain access to underage victims. Penn State’s head football coach, Joe Paterno, was alleged to have covered up the abuse.

The Penn State scandal renewed national and local media interest in plaintiffs’ allegations. Within two weeks of the initial breaking news coverage of the Penn State story, and as the media focus on the Penn State allegations continued, ESPN issued a news report about the allegations against Fine. The story also relayed Davis’ statement that Boeheim saw Davis lying on Fine’s hotel room bed during the 1987 NCAA Final Four.

The day after the ESPN story, the University released a statement in which it described its 2005 four-month investigation into Davis’ allegations. The University stated that it had interviewed persons named by Davis, but was unable to corroborate the claims. The University further stated that it would have acted had it found any evidence or corroboration of the allegations in 2005.

The same day the ESPN story broke, and before the University’s statement went public, Boeheim issued a one-paragraph statement, released by the Syracuse University news service, in which he too announced that the University had investigated the allegations and had concluded they were unfounded. Boeheim further declared that “Bernie [Fine] has my full support,” and that he had known Fine for over 40 years and had “never seen or witnessed anything to suggest that [Fine] would be involved in any of the activities alleged.” Boeheim stated that if he had “seen or suspected anything, I would have taken action.”

Boeheim made several other statements to reporters, which were quoted in the print and online versions of the New York Times, on the Syracuse Post-Standard’s website Syracuse.com, on SportingNews.com, and on ESPN.com. In these statements, Boeheim reasserted his support for Fine and his denial of any knowledge of the claimed events as described by Davis. He also called Davis and Lang liars, and stated that their allegations were financially motivated.

Davis and Lang commenced this action against Boeheim and the University for defamation, claiming that several of Boeheim’s statements to ESPN, the Post-Standard, and the New York Times, were false and defamatory, and had caused them economic, emotional and reputational harm. The University and Boeheim filed a motion to dismiss pursuant to CPLR 3211 (a) (7), on the grounds that the statements were not defamatory as a matter of law because they constituted nonactionable opinion, not facts. Supreme Court granted the motion concluding that a reasonable reader would conclude that Boeheim’s statements were “a biased and personal opinion on the accusations against Bernie Fine, not fact.”

The Appellate Division affirmed in a split 3-2 decision. The majority concluded that although Boeheim’s statements that Davis fabricated allegations and was motivated by financial gain had certain factual elements, based on “the content of the communication as a whole, as well as its tone and apparent purpose,” and “the over-all context in which the assertions were made,” a reasonable reader would have believed that the challenged statements were conveying opinion and not facts (Davis v Boeheim, 110 AD3d 1431, 1432, 1433 [4th Dept 2013]). The dissent concluded that dismissal on a pre-answer motion to dismiss was error because Boeheim’s statements that Davis was lying about Fine to get money, and that he had done so in the past, constituted opinion that implies a basis in facts not disclosed to the reader or listener, and thus constituted actionable “mixed opinion.”

Davis and Lang contend that the Appellate Division erred because the complaint sufficiently pleads a cause of action for defamation against Boeheim and the University based on statements that are defamatory facts or, alternatively, mixed opinion. We agree the complaint is sufficient to survive the motion to dismiss, and reverse the Appellate Division.

IL

This appeal comes to us on a pre-answer motion to dismiss pursuant to CPLR 3211 (a) (7), a procedural posture which requires that “we accept as true each and every allegation made by plaintiff and limit our inquiry to the legal sufficiency of plaintiffs claim” (Silsdorf v Levine, 59 NY2d 8, 12 [1983]; see also Armstrong v Simon & Schuster, 85 NY2d 373, 379 [1995]). Unlike on a motion for summary judgment where the court “searches the record and assesses the sufficiency of the parties’ evidence,” on a motion to dismiss the court “merely examines the adequacy of the pleadings” (State of New York v Barclays Bank of N.Y., 151 AD2d 19, 21 [3d Dept 1989], affd 76 NY2d 533 [1990]). In determining the sufficiency of a defamation pleading, we consider “whether the contested statements are reasonably susceptible of a defamatory connotation” (Armstrong, 85 NY2d at 380, citing Weiner v Doubleday & Co., 74 NY2d 586, 592 [1989]). As we have previously stated, “[i]f, upon any reasonable view of the stated facts, plaintiff would be entitled to recovery for defamation, the complaint must be deemed to sufficiently state a cause of action” (Silsdorf, 59 NY2d at 12, citing 219 Broadway Corp. v Alexander’s, Inc., 46 NY2d 506, 509 [1979]). We apply this liberal standard fully aware that permitting litigation to proceed to discovery carries the risk of potentially chilling free speech, but do so because, as we have previously stated, “we recognize as well a plaintiffs right to seek redress, and not have the courthouse doors closed at the very inception of an action, where the pleading meets [the] minimal standard necessary to resist dismissal of [the] complaint” (Armstrong, 85 NY2d at 379).

In order for the challenged statements to be susceptible of a defamatory connotation, they must come within the well established categories of actionable communications. Thus, a false statement “that tends to expose a person to public contempt, hatred, ridicule, aversion or disgrace constitutes defamation” (Thomas H. v Paul B., 18 NY3d 580, 584 [2012]). “Since falsity is a necessary element of a defamation cause of action and only ‘facts’ are capable of being proven false, ‘. . . only statements alleging facts can properly be the subject of a defamation action’ ” (Gross v New York Times Co., 82 NY2d 146, 152-153 [1993], citing 600 W. 115th St. Corp. v Von Gutfeld, 80 NY2d 130, 139 [1992], and Immuno AG. v Moor-Jankowski, 77 NY2d 235, 254 [1991]).

A defamatory statement of fact is in contrast to “pure opinion” which under our laws is not actionable because “[expressions of opinion, as opposed to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation” (Mann v Abel, 10 NY3d 271, 276 [2008]). For, “[h]owever pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas” (Steinhilber v Alphonse, 68 NY2d 283, 289 [1986], citing Gertz v Robert Welch, Inc., 418 US 323, 339-340 [1974]). A pure opinion may take one of two forms. It may be “a statement of opinion which is accompanied by a recitation of the facts upon which it is based,” or it may be “[a]n opinion not accompanied by such a factual recitation” so long as “it does not imply that it is based upon undisclosed facts” (Steinhilber, 68 NY2d at 289, citing Ollman v Evans, 750 F2d 970, 976 [DC Cir 1984]).

While a pure opinion cannot be the subject of a defamation claim, an opinion that “implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it, ... is a ‘mixed opinion’ and is actionable” (Steinhilber, 68 NY2d at 289, citing Hotchner v Castillo-Puche, 551 F2d 910, 913 [2d Cir 1977], cert denied sub nom. Hotchner v Doubleday & Co., 434 US 834 [1977], and Cianci v New Times Pub. Co., 639 F2d 54, 64, 65 [2d Cir 1980]). This requirement that the facts upon which the opinion is based are known “ensure[s] that the reader has the opportunity to assess the basis upon which the opinion was reached in order to draw [the reader’s] own conclusions concerning its validity” (Silsdorf, 59 NY2d at 13-14). What differentiates an actionable mXed opinion from a privileged, pure opinion is “the implication that the speaker knows certain facts, unknown to [the] audience, which support [the speaker’s] opinion and are detrimental to the person” being discussed (Steinhilber, 68 NY2d at 290, citing Rand v New York Times Co., 75 AD2d 417, 422 [1980], and Silsdorf, 59 NY2d at 14).

Distinguishing between fact and opinion is a question of law for the courts, to be decided based on “what the average person hearing or reading the communication would take it to mean” (Steinhilber, 68 NY2d at 290; Mann, 10 NY3d at 276 [“(w)hether a particular statement constitutes an opinion or an objective fact is a question of law”], citing Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 381 [1977], cert denied 434 US 969 [1977]). “The dispositive inquiry ... is ‘whether a reasonable [reader] could have concluded that [the statements were] conveying facts about the plaintiff’ (Gross, 82 NY2d at 152, citing 600 W. 115th St. Corp., 80 NY2d at 139).

We apply three factors in determining whether a reasonable reader would consider the statement connotes fact or nonactionable opinion:

“(1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to signal . . . readers or listeners that what is being read or heard is likely to be opinion, not fact” (Mann, 10 NY3d at 276, quoting Brian v Richardson, 87 NY2d 46, 51 [1995]).

The third factor “lends both depth and difficulty to the analysis” (Brian, 87 NY2d at 51), and requires that the court consider the content of the communication as a whole, its tone and apparent purpose (Brian, 87 NY2d at 51; Mann, 10 NY3d at 276, quoting Brian, 87 NY2d at 51). Thus, we have adopted a holistic approach to this inquiry.

“Rather than sifting through a communication for the purpose of isolating and identifying assertions of fact, the court should look to the over-all context in which the assertions were made and determine on that basis ‘whether the reasonable reader would have believed that the challenged statements were conveying facts about the . . . plaintiff ” (Brian, 87 NY2d at 51, citing Immuno AG., 77 NY2d at 254, and Steinhilber, 68 NY2d at 293; Mann, 10 NY3d at 276, quoting Brian, 87 NY2d at 51).

Ill

In their complaint, Davis and Lang alleged that Boeheim made defamatory statements that they were liars seeking money. In support of their claim, they identified quotes from Boeheim in which he stated:

1. “This is alleged to have occurred . . . what? Twenty years ago? Am I in the right neighborhood? ... So we are supposed to do what? Stop the presses 26 years later? For a false allegation? For what I absolutely believe is a false allegation? I know [Davis is] lying about me seeing him in his hotel room. That’s a lie. If he’s going to tell one lie, I’m sure there’s a few more of them.”
2. “The Penn State thing came out and the kid behind this is trying to get money. He’s tried before. And now he’s trying again. . . . That’s what this is about. Money.”
3. “It is a bunch of a thousand lies that [Davis] has told. . . . He supplied four names to the university that would corroborate his story. Noné of them did . . . there is only one side to this story. He is lying.” Boeheim continued, “I believe they saw what happened at Penn State, and they are using ESPN to get money. That is what I believe.”
4. “You don’t think it is a little funny that his cousin (relative) is coming forward?”
5. Boeheim stated that the timing of Lang’s decision to speak out about his abuse seemed “a little suspicious.”

Applying the aforementioned principles to this case, the first and second factors weigh in favor of finding that Boeheim’s statements were factual assertions. With respect to the first factor, Boeheim used specific, easily understood language to communicate that Davis and Lang lied, their motive was financial gain, and Davis had made prior similar statements for the same reason. These are clear statements of the plaintiffs’ actions and the driving force for their allegations against Fine. Consideration of the second factor similarly weighs in favor of treating Boeheim’s statements as factual because the statements are capable of being proven true or false, as they concern whether plaintiffs made false sexual abuse allegations against Fine in order to get money, and whether Davis had made false statements in the past (see McNamee v Clemens, 762 F Supp 2d 584, 601 [ED NY 2011] [distinguishing general denials of accusations from specific statements that accuser “will be proven a liar and has lied in front of members of Congress” and holding the latter actionable]). Moreover, they were not “rhetorical hyperbole rather than objective fact” (Ram v Moritt, 205 AD2d 516, 517 [2d Dept 1994]; see also Independent Living Aids, Inc. v Maxi-Aids, Inc., 981 F Supp 124, 128 [ED NY 1997] [epithet “liar,” in context, where it reflects a mere denial of accusations, was personal opinion and rhetorical hyperbole]). Our inquiry, however, does not rest on these two factors because the third factor in the analysis “is often the key consideration in categorizing a statement as fact or opinion” (Thomas H., 18 NY3d at 585, citing Immuno AG., 77 NY2d at 254). It is this third factor that the parties vigorously dispute, and which we conclude establishes the sufficiency of plaintiffs’ complaint.

Defendants contend that the context in which the statements were made leads inexorably to the conclusion that Boeheim’s statements are nonactionable pure opinion. They argue that a reader would consider Boeheim’s statements as an obvious and transparent effort to defend his longtime close friend and colleague against allegations of sexual abuse, as well as an effort to defend against suggestions that Boeheim knew about the alleged abuse and did nothing. They further argue that he specifically denied any special knowledge when he stated, “I know nothing” and “I really don’t have any facts.”

Essentially, defendants argue that because a reader could interpret the statement as pure opinion, the statement is as a consequence, nonactionable and was properly dismissed under CPLR 3211 (a) (7). However, on a motion to dismiss we consider whether any reading of the complaint supports the defamation claim. Thus, although “[i]t may well be that [the challenged statements] are subject to defendants’ interpretation . . . the motion to dismiss must be denied if the communication at issue, taking the words in their ordinary meaning and in context, is also susceptible to a defamatory connotation” (Sweeney v Prisoners’ Legal Servs. of N.Y., 146 AD2d 1, 4 [3d Dept 1989], citing Carney v Memorial Hosp. & Nursing Home of Greene County, 64 NY2d 770, 772 [1985], and Silsdorf, 59 NY2d at 12-13). We find this complaint to meet this minimum pleading requirement.

Here, Boeheim stated that Davis and Lang lied and did so for monetary gain, and that Davis had done so in the past. Boeheim’s assertions that Davis previously made the same claims, for the same purpose, communicated that Boeheim was relying on undisclosed facts that would justify Boeheim’s statements that Davis and Lang were neither credible nor victims of sexual abuse. That, as defendants argue, Boeheim denied knowledge of facts, or prefaced some statements by saying “I believe,” is insufficient to transform his statements into nonactionable pure opinion, because in context, a reasonable reader could view his statements as supported by undisclosed facts despite these denials (Thomas H., 18 NY3d at 586).

The context further suggests to the reader that Boeheim spoke with authority, and that his statements were based on facts. Boeheim was a well respected, exalted member of the University and the Syracuse community-at-large, and as head coach of the team appeared well placed to have information about the charges. Boeheim’s initial statement, which contained information about the University’s investigation, was released on the school’s website, confirming his status within the University. His statement contained information about Davis’ allegations and the University’s investigation, which a reader could understand was based on Boeheim’s access to factual details unavailable to the public, facts which supported his assertions about Davis and his motive. That Boeheim’s statement was issued prior to the University’s first public statement about the investigation, further suggests that Boeheim had access to otherwise confidential information. Moreover, Boeheim worked with Fine for many years and claimed to “know” Davis from when Davis was a child assisting the team and serving as a babysitter, further suggesting that Boeheim had particular details upon which he relied in asserting that the allegations were untrue. In addition, Boeheim knowingly made these statements to reporters during the media investigation and coverage of the plaintiffs’ allegations. Those statements were then published in news-related articles that described the allegations, comparing them to the Penn State victims’ claims, and discussing the impact of the sexual abuse charges on the individuals involved. Although the placement of the articles is but one factor to be considered, because the articles cited by plaintiffs cannot be categorized as op-eds or letters to the editor, “the common expectations that apply to those more opinionated journalistic endeavors were inapplicable here (see, Immuno AG. v Moor-Jankowski, supra). Thus, the circumstances under which these accusations were published ‘encourag[ed] the reasonable reader to be less skeptical and more willing to conclude that [they] stat[ed] or impl[ied] facts’ ” (Gross, 82 NY2d at 156, quoting 600 W. 115th St. Corp., 80 NY2d at 142).

m

At this early stage of the litigation, on this pre-answer motion to dismiss and on the record before us, we cannot state as a matter of law that the statements are pure opinion. There is a reasonable view of the claims upon which Davis and Lang would be entitled to recover for defamation; therefore the complaint must be deemed to sufficiently state a cause of action (Silsdorf, 59 NY2d at 12). Accordingly, the Appellate Division order should be reversed, with costs, and the motion to dismiss the complaint denied.

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

Order reversed, with costs, and defendants’ motion to dismiss the complaint denied.

       Based on our conclusion that the complaint sufficiently states a claim for defamation, we need not address whether plaintiffs’ alternative theory of mixed opinion based on distorted facts was preserved below and properly before us.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    [22 NE3d 1018, 998 NYS2d 150]
    In the Matter of New York City Asbestos Litigation. Mary Andrucki, Individually and as Administratix of the Estate of George P. Andrucki, Deceased, Appellants, v Aluminum Company of America et al., Defendants, and Port Authority of New York and New Jersey, Respondent.
    Argued October 15, 2014;
    decided November 20, 2014

      POINTS OF COUNSEL

      Weitz & Luxenberg, P.C., New York City (Alani Golanski and Daniel T. Horner of counsel), for appellants.
    I. The First Department’s ruling conflicts with long-settled law in New York that, for notice of claim purposes, the wrongful death action is a mere continuation of the main action previously noticed. (Holmes v City of New York, 269 App Div 95, 295 NY 615; Mingone v State of New York, 100 AD2d 897; Billman v City of Port Jervis, 23 Misc 3d 1127[A], 2009 NY Slip Op 50957[U]; Moore v Melesky, 14 AD3d 757; Jae Woo Yoo v New York City Health & Hosps. Corp., 239 AD2d 267; Wieder v New York City Health & Hosps. Corp., 183 AD2d 677; Mack v City of New York, 265 AD2d 308; Matter of Scheel v City of Syracuse, 97 AD2d 978; Caffaro v Trayna, 35 NY2d 245; Shea v Incorporated Vil. of Head of Harbor, 180 AD2d 675.) II. The First Department erred in concluding that strict construction of the suability statute somehow negated the “so far as then practicable” language characterizing the statute’s notice of claim requirements. (Holmes v City of New York, 269 App Div 95, 295 NY 615; Mingone v State of New York, 100 AD2d 897; Luciano v Fanberg Realty Co., 102 AD2d 94; Port Auth. of N.Y. & N.J. v Barry, 15 Misc 3d 36; Ofulue v Port Auth. of N.Y. & N.J., 307 AD2d 258; Lyons v Port Auth. of N.Y. & N.J., 228 AD2d 250; Miller v City of New York, 187 Misc 926; Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539; Giannone v Port Auth. of N.Y. & N.J., 127 AD2d 818; Patel v Port Auth. of N.Y. & N.J., 184 AD2d 235.) III. The trial court providently exercised its discretion in granting plaintiffs motion for a default judgment. (Koppell Riv. Realty, Inc. v Rodriguez, 85 AD3d 520; Wilf v Halpern, 234 AD2d 154; Holtz v Wilson, 155 AD2d 803; 300 W. 46th St. Corp. v Clinton Hous. W. 46th St. Partners, L.P., 19 AD3d 136; Lounsbury v Kiehl, 255 AD2d 774; Statom v Lumbermens Mut. Cas. Co., 106 Misc 2d 442; Penn v Amchem Prods., 85 AD3d 475.)

      Segal McCambridge Singer & Mahoney, Ltd., New York City 0Christian H. Gannon, David S. Kostus and Kevin W. Turbert of counsel), for respondent.
    I. The First Department correctly found subject matter jurisdiction lacking. (Hess v Port Authority Trans-Hudson Corporation, 513 US 30; Schillinger v United States, 155 US 163; Lyons v Port Auth. of N.Y. & N.J., 228 AD2d 250; Giannone v Port Auth. of N.Y. & N.J., 127 AD2d 818; Luciano v Fanberg Realty Co., 102 AD2d 94; City of New York v Port Auth. of N.Y. & N.J., 284 AD2d 195.) II. Plaintiff misreads the suability statute and mischaracterizes its legislative history. (Luciano v Fanberg Realty Co., 102 AD2d 94; Patel v Port Auth. of N.Y. & N.J., 184 AD2d 235; Port Auth. of N.Y. & N.J. v Barry, 15 Misc 3d 36; Megrant Props. v Port Auth. of N.Y. & N.J., 191 Misc 2d 334; Tyrrell v Mayor of City of N.Y., 159 NY 239; City of New York v Globe Neon Tube Corp., 147 Misc 515; Matter of Bickerton v New York Theatre Co., 232 NY 1; Tarbell v Ogdensburg Bridge & Port Auth., 23 AD2d 447.) III. As a bistate entity created in concert by the states of New York and New Jersey as well as Congress, the Port Authority cannot have its laws unilaterally changed by a compact state. (Hess v Port Authority Trans-Hudson Corporation, 513 US 30; Rose v Port Auth. of N.Y. & N.J., 13 F Supp 2d 516; Matter of Agesen v Catherwood, 26 NY2d 521; Matter of Malverty v Waterfront Commn. of N.Y. Harbor, 71 NY2d 977; Bailey v Port Auth. of N.Y. & N.J., 216 AD2d 42; Evans v Port Auth. of N.Y. & N.J., 192 F Supp 2d 247; Vernon v Port Auth. of N.Y. & N.J., 154 F Supp 2d 844; Dezaio v Port Auth. of N.Y. & N.J., 205 F3d 62.) IV Despite plaintiffs contentions, New Jersey law is generally not binding on the New York courts. (Rao v Port of N.Y. Auth., 122 F Supp 595; Schillinger v United States, 155 US 163; Trippe v Port of N.Y. Auth., 14 NY2d 119; Yonkers Contr. Co. v Port Auth. Trans-Hudson Corp., 93 NY2d 375; Erie R. Co. v Tompkins, 304 US 64; Lyons v Port Auth. of N.Y. & N.J., 228 AD2d 250.) V Plaintiff’s original notice of claim cannot be used for the amended complaint under New York law. (Holmes v City of New York, 269 App Div 95; Mingone v State of New York, 100 AD2d 897; Matter of Scheel v City of Syracuse, 97 AD2d 978; MacDonald v City of Beacon, 269 App Div 754; Aristide v City of New York, 129 Misc 2d 483; Gonzalez v New York City Hous. Auth., 77 NY2d 663; Matter of Miller, 158 Misc 775.) VI. Plaintiff’s argument regarding the default judgment entered below is without merit.
   OPINION OF THE COURT

Smith, J.

A statute requires anyone who brings a lawsuit against the Port Authority of New York and New Jersey first to serve a notice stating the nature of the claim. We hold that under this statute a notice of a claim for personal injuries is a sufficient notice of a claim for wrongful death, where the person injured dies of his injuries between the service of the notice of claim and the beginning of the lawsuit.

I

The Port Authority was created in 1921 by a bistate compact between New York and New Jersey. As an agency of two sovereign states, it cannot be sued without a waiver of sovereign immunity. Such a waiver was enacted by both states’ legislatures in 1950. The New York version of the legislation is found in sections 7101 through 7112 of McKinney’s Unconsolidated Laws of NY (L 1950, ch 301, §§ 1-12).

Unconsolidated Laws § 7101 says that consent to suit against the Port Authority is given by New York “[u]pon the concurrence of the state of New Jersey.” Sections 7102 through 7105 state exceptions to the consent that are not relevant here, and sections 7106 and 7107 state conditions to the consent. The condition at issue in this case is in section 7107, which says in relevant part:

“The foregoing consent is granted upon the condition that any suit, action or proceeding prosecuted or maintained under this act shall be commenced within one year after the cause of action therefor shall have accrued, and upon the further condition that in the case of any suit, action or proceeding for the recovery or payment of money, prosecuted or maintained under this act, a notice of claim shall have been served upon the port authority by or on behalf of the plaintiff or plaintiffs at least sixty days before such suit, action or proceeding is commenced” (emphasis added).

The contents of a notice of claim are specified in section 7108:

“The notice of claim required by section [7107] shall be in writing, sworn to by or on behalf of the claimant or claimants, and shall set forth (1) the name and post office address of each claimant and of his attorney, if any, (2) the nature of the claim, (3) the time when, the place where and the manner in which the claim arose, and (4) the items of damage or injuries claimed to have been sustained so far as then practicable.”

II

George Andrucki, a sheet metal worker, was exposed to asbestos in the course of work on a number of projects, including the construction of the Port Authority’s World Trade Center in the early 1970s. Many years later, he was diagnosed with mesothelioma, allegedly a result of asbestos exposure. He received the diagnosis in late April of 2010, and it is undisputed that that is when Andrucki’s claim against the Port Authority accrued.

On October 4, 2010, Andrucki and his wife served on the Port Authority a “Notice of Claim for Personal Injury from Asbestos.” The notice briefly described Andrucki’s exposure to asbestos, and said that he was suffering from malignant mesothelioma and that plaintiffs had incurred physical and emotional injuries, medical expenses and loss of companionship and consortium. The following day, the Andruckis filed a lawsuit naming 17 defendants, including the Port Authority. It is undisputed that as to the Port Authority this October 5 filing was premature and may be treated as a nullity, because under Unconsolidated Laws § 7107 60 days must elapse between the notice of claim and the commencement of suit.

Andrucki died on November 27, 2010, and his widow became his administratrix. She did not serve a new notice of claim, but amended the existing complaint to substitute herself for her husband as a plaintiff. The amended complaint continued Andrucki’s personal injury action, which became a so-called “survivorship” claim for damages incurred in his lifetime (see EPTL 11-3.2 [b]), and added a claim for wrongful death. On January 18, 2011, Mrs. Andrucki filed a supplemental summons to add the Port Authority as a defendant in the lawsuit.

The Port Authority moved to dismiss the claims against it, asserting that plaintiffs (Mrs. Andrucki as administratrix and individually) had “failed to satisfy the conditions precedent” to the bringing of the action, “thus denying the Court subject matter jurisdiction.” The motion had not been decided when the case came on for trial and the Port Authority, relying on its view that the court lacked jurisdiction, chose not to participate in the trial. After trial, Supreme Court denied the motion to dismiss and entered a default judgment against the Port Authority.

The Appellate Division reversed, holding that “plaintiffs should have served on the Port Authority a new notice of claim concerning the wrongful death and survivorship actions” (Matter of New York City Asbestos Litig., 106 AD3d 617, 619 [1st Dept 2013]). We granted leave to appeal (21 NY3d 865 [2013]) and now reverse.

m

It is not disputed that the notice of claim at issue here would have been valid as to a personal injury case filed in Andrucki’s lifetime. The issue is whether Andrucki’s death required service of a new notice. We hold that it did not.

A similar issue was presented in Holmes v City of New York (269 App Div 95 [1945], affd without op 295 NY 615 [1945]), a case involving a notice of a claim against the City of New York filed pursuant to then Administrative Code of the City of New York § 394a-1.0 (c). In Holmes, the Appellate Division held that “an administrator can have the benefit of a notice of claim and intention to sue a municipality which was filed by his intestate prior to her death” (269 App Div at 96), and we affirmed. The Appellate Division reasoned that the wrongful death action was in substance “a continuation of the original cause of action” for personal injuries (269 App Div at 98). Plaintiffs assert that Holmes controls this case.

The Port Authority asks us to distinguish Holmes on the ground that the notice of claim requirement at issue here, unlike the one in Holmes, is a condition attached to a waiver of sovereign immunity. Because the relevant statute limits the jurisdiction of the courts, the Port Authority argues that the doctrine of “substantial compliance,” which it says is the basis for the Holmes decision, may not be invoked. Although the New Jersey Supreme Court, interpreting New Jersey Statutes Annotated § 32:1-164, which is identical in wording to Unconsolidated Laws § 7108, has embraced the doctrine of substantial compliance (Zamel v Port of New York Authority, 56 NJ 1, 264 A2d 201 [1970]), the Port Authority says that New York courts take a stricter approach. In response, plaintiffs argue that we should conform our interpretation to New Jersey’s because the two states of which the Port Authority is an agency should interpret the statutes governing suits against the agency in the same way.

The Port Authority’s argument finds some support in our decisions involving suits against the State under the Court of Claims Act. We have repeatedly held that “[b]ecause suits against the State are allowed only by the State’s waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed” (Kolnacki v State of New York, 8 NY3d 277, 280 [2007], quoting Lichtenstein v State of New York, 93 NY2d 911, 913 [1999]; see also Lepkowski v State of New York, 1 NY3d 201, 206-207 [2003], and earlier cases). We do not retreat from these holdings; nor do we imply that we would necessarily adopt in every case against the Port Authority the “substantial compliance” approach of the New Jersey court in Zamel. Plaintiffs are correct, however, in saying that consistency between the two states’ interpretations, where possible, is desirable, and we conclude that our precedents do not require us to hold this notice of claim insufficient.

Lepkowski and Kolnacki dismissed claims against the State for failure to comply with Court of Claims Act § 11 (b), which requires a claimant against the State to specify in a notice of claim the time and place where the claim arose, the items of damage or injuries allegedly sustained, and the total sum claimed. The notices in those cases did not contain that information. The claims in Lepkowski identified no specific times, places or amounts (see 1 NY3d at 207-208), and the Kolnacki claim was similarly deficient as to the amount; it alleged that “[t]he full extent of claimant’s injuries [is] not yet known,” and failed to provide “any estimate whatsoever” (see 8 NY3d at 279, 281).

Here, the relevant statutory requirements are that a notice must specify the claimant, the time and place where the claim arose, the nature of the claim, and “so far as then practicable” the items of damage or injuries sustained (see Uncons Laws § 7108 [quoted above at 279]). Those requirements were sufficiently met by the explanation in Andrucki’s notice of claim that he had contracted malignant mesothelioma as a result of his exposure to asbestos on the World Trade Center site in the early 1970s, and suffered physical and emotional injuries and incurred medical expenses as a result. This information was definite enough to fulfill the purpose of the notice of claim requirement: to allow the State to investigate the claim and to estimate its potential liability. It is hard to see how a later notice adding the information that the claimant had died of his disease could have been necessary to an investigation.

The Port Authority relies on the Appellate Division’s decisions in Luciano v Fanberg Realty Co. (102 AD2d 94 [1st Dept 1984]) and Lyons v Port Auth. of N.Y. & N.J. (228 AD2d 250 [1st Dept 1996]). We do not question the correctness of those decisions, but they do not support the Port Authority’s position here. In both Luciano and Lyons, the plaintiffs had violated the time requirements of Unconsolidated Laws § 7107. In Luciano, the plaintiff had let the time for filing a notice of claim run, then brought a lawsuit and sought to file a notice of claim nunc pro tunc. In Lyons, the plaintiff failed to allow the required 60 days between the notice of claim and the commencement of the action. The time requirements that the plaintiffs in those cases ignored are the core of the statute. By contrast, the difference between a notice of claim labeled “personal injury” and one labeled “wrongful death” is, under the circumstances of this case, essentially a formality.

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

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

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


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

text:
    [22 NE3d 1012, 998 NYS2d 144]
    Matter of Mary Veronica Santiago-Monteverde, Debtor. Mary Veronica Santiago-Monteverde, Appellant, v John S. Pereira, Chapter 7 Trustee, Respondent.
    Argued October 14, 2014;
    decided November 20, 2014

      POINTS OF COUNSEL

      Ronald J. Mann, of the Texas bar, admitted pro hac vice, and Kathleen G. Cully PLLC, New York City (Kathleen G. Cully of counsel), for appellant.
    I. The rent-stabilization program implements crucial local policies to protect New York City residents. (Matter of Park W. Vil. v Lewis, 62 NY2d 431; Manocherian v Lenox Hill Hosp., 84 NY2d 385; Federal Home Loan Mtge. Corp. v New York State Div. of Hous. & Community Renewal, 87 NY2d 325; Braschi v Stahl Assoc. Co., 74 NY2d 201; Marigo Corp. v Lavian, 277 AD2d 148; Rima 106 v Alvarez, 257 AD2d 201; Matter of Viemeister, 179 NY 235.) II. The rent-stabilization program provides a “local public assistance benefit.” (Matter of State of New York v John S., 23 NY3d 326; Matter of Tall Trees Constr. Corp. v Zoning Bd. of Appeals of Town of Huntington, 97 NY2d 86; Chatham Phenix Natl. Bank v Crosney, 251 NY 189; Schwartz v Holzman, 69 F2d 814; In re Keil, 88 F2d 7; KLC, Inc. v Trayner, 426 F3d 172; Manocherian v Lenox Hill Hosp., 84 NY2d 385; Braschi v Stahl Assoc. Co., 74 NY2d 201;
      People v Widmer, 137 AD2d 929.) III. It would be incongruous to permit creditors to profit from the interest in a rent-stabilized lease of a tenant in bankruptcy when they cannot reach that interest under state law. (Marigo Corp. v Lavian, 277 AD2d 148; Braschi v Stahl Assoc. Co., 74 NY2d 201; Kashi v Gratsos, 712 F Supp 23.)

      Troutman Sanders LLP, New York City (J. David Dantzler, Jr., John P. Campo and Matthew DeFrancesco of counsel), for respondent.
    I. A pending amendment to Debtor and Creditor Law § 282 seeks to exempt rent-stabilized leases from a debtor’s bankruptcy assets, illustrating that the New York State Legislature did not intend to exempt such assets under the current version of Debtor and Creditor Law § 282 (2). II. The only legislative intent that is relevant to interpreting the term “local public assistance benefit” is that of Debtor and Creditor Law § 282 (2), the statute containing the disputed term. (Manocherian v Lenox Hill Hosp., 84 NY2d 385; Fort Stewart Schools v FLRA, 495 US 641; Braschi v Stahl Assoc. Co., 74 NY2d 201; Riley v County of Broome, 95 NY2d 455.) III. Both the actual meaning of the phrase “public assistance,” as well as the application of the traditional canons of statutory construction support the lower court’s conclusion that a rent-regulated lease would not constitute a “local public assistance benefit.” (Matter of Kese Indus. v Roslyn Torah Found., 15 NY3d 485; National Football League v Vigilant Ins. Co., 36 AD3d 207; Matter of Howard v Wyman, 28 NY2d 434; People v Shapiro, 50 NY2d 747; Barsh v Town of Union, 126 AD2d 311; Miranda v Norstar Bldg. Corp., 79 AD3d 42; Team Mktg. USA Corp. v Power Pact, LLC, 41 AD3d 939; Uribe v Merchants Bank of N.Y., 91 NY2d 336; Matter of Hoerger v Spota, 109 AD3d 564, 21 NY3d 549; Matter of Calenzo v Shah, 112 AD3d 709.)

      Eric T. Schneiderman, Attorney General, New York City (Anisha S. Dasgupta, Barbara D. Underwood and Andrew Kent of counsel), and Zachary W. Carter, Corporation Counsel, New York City (Richard Hearing and Susan P. Greenberg of counsel), for State of New York and another, amici curiae.
    I. State law plays an important role in the bankruptcy process. (Central Va. Community College v Katz, 546 US 356; Butner v United States, 440 US 48.) II. State law does not create any monetizable property interest in the circumvention of rent stabilization laws. (Barnhill v Johnson, 503 US 393; Butner v United States, 440 US 48; In re Ground Round, Inc., 482 F3d 15; In re Nejberger, 934 F2d 1300; In re Barnes, 276 F3d 927; In re Sanders, 969 F2d 591;
      Matter of Murphy v New York State Div. of Hous. & Community Renewal, 21 NY3d 649; Riverside Syndicate, Inc. v Munroe, 10 NY3d 18; Thornton v Baron, 5 NY3d 175; Draper v Georgia Props., 230 AD2d 455, 94 NY2d 809.) III. Rent stabilization rights qualify for exemption from the bankruptcy estate under Debtor and Creditor Law § 282 (2). (Matter of Tonis v Board of Regents of Univ. of State of N.Y., 295 NY 286; Yates County Natl. Bank v Carpenter, 119 NY 550; Surace v Danna, 248 NY 18; Matter of Genesee Val. Trust Co. v Glazer, 295 NY 219; Tillotson v Wolcott, 48 NY 188; Tierney v Dowd & Co., 238 NY 282; Pierson v City of New York, 56 NY2d 950; Clark v Cuomo, 66 NY2d 185; Brooklyn Union Gas Co. v New York State Human Rights Appeal Bd., 41 NY2d 84; Matter of Badem Bldgs. v Abrams, 70 NY2d 45.) IV Mary Santiago-Monteverde’s senior citizen rent increase exemption benefits are plainly exempt under Debtor and Creditor Law § 282 (2). (Nunez v Giuliani, 91 NY2d 935.)

      Latham & Watkins LLP, New York City {Christopher R. Harris and Jennifer Greenberg of counsel), for New York State Senator Brad Hoylman and others, amici curiae.
    I. Allowing Chapter 7 trustees to sell rent-stabilized leases would contradict the intent behind New York’s rent stabilization program by eliminating a critical protection for lower-income residents and exacerbating the shortage of affordable housing. (8200 Realty Corp. v Lindsay, 27 NY2d 124; Local Loan Co. v Hunt, 292 US 234.) II. If rent-stabilized rights are property, they are exempt under Debtor and Creditor Law § 282 (2) because they are not subject to execution under CPLR 5201. (Kashi v Gratsos, 712 F Supp 23; ABKCO Indus. v Apple Films, 39 NY2d 670; Butner v United States, 440 US 48; Marigo Corp. v Lavian, 277 AD2d 148; Rima 106 v Alvarez, 257 AD2d 201.) III. This Court should not permit bankruptcy trustees and creditors to sell consumer protections that the New York State Legislature has provided for affordable housing. (Butner v United States, 440 US 48; BFP v Resolution Trust Corporation, 511 US 531.)

      Thompson & Knight LLP, New York City {Ira L. Herman of counsel), for New York City Bankruptcy Assistance Project and another, amici curiae.
    The New York rent stabilization regime provides the lawful occupant(s) of an apartment with occupancy, renewal and succession rights that may not be monetized by a bankruptcy trustee. (Cudar v Cudar, 98 AD3d 27; Kashi v Gratsos, 712 F Supp 23; ABKCO Indus. v Apple Films, 39 NY2d 670; Resolution Trust Corp. v Diamond, 45 F3d 665; Evans v Schneider, 183 Misc 2d 114; Baginski v Lysiak, 154 Misc 2d 275; NLRB

      v Bildisco & Bildisco, 465 US 513; Aguaiza v Vantage Props., LLC, 2009 NY Slip Op 31144[U]; Integrated Solutions, Inc. v Service Support Specialties, Inc., 124 F3d 487; Reid v DDEH 103 E. 102 LLC, 20 Misc 3d 1139[A], 2008 NY Slip Op 51798[U].)
   OPINION OF THE COURT

Abdus-Salaam, J.

The United States Court of Appeals for the Second Circuit has certified a question to this Court which requires us to resolve the following issue: May a bankruptcy debtor’s interest in her rent-stabilized lease be exempted from her bankruptcy estate pursuant to New York State Debtor and Creditor Law § 282 (2) as a “local public assistance benefit?” We hold that section 282 (2) of the Debtor and Creditor Law exempts a debtor-tenant’s interest in a rent-stabilized lease.

L

The debtor Mary Santiago-Monteverde has lived in her apartment at 199 E. 7th Street in Manhattan for over 40 years. The apartment is rent-stabilized. After her husband died in June 2011, Santiago-Monteverde was unable to pay her credit card debts of approximately $23,000 and filed for Chapter 7 bankruptcy. During the pendency of the bankruptcy proceedings, she remained current on her rent obligations. She initially listed her apartment lease on schedule G of her bankruptcy petition as a standard unexpired lease. Shortly thereafter, the owner of the apartment approached the bankruptcy trustee, respondent John S. Pereira, and offered to buy Santiago-Monteverde’s interest in the lease. When the trustee advised her that he planned to accept the offer, she amended her filing to list the value of her lease on schedule B as personal property exempt from the bankruptcy estate under Debtor and Creditor Law § 282 (2) as a “local public assistance benefit.”

The Bankruptcy Court granted the trustee’s motion to strike the claimed exemption on the ground that the value of the lease did not qualify as an exempt “local public assistance benefit” (In re Santiago-Monteverde, 466 BR 621, 622 [SD NY 2012]). The court noted that Santiago-Monteverde’s counsel did not dispute “that a rent-stabilized lease is property of the estate and that the Trustee may ‘assume or reject any executory contract or unexpired lease of the debtor’ ” (id., citing 11 USC § 365). The court reasoned that “[the] benefit of paying below market rent ... is not a ‘public assistance benefit’ that is entitled to any exemption in bankruptcy” and that the benefit “is a quirk of the regulatory scheme in the New York housing market, not an individual entitlement” (id. at 625).

The District Court affirmed the Bankruptcy Court (In re Santiago-Monteverde, 2012 WL 3966335, 2012 US Dist LEXIS 129481 [SD NY, Sept. 10, 2012, Castel, J., No. 12 Civ 4238(PKC)]), holding that “the value in securing a lawful termination of the rent-stabilized lease ... is a collateral consequence of the regulatory scheme and not a local public assistance benefit’ ” (2012 WL 3966335, *2, 2012 US Dist LEXIS 129481, *4).

On appeal to the Second Circuit, Santiago-Monteverde argued that “the lease (or its value) is a local public assistance benefit’ because the value of the lease (in whole or in part) is traceable to the protections afforded to her under the [Rent Stabilization Code]” (747 F3d 153, 157 [2d Cir 2014]). Recognizing that this argument raises an open issue of New York law, the Second Circuit certified the following question to this Court: “Whether a debtor-tenant possesses a property interest in the protected value of her rent-stabilized lease that may be exempted from her bankruptcy estate pursuant to New York State Debtor and Creditor Law Section 282(2) as a local public assistance benefit’?” (id. at 159).

IL

The Bankruptcy Code authorizes a bankruptcy trustee to “assume or reject any . . . unexpired lease of the debtor” (11 USC § 365 [a]). As was noted by the Second Circuit, there is limited case law from both New York courts and bankruptcy courts holding that a trustee’s authority under section 365 extends to rent-stabilized leases (see 187 Concourse Assoc. v Bunting, 175 Misc 2d 870 [Civ Ct, Bronx County 1997] and cases cited therein; see also In re Toledano, 299 BR 284, 292 [SD NY 2003]; In re Stein, 281 BR 845 [SD NY 2002]; In re Yasin, 179 BR 43, 49 [SD NY 1995]). In this case, the debtor’s counsel acknowledged at the hearing before the Bankruptcy Judge that a rent-stabilized lease is property of the estate and that the trustee had the power to assume the lease pursuant to section 365 (466 BR at 622).

Section 522 (b) of the Bankruptcy Code (11 USC) permits the debtor to exempt certain property from the bankruptcy estate, and section 522 (d) provides a list of property that may be exempt. However, the code also permits states to create their own list of exemptions, and New York has done so. Debtor and Creditor Law § 282 sets forth the permissible exemptions in personal bankruptcy. Debtors domiciled in New York have the option of choosing either the federal exemptions or New York exemptions (11 USC § 522 [b]; Debtor and Creditor Law § 285). Debtor and Creditor Law § 282 (2), entitled “Bankruptcy exemption for right to receive benefits,” lists the following as exemptions:

“The debtor’s right to receive or the debtor’s interest in: (a) a social security benefit, unemployment compensation or a local public assistance benefit; (b) a veterans’ benefit; (c) a disability, illness, or unemployment benefit; (d) alimony, support, or separate maintenance, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor; and (e) all payments under a stock bonus, pension, profit sharing, or similar plan or contract on account of illness, disability, death, age, or length of service.”

When the rent-stabilization regulatory scheme is considered against the backdrop of the crucial role that it plays in the lives of New York residents, and the purpose and effect of the program, it is evident that a tenant’s rights under a rent-stabilized lease are a local public assistance benefit.

The legislature has concluded that rent stabilization is necessary to preserve affordable housing for low-income, working poor and middle class residents in New York City. As we said in Manocherian v Lenox Hill Hosp. (84 NY2d 385, 389 [1994]), “[t]he rent stabilization system began in 1969 to ameliorate, over time, the intractable housing emergency in the City of New York” due to a housing shortage which was caused by continued high demand and decreasing supply. We noted in Manocherian that “[b]y regulating rents and providing occupants with statutory rights to tenancy renewals under rent stabilization . . . the State intended to protect dwellers who could not compete in an overheated rental market, through no fault of their own” (id. at 389).

The New York City Administrative Code provides that the City Council “finds that a serious public emergency continues to exist in the housing of a considerable number of persons within the city of New York,” and that “unless residential rents and evictions continue to be regulated and controlled, disruptive practices and abnormal conditions will produce serious threats to the public health, safety and general welfare” (Rent Stabilization Law of 1969 [Administrative Code of City of NY] § 26-501).

The rent-stabilization program has all of the characteristics of a local public assistance benefit. It is plainly local in that it depends on periodic determinations by local authorities as to the continuing existence of an emergency in the particular jurisdiction. The program is public as it was enacted by the New York Legislature and implemented by legislative and administrative bodies at both the state and local level. Rent stabilization provides assistance to a specific segment of the population that could not afford to live in New York City without a rent regulatory scheme. And the regulatory framework provides benefits to a targeted group of tenants — it protects them from rent increases, requires owners to offer lease renewals and the right to continued occupancy, imposes strict eviction procedures, and grants succession rights for qualified family members.

The trustee argues that the benefits of rent stabilization are unlike the other exemptions listed in Debtor and Creditor Law § 282 (2), such as Social Security benefits, unemployment compensation, and alimony, support, or separate maintenance because those exemptions all involve periodic payments, while the rent-stabilization program does not involve payments to tenants. However, that argument ignores the reality of social programs such as food stamps, vouchers, medical care, discounted prescriptions, and the like, that do not involve payments to the recipients of the benefit. While many public assistance benefits are administered through programs that provide periodic cash payments, such payments are not a prerequisite to a benefit being in the nature of public assistance.

Furthermore, when the legislature meant to refer only to “payments” in the Debtor and Creditor Law, it used that term. For example, in section 282 (2) (e), it exempted certain “payments” under pension and other plans. But it used the broader term “benefit” in section 282 (2) (a), indicating that benefits and payments are not the same. Likewise, the legislature has demonstrated that the general term “public assistance” denotes more than cash payments. For example, the Social Services Law in effect when Debtor and Creditor Law § 282 (2) (a) was enacted provided that “[p]ublic assistance and care includes home relief, veteran assistance, aid to dependent children, medical assistance for needy persons, institutional care for adults and child care granted at public expense” (former Social Services Law § 2 [18] [1982]). The current definition of public assistance is similar. Like other public assistance benefits exempted by New York law from a bankruptcy estate, the Rent Stabilization Law serves a select, defined group of New Yorkers who struggle, in this case, to afford suitable housing.

The trustee also argues that the benefit of a rent-stabilized tenancy cannot be a public assistance benefit because it is not subsidized by the government, as are the other benefits of Social Security and unemployment compensation listed in Debtor and Creditor Law § 282 (2). However, the rent-stabilization program is an exceptional regulatory scheme that enables a specifically targeted group of tenants to maintain housing in New York City. This uncommon regulatory program reflects the legislative intent to create a benefit for certain individuals who fall below certain income or rent thresholds, based upon the legislature’s conclusion that there is a continuing housing emergency.

While the rent-stabilization laws do not provide a benefit paid for by the government, they do provide a benefit conferred by the government through regulation aimed at a population that the government deems in need of protection. Among other things, the Rent Stabilization Law caps legal rents. Although the population that benefits from rent stabilization may not meet the requirements for New York City public housing programs or Section 8 assistance, the government, recognizing that housing protection is necessary to benefit a specific group of tenants, has created a public assistance benefit through a unique regulatory scheme applied to private owners of real property.

There are other public assistance benefits that are, at least in part, regulatory in form. Medicare is an example of a government program that is not solely the creature of a government subsidy. Although the government does, to some extent, contribute to the cost of medical care for Medicare recipients, it also sets the rates that can be charged by doctors. Medicare, like the rent-stabilization program, is not strictly for the needy. It is a public assistance benefit that regulates what doctors can charge for services, while rent stabilization is a public assistance benefit that regulates the rents property owners can charge protected tenants. While the classic examples of public assistance benefits may be solely government subsidized, or a mixture of subsidy and regulation as with Medicare, nothing prevents a targeted regulation from qualifying as a public assistance benefit. The rare regulatory scheme of rent stabilization is such a benefit.

Finally, as was recently noted by the United States Supreme Court, exemptions serve the important purpose of protect [ing] the debtor’s essential needs” (Clark v Rameker, 573 US —, —, 134 S Ct 2242, 2247 [2014] [internal quotation marks and citation omitted]). Affordable housing is an essential need. Mindful that exemption statutes are to be construed liberally in favor of debtors (In re Miller, 167 BR 782, 783 [SD NY 1994]), the certified question should be answered in accordance with this opinion.

Smith, J.

(dissenting). I dissent, because the majority grossly misreads Debtor and Creditor Law § 282 (2).

“Public assistance” is a common synonym for “welfare.” It refers, in ordinary speech, to government subsidies for the poor, whether paid in cash or in kind. The majority quotes a list of examples from former Social Services Law § 2 (18): “home relief, veteran assistance, aid to dependent children, medical assistance for needy persons, institutional care for adults and child care granted at public expense” (see majority op at 290). The current version of the statute adds “safety net assistance” (Social Services Law § 2 [18]). Neither list includes rent control or rent stabilization, though they have long been and still are prominent features of life in New York. Nor does the statutory list include any other regulatory program not involving a government subsidy. In fact, I do not think I have ever seen or heard the words “public assistance” used to refer to such a program before this case, and the majority cites no example of such a use.

Ignoring the generally accepted meaning of “public assistance,” the majority chooses to interpret “public assistance benefits” in the Debtor and Creditor Law literally. The rent stabilization program is public, in the way that all government regulation is public; it “provides assistance to a specific segment of the population” that is in economic need; and it “provides benefits” to that same segment (majority op at 290). The same could be said of a great many programs — e.g., minimum wage laws; antidiscrimination laws; workplace safety regulations — that no one would think of calling “public assistance.”

I would like to try asking every rent-controlled or rent-stabilized tenant in New York: “Do you receive public assistance?” I would be surprised to find even one (apart from those receiving government subsidies from other programs) who answered yes.

Chief Judge Lippman and Judges Graffeo, Pigott and Rivera concur; Judge Smith dissents and votes to answer the certified question in the negative in an opinion in which Judge Read concurs.

Following certification of a question by the United States Court of Appeals for the Second Circuit and acceptance of the question by this Court pursuant to section 500.27 of this Court’s Rules of Practice, and after hearing argument by counsel for the parties and consideration of the briefs and the record submitted, certified question answered in accordance with the opinion herein.


author: Graffeo, J. Smith, J.

text:
    [22 NE3d 1022, 998 NYS2d 154]
    The People of the State of New York, Respondent, v Julian Silva, Appellant. The People of the State of New York, Respondent, v Pamela Hanson, Appellant.
    Argued October 23, 2014;
    decided November 24, 2014

      POINTS OF COUNSEL

      John R. Lewis, Sleepy Hollow, for appellant in the first above-entitled action.
    I. The Appellate Division simply ignored the People v O’Rama (78 NY2d 270 [1991]) line of cases in failing to vacate appellant’s conviction on the basis of an insufficient record, despite the trial court’s having failed to inform counsel of a jury note or address the note in any way. (People v Lewis, 77 AD3d 579; People v Kalinowski, 84 AD3d 1739; People v Galdamez, 234 AD2d 608; People v Mehmedi, 69 NY2d 759; People v Kisoon, 8 NY3d 129; People v Caban, 78 AD3d 403; People v Caballero, 221 AD2d 459; People v Vargas, 278 AD2d 807; People v Cruz, 14 NY3d 814.) II. The prosecutor’s closing summation was improper and prejudicial. (People v Correal, 160 AD2d 85; People v Collins, 12 AD3d 33; People v Acosta, 180 AD2d 505; People v Johnson, 114 AD2d 210; People v Ortiz, 116 AD2d 531; People v Grice, 100 AD2d 419; People v Ashwal, 39 NY2d 105; People v Payne, 187 AD2d 245; People v Nevedo, 202 AD2d 183; People v Colon, 46 AD3d 260.)

      Cyrus R. Vance, Jr., District Attorney, New York City (Susan Axelrod and Hilary Hassler of counsel), for respondent in the first above-entitled action.
    I. The trial court’s handling of the first jury note provides no basis for appellate relief. (People v O’Rama, 78 NY2d 270; People v Kisoon, 8 NY3d 129; People v Velasquez, 1 NY3d 44; People v Dominique, 90 NY2d 880; People v Cruz, 14 NY3d 814; People v Cornado, 60 AD3d 450; People v Antommarchi, 80 NY2d 247; People v Tabb, 13 NY3d 852; People v Kinchen, 60 NY2d 772; People v McLean, 15 NY3d 117.) II. Defendant’s complaints about the prosecutor’s summation are beyond the review powers of this Court and, in any event, are unavailing. (People v Harris, 98 NY2d 452; People v Balls, 69 NY2d 641; People v Heide, 84 NY2d 943; People v Martin, 50 NY2d 1029; People v Padro, 75 NY2d 820; People v Williams, 298 AD2d 172; People v Molina, 242 AD2d 453; People v Galloway, 54 NY2d 396; People v Ashwal, 39 NY2d 105; People v Burke, 72 NY2d 833.)

      Lynn W.L. Fahey, Appellate Advocates, New York City (Steven R. Bernard of counsel), for appellant in the second above-entitled action.
    The trial court violated People v O’Rama (78 NY2d 270 [1991]) and CPL 310.30 by entirely failing to disclose or respond to jury notes requesting a readback, which were marked as court exhibits and placed on the exhibit list and in the Supreme Court file. (People v Kisoon, 8 NY3d 129; People v Tabb, 13 NY3d 852; People v Piccione, 78 AD3d 1518; People v Caban, 78 AD3d 403; People v Lourido, 70 NY2d 428; People v Smith, 248 AD2d 413; People v Malloy, 55 NY2d 296; People v McNeil, 228 AD2d 620; People v Carrero, 140 AD2d 533; People v Bobadilla, 254 AD2d 493.)

      Kenneth P. Thompson, District Attorney, Brooklyn (Leonard Joblove and Rhea A. Grob of counsel), for respondent in the second above-entitled action.
    The record is insufficient to establish defendant’s claim that the trial court failed to disclose to defense counsel the content of two notes received from the jury during its deliberations. In addition, defendant has failed to preserve his claim that the trial court erred by taking the verdict without inquiring if the jury wanted the requested readback of testimony. (People v Velasquez, 1 NY3d 44; People v Dominique, 90 NY2d 880; People v O’Rama, 78 NY2d 270; People v Cruz, 14 NY3d 814; People v McLean, 15 NY3d 117; People v Williams, 88 AD3d 463, 21 NY3d 932; People v Cornado, 60 AD3d 450; People v Kinchen, 60 NY2d 772; People v Hunter, 17 NY3d 725; People v Kisoon, 8 NY3d 129.)
   OPINION OF THE COURT

Graffeo, J.

In these cases, we must decide whether a mode of proceedings error occurs under People v O’Rama (78 NY2d 270 [1991]) and its progeny when a court accepts a verdict without affirmatively acknowledging or responding to a jury’s substantive request for information during deliberations.

I

People v Julian Silva

Defendant Julian Silva was charged with weapon possession and various drug offenses, including criminal sale of a controlled substance in the first degree. During the morning of the second day of deliberations, the jury sent a note asking for “the wire transcript mentioning the gun” and the “judges [sic] instructions on count #3 - weapon possession.” The note was marked as court exhibit 2, but nothing in the record affirmatively demonstrates that the court informed the parties about the jury’s inquiry. About one hour later, the jury sent another note, marked as court exhibit 3, stating that a verdict had been reached. The jurors were brought to the courtroom, the verdict was announced and defendant was found guilty of first-degree drug sale, attempted third-degree weapon possession and other offenses.

On appeal to the Appellate Division, defendant claimed that the court’s handling of the note marked as court exhibit 2 constituted a mode of proceedings error under O’Rama. Because it was “impossible to determine if the note was presented to the judge or if the jury reached a verdict without the judge being aware they had submitted the note,” the Appellate Division rejected defendant’s assertion and affirmed (99 AD3d 522, 523 [1st Dept 2012]). A Judge of this Court granted defendant leave to appeal (21 NY3d 1020 [2013]).

People v Pamela Hanson

Defendant Pamela Hanson was charged with murdering an acquaintance. The jury sent a series of notes to the court during deliberations, and the second note, issued at 1:05 p.m., was marked as court exhibit 4 and requested “First Det. Statement.” The third note, sent at 1:21 p.m. and marked as court exhibit 5, read: “To clear up the first note, we would like to hear Det. Moss [sic] direct examination.” The jury’s fourth and final note, bearing the time 2:12 p.m. and marked court exhibit 6, informed the court that the jury had arrived at a verdict. The transcript does not show that the court was aware of the second or third jury note, or that the notes were shared with the parties before the jury convicted defendant of second-degree murder and fourth-degree grand larceny.

The Appellate Division affirmed (100 AD3d 771 [2d Dept 2012]) and a Judge of this Court granted defendant leave to appeal (21 NY3d 1016 [2013]).

II

Defendants assert that the trial courts committed mode of proceedings errors under the O’Rama rule by accepting the verdicts without acknowledging or responding to jury notes that requested specific information for use in jury deliberations. The People submit that the presumption of regularity permits an inference that the trial courts informed defense counsel about the contents of the jury notes and that O’Rama does not obligate a trial court to make a record documenting that action. In defendant Hanson’s case, the People alternatively ask us to overrule our precedent that establishes an O’Rama violation as a mode of proceedings error.

CPL 310.30 is the primary statutory authority governing the handling of requests for information from a deliberating jury. It requires trial courts to give “notice to both the people and counsel for the defendant” before responding to a note from a deliberating jury (CPL 310.30; see e.g. People v Alcide, 21 NY3d 687, 691-692 [2013]). In O’Rama (78 NY2d 270 [1991]), we carefully explained that a court’s “core responsibility under the statute is both to give meaningful notice to counsel of the specific content of the jurors’ request — in order to ensure counsel’s opportunity to frame intelligent suggestions for the fairest and least prejudicial response — and to provide a meaningful response to the jury” (People v Kisoon, 8 NY3d 129, 134 [2007], citing People v O’Rama, 78 NY2d at 277). In furtherance of these requirements, a court must read a jury note “verbatim” so that the parties have “the opportunity to accurately analyze the jury’s deliberations and frame intelligent suggestions for the court’s response” (Kisoon, 8 NY3d at 135).

We outlined in O’Rama the step-by-step procedure that should be followed when a deliberating jury requests information (see 78 NY2d at 277-278). First, a note should be marked as a court exhibit and read into the record in the presence of the attorneys before the jury is returned to the courtroom. Second, the judge should then allow counsel to comment and recommend responses to the jury’s inquiry. Third, the judge should articulate the substance of its proposed response and allow the attorneys to offer modifications before the jury returns to the courtroom. And, fourth, the judge should read the note to the jury to correct any inaccuracies before providing “such requested information or instruction as the court deems proper” (CPL 310.30).

As a general rule, errors in criminal cases are reviewahle on appeal only if they are adequately preserved by the appellant (see CPL 470.05 [2]). A “ Very narrow’ exception” to the preservation rule exists for a “limited class” of so-called “mode of proceedings” errors that “ £go to the essential validity of the process and are so fundamental that the entire trial is irreparably tainted’ ” (People v Rivera, 23 NY3d 827, 831 [2014], quoting People v Kelly, 5 NY3d 116, 119-120 [2005]). A trial court’s failure to fulfill the “core responsibility” under O’Rama is treated as a mode of proceedings error (see People v Kisoon, 8 NY3d at 135). O’Rama, however, was not designed “to mandate adherence to a rigid set of procedures, but rather to delineate a set of guidelines calculated to maximize participation by counsel at a time when counsel’s input is most meaningful” (People v Alcide, 21 NY3d at 692).

Although not every violation of CPL 310.30 is immune from normal preservation principles (see e.g. People v Mays, 20 NY3d 969, 971 [2012]; People v Ippolito, 20 NY3d 615, 625 [2013]; People v Williams, 21 NY3d 932, 934-935 [2013]; People v Kadarko, 14 NY3d 426, 429-430 [2010]), a failure to apprise counsel about the specific contents of a substantive note from a deliberating jury violates the fundamental tenets of CPL 310.30 and qualifies as a mode of proceedings error (see e.g. People v Kisoon, 8 NY3d at 135). The record therefore must indicate compliance with adequate procedures under O’Rama because reviewing courts “cannot assume” that the proper procedure was utilized when the record is devoid of information as to how jury notes were handled (see People v Walston, 23 NY3d 986, 990 [2014]). The “presumption of regularity” (see e.g. People v Velasquez, 1 NY3d 44, 48 [2003]) cannot salvage an O’Rama error of this nature (see People v Tabb, 13 NY3d 852, 852 [2009]) and this is not the first time — contrary to our dissenting colleague’s belief — that a judge’s apparent unawareness of a jury note or unresponsiveness has led to a new trial (see People v Cruz, 14 NY3d 814, 816 [2010]). And, somewhat ironically, the dissent recognizes that the errors in these appeals were so fundamental that they are exempt from the preservation rule (see dissenting op at 302).

The People urge us to disavow our holding in Walston (23 NY3d 986 [2014]) that imposes an affirmative obligation on a trial court to create a record of compliance under CPL 310.30 and O’Rama. We recently discussed the principles underlying the doctrine of stare decisis (see People v Peque, 22 NY3d 168, 194 [2013], cert denied sub nom. Thomas v New York, 574 US —, 135 S Ct 90 [2014]) and it is sufficient for us to reiterate that a “compelling justification” is required to cast aside precedent (id.; see People v Lopez, 16 NY3d 375, 384 n 5 [2011]).

Such a circumstance is absent in these appeals. Walston (23 NY3d 986 [2014]) broke no new ground — it built upon prior law (see People v Tabb, 13 NY3d at 852) and advanced the two requirements that we identified over 20 years ago in O’Rama: that parties must be given meaningful notice of a jury’s request for substantive information; and that deliberating jurors must receive a meaningful response to their inquiry (see People v O’Rama, 78 NY2d at 277; see also People v Kisoon, 8 NY3d at 134). These mandates were not satisfied in the two cases now before us since the substantive jury notes, marked as court exhibits, were neither revealed to the attorneys nor addressed by the courts. Those deficiencies could have been easily avoided by making a record of compliance with the O’Rama guidelines. If there was uncertainty regarding the number of notes that had been forwarded during deliberations, the best practice would have been for the judge to inquire before the verdict was announced. Since that did not occur in these cases, defendants are entitled to new trials.

Accordingly, in People v Silva, the order of the Appellate Division should be modified by vacating the conviction of attempted criminal possession of a weapon in the third degree, with leave to the People to present a charge of that offense to a new grand jury and, as so modified, affirmed. In People v Hanson, the order of the Appellate Division should be reversed and a new trial ordered.

Smith, J.

(dissenting in People v Silva and concurring in People v Hanson). We have never previously applied the automatic-reversal rule of People v O’Rama (78 NY2d 270 [1991]) in a case where the jury sent a note to which the trial court never responded. O’Rama, and all the cases following it, were cases in which the court responded without complying with the O’Rama protocol. (People v Cruz [14 NY3d 814 (2010)], cited by the majority [majority op at 300], is not an exception; the defendant in Cruz relied on O’Rama, but O’Rama was not the basis for our decision.) Cases in which the jury sends a note and then returns a verdict before the court has answered have always been, and should still be, governed by our decisions in People v Lourido (70 NY2d 428, 435 [1987]) and People v Agosto (73 NY2d 963 [1989]), which require reversal only where the defendant is prejudiced by the failure to respond.

In Lourido, we found an error sufficient, in combination with others, to compel reversal where the jury requested a read-hack of the cross-examination of a key witness, received no response and rendered a verdict some three hours later; we implied that the court should at least have asked the jury, before accepting the verdict, whether it still wanted the testimony read back (id. at 431-433). In Agosto, by contrast, we affirmed a conviction on a jury verdict rendered 20 minutes after two jurors had (in the late morning) sent a note asking that the jury be dismissed before sundown. We found no “significant probability of any prejudice to defendant” (id. at 967).

The majority seems to assume that a case in which a court responds to a jury note without proper input from defense counsel is indistinguishable from one in which the court neither seeks input from defense counsel nor responds at all, and that O’Rama must therefore be read as having superseded Lourido and Agosto. But O’Rama itself distinguished Agosto on the ground that in O’Rama “the trial court did respond to the juror’s inquiry” (O’Rama, 78 NY2d at 280). Perhaps the distinction is a fine one, but it does not seem unreasonable to say that a response tainted by flawed procedure is worse than no response at all. Because I find O’Rama a troubling case, for reasons I have previously explained (see People v Walston, 23 NY3d 986, 990-992 [2014, Smith, J., concurring]), I would not extend it to a situation not clearly within its scope.

Thus I would apply Lourido and Agosto to these cases. The consequences of doing so are not obvious, because the delays here, about an hour in each case, were longer than in Agosto but shorter than in Lourido, and because the juries’ inquiries in these cases, unlike the one in Agosto, were substantive. I would put Silva on the Agosto side of the line: I do not see, under all of the circumstances, a significant possibility that the failure to respond to the jury’s note prejudiced defendant in that case. On the other hand, Hanson, like Lourido, involved a jury request for the read-back of critical testimony, and I cannot say there was no prejudice caused by the court’s failure to respond. Thus I would affirm in Silva, but I concur in the decision to reverse in Hanson.

Lest my silence be taken for acquiescence, I will mention that I still think, as I did when I wrote my concurrence in Walston, that O’Rama’s holding on the question of mode of proceedings error should be reconsidered in a proper case. But I do not think this case presents that issue. The problem I wrote about in Walston was the holding in O’Rama that a failure to follow O’Rama’s teachings is an error exempt from the preservation requirement. Here, there is no indication in the record of either case that defendants ever saw or knew about the jury notes that went unanswered. Thus they cannot be faulted for failing to preserve any error, and whether we should revisit the O’Rama holding on preservation is a question for a future case.

Chief Judge Lippman and Judges Read, Pigott and Rivera concur; Judge Smith dissents in an opinion; Judge AbdusSalaam taking no part.

In People v Silva: Order modified by vacating the conviction of attempted criminal possession of a weapon in the third degree, with leave to the People, if they be so advised, to resubmit a charge of attempted criminal possession of a weapon in the third degree to a new grand jury and, as so modified, affirmed.

Chief Judge Lippman and Judges Read, Pigott and Rivera concur; Judge Smith concurs in result in an opinion; Judge AlBdus-Salaam taking no part.

In People v Hanson: Order reversed and a new trial ordered.

      . Nor are we persuaded by the dissent’s reliance on pve-O’Rama cases that imposed a “serious prejudice” requirement (see People v Agosto, 73 NY2d 963, 966 [1989]; People v Lourido, 70 NY2d 428, 435 [1987]).

      . Defendant Silva’s drug-related convictions may be upheld because the information requested by the jury was restricted to attempted weapon possession (see People v Walston, 23 NY3d at 990) and no reversible error occurred during the People’s summation. Since the indictment did not include a count of attempted weapon possession, however, the People may retry Silva for that offense only if a grand jury charges him with that crime (see People v Mayo, 48 NY2d 245, 253 [1979]).