author: Chief Judge DiFiore. Stein, J.

text:
    [65 NE3d 1253, 43 NYS3d 218]
    Justinian Capital SPC, for and on Behalf of Blue Heron Segregated Portfolio, Appellant, v WestLB AG, New York Branch, et al., Respondents.
    Argued September 14, 2016;
    decided October 27, 2016

      POINTS OF COUNSEL

      Grant & Eisenhofer P.A., New York City (James J. Sabella, Jay W. Eisenhofer, Deborah A. Elman and Robert D. Gerson of counsel), for appellant.

      Hughes Hubbard & Reed LLP, New York City (Christopher M. Paparella, Marc A. Weinstein, Savvas A. Foukas and Seth Schulman-Marcus of counsel), for respondents.

      Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C., Washington, D.C. (Derek T. Ho of counsel), and Burford Capital LLC, New York City (Melissa P Sobel of counsel), for Burford Capital LLC, amicus curiae.
   OPINION OF THE COURT

Chief Judge DiFiore.

The concept of champerty dates back to French feudal times (Bluebird Partners v First Fid. Bank, 94 NY2d 726, 733-734 [2000]). In the English legal system, the word “champart” was used “as a metaphor to indicate a disapproval of lawsuits brought Tor part of the profits’ of the action” (id. at 734 [citations omitted]). As we have explained, the champerty doctrine was developed “to prevent or curtail the commercialization of or trading in litigation” (id. at 729). New York’s champerty doctrine is codified at Judiciary Law § 489 (1). As pertinent here, the statute prohibits the purchase of notes, securities, or other instruments or claims with the intent and for the primary purpose of bringing a lawsuit (see id. at 735-736).

Justinian Capital SPC, a Cayman Islands company, brings this action against WestLB AG, New York Branch and WestLB Asset Management (US) LLC (collectively, WestLB), alleging that WestLB’s fraud (among other malfeasance) in managing two investment vehicles caused a steep decline in the value of notes purchased by nonparty Deutsche Pfandbriefbank AG (DPAG). Justinian acquired the notes from DPAG days before it commenced this action.

In this appeal, we must first decide whether Justinian’s acquisition of the notes from DPAG is champertous as a matter of law. If the answer is “yes,” we must then decide whether the acquisition falls within the champerty statute’s safe harbor provision codified at Judiciary Law § 489 (2). The safe harbor provides that the champerty doctrine of section 489 (1) is inapplicable when the notes or other securities are acquired for “an aggregate purchase price of at least five hundred thousand dollars” (Judiciary Law § 489 [2]).

As set forth below, we hold that Justinian’s acquisition of the notes was champertous and, further, that Justinian is not entitled to the protection of the safe harbor provision. Therefore, the order of the Appellate Division should be affirmed.

L

In 2003, nonparty DPAG invested close to €180 million (approximately $209 million) in notes (the notes) issued by two special purpose companies, Blue Heron Funding VI Ltd. and Blue Heron Funding VII Ltd. (collectively, the Blue Heron portfolios). The Blue Heron portfolios were sponsored and managed by defendants WestLB. By January 2008, the notes had lost much (if not all) of their value.

After the value of the notes declined, DPAG considered its options. In the summer of 2009, DPAG’s board of directors approved filing a direct lawsuit against WestLB. Both DPAG and WestLB are German banks and, at the time, DPAG was receiving substantial support from the German government and WestLB was partly owned by the government. Because of these relationships the DPAG board expressed concerns about pursuing a direct action to vindicate its rights for fear that the government would withdraw support from DPAG if it sued WestLB. This fear of repercussions from bringing a direct lawsuit led DPAG to consider another option in which a third party would bring the lawsuit and remit a portion of any proceeds to DPAG. In February 2010, DPAG discussed this option with plaintiff Justinian, a Cayman Islands shell company with few or no assets. A presentation submitted by Justinian in this action described Justinian’s business plan as:

“(1) purchase an investment that has suffered a major loss from a company so that the company does not need to report such loss on its balance sheet; (2) commence litigation to recover the loss on the investment; (3) remit the recovery from such litigation to the company, minus a cut taken by Justinian; and (4) partner with specific law firms ... to conduct litigation.”

Ultimately, the DPAG board approved the option of having Justinian bring suit because it presented the “best risk return profile” for DPAG.

In April 2010, DPAG and Justinian entered into a sale and purchase agreement (the agreement). Pursuant to the agreement, DPAG would assign the notes to Justinian and Justinian would agree to pay DPAG a base purchase price of $1,000,000 (representing $500,000 for the Blue Heron Funding VI notes and $500,000 for the Blue Heron Funding VII notes). The notes were assigned to Justinian shortly after execution of the agreement. The assignment, however, was not contingent on Justinian’s payment of the $1,000,000. Nor did Justinian’s failure to pay the $1,000,000 constitute an event of default under section 9 of the agreement. According to Justinian’s principal and chief negotiator of the agreement, Thomas Lowe, Justinian’s failure to pay the $1,000,000 did not constitute a breach of the agreement. Under the terms of the agreement, the only consequences of Justinian’s failure to pay by the selected due date appear to be that interest would accrue on the $1,000,000 and that Justinian’s share of any proceeds recovered from the lawsuit would be reduced from 20% to 15%. Justinian has not paid any portion of the $1,000,000 base purchase price, and DPAG has not demanded payment.

Within days after the agreement was executed and shortly before the statute of limitations was to expire, Justinian filed a summons with notice in Supreme Court commencing this action against WestLB. The subsequent complaint alleged causes of action in breach of contract, fraud, breach of fiduciary duty, negligence, negligent misrepresentation, and breach of the covenants of good faith and fair dealing, all in connection with WestLB’s alleged purchase of ineligible assets for the Blue Heron portfolios that caused the value of the notes to deteriorate.

WestLB moved to dismiss, alleging that Justinian lacked standing to bring this action. Justinian opposed the motion. In reply, WestLB raised the affirmative defense of champerty, arguing that Justinian’s acquisition of the notes was champer-tous under Judiciary Law § 489. After oral argument, Supreme Court issued a written decision concluding that there were “questions of fact surrounding Justinian’s actual purpose and intent in purchasing the [notes] that require further discovery to resolve” (37 Misc 3d 518, 528 [Sup Ct, NY County 2012]). The court ordered discovery limited to the issues related to champerty and reserved judgment on the motion to dismiss.

After champerty-related discovery was complete, WestLB renewed its motion to dismiss, which Supreme Court treated as a motion for summary judgment. Supreme Court dismissed the complaint, concluding that the agreement was champertous because Justinian had not made a bona fide purchase of the notes and was, therefore, suing on a debt it did not own. Supreme Court also concluded that Justinian was not entitled to the protection of the champerty safe harbor of Judiciary Law § 489 (2) because Justinian had not made an actual payment of $500,000 or more (43 Misc 3d 598 [Sup Ct, NY County 2014]). On appeal, the Appellate Division affirmed, largely adopting the rationale of Supreme Court (128 AD3d 553 [1st Dept 2015]). This Court granted leave to appeal (25 NY3d 914 [2015]). We affirm, although our reasoning is somewhat different.

IL

Judiciary Law § 489 is New York’s champerty statute. Section 489 (1) restricts individuals and companies from purchasing or taking an assignment of notes or other securities “with the intent and for the purpose of bringing an action or proceeding thereon.”

In a prominent early champerty case, Moses v McDivitt (88 NY 62, 65 [1882]), we concluded that the language “with the intent and for the purpose” contained in a predecessor champerty statute—language which Judiciary Law § 489 (1) has retained—was significant. We determined that simply intending to bring a lawsuit on a purchased security is not champerty, but when the purchase of a security was “made for the very purpose of bringing such suit” that is champerty because “this implies an exclusion of any other purpose” (88 NY at 65). Therefore, we held that “[t]o constitute the offense [of champerty] the primary purpose of the purchase must be to enable [one] to bring a suit, and the intent to bring a suit must not be merely incidental and contingent” {id. [emphasis added]). The primary purpose test articulated in Moses has been echoed in our courts for well over a century. In Trust for Certificate Holders of Merrill Lynch Mtge. Invs., Inc. Mtge. Pass-Through Certificates, Series 1999-C1 v Love Funding Corp. (13 NY3d 190, 198-199 [2009]), we endorsed the distinction in Moses “between acquiring a thing in action in order to obtain costs and acquiring it in order to protect an independent right of the assignee” and opined that “the purpose behind [the plaintiffs] acquisition of rights” is the critical issue in assessing whether such acquisition is champertous. Similarly, in Bluebird Partners v First Fid. Bank (94 NY2d 726, 736 [2000]), we held that “in order to constitute champertous conduct in the acquisition of rights . . . the foundational intent to sue on that claim must at least have been the primary purpose for, if not the sole motivation behind, entering into the transaction.”

Here, the impetus for the assignment of the notes to Justinian was DPAG’s desire to sue WestLB for causing the notes’ decline in value and not be named as the plaintiff in the lawsuit. Justinian’s business plan, in turn, was acquiring investments that suffered major losses in order to sue on them, and it did so here within days after it was assigned the notes. Contrary to the suggestion by the dissent, there was no evidence, even following completion of champerty-related discovery, that Justinian’s acquisition of the notes was for any purpose other than the lawsuit it commenced almost immediately after acquiring the notes (dissenting op at 172-173). Justinian’s principal speculated at his deposition as to other possible sources of recovery on the notes—for example, that there “might have been” an insolvency or that there “might have been” a restructuring or distribution between the time of acquisition and 2047 when the notes were due. Such speculation does not suffice to defeat summary judgment. We have long held that “ ‘[m]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient’ ” to defeat summary judgment (Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 967 [1988], quoting Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Indeed, “[t]he moving party need not specifically disprove every remotely possible state of facts on which its opponent might win” to be entitled to summary judgment, particularly when the opponent’s “theorizing” is “farfetched” (Ferluckaj v Goldman Sachs & Co., 12 NY3d 316, 320 [2009]). Here, the lawsuit was not merely an incidental or secondary purpose of the assignment, but its very essence. Justinian’s sole purpose in acquiring the notes was to bring this action and hence, its acquisition was champertous.

III.

Conduct that is champertous under Judiciary Law § 489 (1) is nonetheless permissible if it falls within the safe harbor provision of Judiciary Law § 489 (2). Section 489 (2) exempts the purchase or assignment of notes or other securities from the restrictions of section 489 (1) when the notes or other securities “hav[e] an aggregate purchase price of at least five hundred thousand dollars” (Judiciary Law § 489 [2]). Here, although the price listed in the agreement, $1,000,000, satisfies the threshold dollar amount for the safe harbor, Justinian has not actually paid any portion of that price. Justinian argues that a binding obligation to pay is sufficient to receive the protection of the safe harbor. WestLB argues that in order to come within the safe harbor an actual payment of at least $500,000 must have been made. The courts below endorsed WestLB’s position. We do not agree. Actual payment of the purchase price need not have occurred to receive the protection of the safe harbor. Nonetheless, for the reasons set forth below, under the circumstances presented here, Justinian is not entitled to the protection of the safe harbor.

The parties disagree about whether the phrase “purchase price” in section 489 (2) is ambiguous. Justinian argues that it is unambiguous and means whatever amount is denominated the “purchase price” in a purchase agreement. WestLB argues that reading “purchase price” with “ ‘absolute literalness’ ” would violate the safe harbor’s “ ‘purpose and intent’ ” (brief for defendants-respondents at 14, quoting Matter of Long v Adirondack Park Agency, 76 NY2d 416, 420 [1990]). We agree with that statement.

Although the phrase “purchase price” may be unambiguous in some contexts, here it is not, and we must look to the legislative history to discern its meaning (see Matter of Auerbach v Board of Educ. of City School Dist. of City of N.Y., 86 NY2d 198, 204 [1995]). A review of draft versions of the safe harbor legislation introduced during the legislative session reveals that at least one version of the bill contemplated that the safe harbor would protect a purchaser of notes or securities if either the aggregate face amount of the notes or securities sued upon totaled at least $1,000,000 or the purchaser had paid, in the aggregate, at least $500,000 to acquire them (2003 NY Senate Bill S2992-A). The statute as enacted contained different language, requiring instead that the notes or securities have “an aggregate purchase price” of at least $500,000 (Judiciary Law § 489 [2]). The “purchase price” language effectively falls between the two earlier proposed safe harbor formulations— strong indication that the legislature did not intend either that actual payment necessarily had to have been made or that face value alone would suffice to obtain the protection of the safe harbor.

The legislative explanation of the safe harbor’s purpose further supports our reading. New York has long been a leading commercial center, and our statutes and jurisprudence have, over many years, greatly enhanced New York’s leadership as the center of commercial litigation. The safe harbor was enacted to exempt large-scale commercial transactions in New York’s debt-trading markets from the champerty statute in order to facilitate the fluidity of transactions in these markets (see Assembly Mem in Support, Bill Jacket, L 2004, ch 394 at 4, 2004 NY Legis Ann at 282-283). The participants in commercial transactions and the debt markets are sophisticated investors who structure complex transactions. Requiring that an actual payment of at least $500,000 have been made for these transactions to fall within the safe harbor would be overly restrictive and hinder the legislative goal of market fluidity. The phrase “purchase price” in section 489 (2) is better understood as requiring a binding and bona fide obligation to pay $500,000 or more for notes or other securities, which is satisfied by actual payment of at least $500,000 or the transfer of financial value worth at least $500,000 in exchange for the notes or other securities. Such understanding conforms with the realities of these markets in which payment obligations may be structured in various forms, whether by exchange of funds, forgiveness of a debt, a promissory note, or transfer of other collateral. We emphasize that we find no problem with parties structuring their agreements to meet the safe harbor’s requirements, so long as the $500,000 threshold is met, as set forth above.

However, as the dissent concedes, “[u]nquestionably, if the obligation to pay [at least $500,000] [i]s entirely contingent on a successful outcome in [the] litigation, it [does] not constitute a binding and bona fide debt” (dissenting op at 175). The legislative history reveals that a purchase price of at least $500,000 was selected because the legislature took comfort that buyers of claims would “not invest large sums of money” to pursue litigation unless the buyers believed in the value of their investments (see Assembly Mem in Support, Bill Jacket, L 2004, ch 394 at 4, 2004 NY Legis Ann at 283). This comfort is lost when a purchaser of notes or other securities structures an agreement to make payment of the purchase price contingent on a successful recovery in the lawsuit; such an arrangement permits purchasers to receive the protection of the safe harbor without bearing any risk or having any “skin in the game,” as the legislature intended. The legislature intended that those who benefit from the protections of the safe harbor have a binding and bona fide obligation to pay a purchase price of at least $500,000, irrespective of the outcome of the lawsuit.

That is precisely what is lacking here. The record establishes, and we conclude as a matter of law, that the $1,000,000 base purchase price listed in the agreement was not a binding and bona fide obligation to pay the purchase price other than from the proceeds of the lawsuit. The agreement was structured so that Justinian did not have to pay the purchase price unless the lawsuit was successful, in litigation or in settlement. The due date listed for the purchase price was artificial because failure to pay the purchase price by this date did not constitute a default or a breach of the agreement. The agreement permitted Justinian to exercise the option to let the due date pass without consequence and simply deduct the $1,000,000 (plus interest) from its share of any proceeds from the lawsuit.

In sum, we hold that because the notes were acquired for the sole purpose of bringing litigation, the acquisition was champertous. Further, because Justinian did not pay the purchase price or have a binding and bona fide obligation to pay the purchase price of the notes independent of the successful outcome of the lawsuit, Justinian is not entitled to the protection of the safe harbor. In essence, the agreement at issue here was a sham transaction between the owner of a claim which did not want to bring it (DPAG) and an undercapitalized assignee which did not want to assume the $500,000 risk required to qualify for the safe harbor protection of section 489 (2) (Justinian).

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

Stein, J.

(dissenting). This case requires us to determine whether the transfer of notes from nonparty Deutsche Pfand-briefbank AG (DPAG) to plaintiff Justinian Capital SPC was champertous as a matter of law and, if so, whether the statutory safe harbor provision applies. Because the answer to each of these two questions depends on the intent of one or both of the parties to that transaction, and such intent is—as in almost all cases—a factual issue, I cannot agree with the majority of this Court that summary judgment is appropriate here. Therefore, I respectfully dissent.

I. Champerty

We need not travel back to feudal France or merry old England to discuss champerty. When the New York State Legislature enacted statutes prohibiting champerty, it intended to abolish the common-law version of that doctrine and, thus, our primary focus must be on the relevant statutory provisions (see Sedgwick v Stanton, 14 NY 289, 299 [1856]). Judiciary Law § 489 (1) provides that no person or corporation may buy or take an assignment of notes or other security instruments “with the intent and for the purpose of bringing an action or proceeding thereon.” This Court has stated that “the critical issue to assessing the sufficiency of [a] champerty finding is . . . the purpose behind [the assignee’s] acquisition of rights that allowed it to sue” (Trust for Certificate Holders of Merrill Lynch Mtge. Invs., Inc. Mtge. Pass-Through Certificates, Series 1999-C1 v Love Funding Corp., 13 NY3d 190, 198 [2009] [internal quotation marks and citation omitted]). “The bottom line is that Judiciary Law § 489 requires that the acquisition be made with the intent and for the purpose (as contrasted to a purpose) of bringing an action or proceeding” (Bluebird Partners v First Fid. Bank, 94 NY2d 726, 736 [2000] [citations omitted]; see Sprung v Jaffe, 3 NY2d 539, 544 [1957]; Moses v McDivitt, 88 NY 62, 65 [1882]).

“[W]hile this Court has been willing to find that an action is not champertous as a matter of law, it has been hesitant to find that an action is champertous as a matter of law” (Bluebird Partners, 94 NY2d at 734-735 [citations omitted]). Indeed, until today, we have never found summary judgment appropriate to hold a transaction champertous as a matter of law. This hesitation is understandable because the intent and purpose of the purchaser or assignee is usually a factual question that cannot be decided on summary judgment (see Love Funding Corp., 13 NY3d at 200; Bluebird Partners, 94 NY2d at 738; Fairchild Hiller Corp. v McDonnell Douglas Corp., 28 NY2d 325, 330 [1971]).

In deciding summary judgment motions, courts should simply identify triable material issues of fact, and may not invade the province of the jury by making credibility determinations or weighing the probative force of the evidence presented by each side (see Vega v Restani Constr. Corp., 18 NY3d 499, 505 [2012]). On such a motion, the facts must be viewed in the light most favorable to the nonmoving party (here, plaintiff) (see Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, 833 [2014]). Because champerty is an affirmative defense (see Bluebird Partners, 94 NY2d at 729; Fairchild Hiller Corp., 28 NY2d at 329), defendants bore the burden of demonstrating that the assignment was champertous (see Kirschner v KPMG LLP, 15 NY3d 446, 478 [2010]). I believe that, in arriving at its definitive conclusion regarding plaintiff’s sole purpose in acquiring the notes here, the majority has overlooked or disregarded these basic principles.

To be sure, the majority points to evidence in the record that would support a finding that plaintiff was a champertor, merely acting as a proxy to bring suit for DPAG. However, the record also contains evidence supporting plaintiff’s argument that it procured the notes with an intent to enforce its rights in them in whatever way possible, not necessarily by way of litigation. In fact, plaintiff affirmatively alleges that it acquired the notes for the lawful purpose of enforcing rights under them and that, while litigation on the notes was a real possibility when it took the assignment, litigation was not the only option under consideration when it was negotiating for their acquisition. For example, plaintiff’s principal testified that one possible avenue to recover on the notes was through bankruptcy proceedings. In addition, the funds at issue could potentially have been restructured with some amount paid to noteholders. Alternatively, a distribution could still be forthcoming on the notes because they are not due until 2047, leaving some possibility that the notes will regain value over time.

Contrary to the majority’s assertion, discussion of these options did not constitute mere after-the-fact speculation. As relevant to the question of plaintiff’s intent when acquiring the notes, plaintiff’s principal testified that such options were among those considered as possibilities at the time plaintiff was negotiating with DPAG regarding the purchase of the notes. The principal’s use of the words “might have been” in connection with several of the options did not necessarily indicate that their pursuit was speculative; instead, such words appropriately reflected his recognition that, as a practical matter, the outcome under any option was also dependent on defendants’ responses to plaintiff’s efforts. Thus, the record contains nonspeculative evidence that options other than litigation were under consideration before plaintiff acquired the notes, notwithstanding any uncertainty about whether plaintiff would actually be successful in obtaining a recovery by pursuing them. Such evidence was sufficient to create a question of fact precluding summary judgment.

Furthermore, litigation is a legitimate consideration when acquiring any distressed debt instrument. Plaintiff commenced this litigation soon after acquiring the notes, but explained that a hasty commencement was necessary because the statute of limitations was about to run shortly after the purchase agreement was executed; this did not mean that litigation was necessarily plaintiff’s sole purpose or option. Indeed, due to the impending statute of limitations deadline, commencement of this action was necessary to protect plaintiff’s rights while it explored its other options, in case its efforts thereunder were not fruitful. The action was commenced by a summons with notice, and there is evidence that plaintiff unsuccessfully attempted to contact defendants, prior to filing the complaint, to discuss options other than protracted litigation. While defendants may dispute having received such communications from plaintiff, the courts may not, for purposes of defendants’ summary judgment motion, make credibility determinations and must view the evidence in plaintiffs favor.

Nor does an agreement to receive a percentage share in the recovery make a transaction champertous per se (see Fairchild Hiller Corp., 28 NY2d at 328, 330 [no champerty despite 75% sharing agreement]). Here, plaintiff explained that the agreement’s adjustment to the purchase price—adding 80% or 85% of the recovery in litigation or settlement, on top of the base purchase price of $1 million—was a commercially reasonable way of structuring the sale of distressed debt instruments that are difficult to value.

Thus, even if the majority is correct that the greater weight of the evidence would support a finding of champerty, because there is conflicting evidence regarding plaintiff’s purpose in purchasing the notes, and because intent is generally a factual question, I believe it was error to grant summary judgment to defendants, finding this transaction champertous as a matter of law. I would, therefore, deny summary judgment on this factual issue and permit the parties to proceed to trial to resolve it.

II. Safe Harbor

Regardless of whether the transaction is champertous as a matter of law (as the majority has determined), or there is a question of fact regarding its allegedly champertous nature (as I have concluded), we must decide whether the safe harbor provision of Judiciary Law § 489 (2) is applicable. That provision exempts the purchase or assignment of notes or other securities from being champertous under subdivision (1) when they have “an aggregate purchase price of at least [$500,000].” I agree with the majority that this statutory language is ambiguous, and that the “purchase price” in subdivision (2) can include either actual payment of, or a binding and bona fide legal obligation to pay, at least $500,000. However, I disagree with the majority’s application of that provision to find, as a matter of law, that the purchase price set forth in the agreement here did not constitute a binding and bona fide obligation on plaintiff’s part.

It is generally inadvisable for courts to look beyond the four corners of a contract to ferret out whether the parties actually intended to pay the purchase price set forth therein (see Morlee Sales Corp. v Manufacturers Trust Co., 9 NY2d 16, 19-20 [1961]; Hutchison v Ross, 262 NY 381, 398 [1933]). Otherwise, courts could regularly become mired down in an attempt to discern the parties’ intent when entering a contract, rather than simply applying the language employed in the contract. However, in those circumstances in which a contract is ambiguous on its face and it becomes necessary to determine the parties’ intent by resorting to extrinsic evidence, the issue becomes one for the jury and summary judgment is inappropriate (see Hartford Acc. & Indem. Co. v Wesolowski, 33 NY2d 169, 172 [1973]). Such is the case here.

The agreement at issue contains arguably inconsistent provisions, and it is unclear on its face as to whether the parties ever intended that DPAG would be able to collect the $1 million base purchase price from plaintiff absent recovery from defendants in this action. Unquestionably, if the obligation to pay was entirely contingent on a successful outcome in this litigation, it would not constitute a binding and bona fide debt. However, the agreement requires plaintiff to pay the $1 million base purchase price by a date certain, without regard to the success of this action. Although that date was five months after the execution of the agreement, the delay was arguably designed to provide plaintiff with an opportunity to raise that sizeable amount. The majority’s reference to plaintiff as a “shell company” with virtually no assets (majority op at 164; see 128 AD3d 553, 555 [1st Dept 2015]), ignores the possibility that plaintiff was capable of raising capital, which it had apparently succeeded in doing for other similar transactions. Moreover, under the contract, plaintiff’s failure to timely pay the base purchase price carried consequences, including the accrual of interest until full payment, and an increase in the purchase price adjustment from 80% to 85% of any recovery.

The majority correctly notes that the failure to timely pay the base purchase price was not designated in the contract as a default event. Contrary to the majority’s conclusory statement, however, neither this omission, nor any provision of the contract—nor even DPAG’s failure to enforce plaintiff’s obligation to pay thus far—necessarily means that the failure to pay does not constitute a breach of the agreement. A failure to perform one’s promise or contractual obligation—such as the payment of $1 million—is the very definition of a breach of contract (see Black’s Law Dictionary [10th ed 2014], breach of contract) and, therefore, need not be—and rarely is—explicitly identified as such in the contract, itself. The deposition testimony cited by the majority, wherein one of DPAG’s principals indicated that he did not think plaintiff’s failure to timely pay would be a breach, is irrevelant unless the contract language is ambiguous so as to require the courts to consider extrinsic evidence to ascertain the parties’ intent. If it is necessary to review extrinsic evidence regarding intent, factual questions exist that a jury must resolve. Even then, courts interpreting the contract are not bound by that one individual’s personal opinion, but may consider it as merely some evidence of DPAG’s intent.

Here, the contract’s provision concerning the base purchase price is susceptible to an interpretation that would create an unqualified, bona fide obligation to pay $1 million. Nevertheless, as the majority points out, other provisions of the contract, such as certain limitations on DPAG’s remedies, raise questions as to whether DPAG intended to enforce its rights in the event of plaintiff’s breach of the payment provision, including whether DPAG is feasibly able to do so. In my view, these factual questions, which stem from contractual provisions that cannot fully be read in harmony, would permit the Court to look beyond the four corners of the agreement. However, I cannot agree with the majority’s conclusion that this was a “sham transaction” as a matter of law (majority op at 171).

Finally, the majority correctly notes this state’s leadership role in promoting and supporting large-scale, complex commercial markets and transactions, and recognizes that participants in such transactions are “sophisticated investors” (majority op at 169). However, in my view, the majority’s decision discourages transactions aimed at fostering accountability in commercial dealings, generally, and, in this particular case, successfully forecloses litigation against parties that are alleged to have committed fraud against all of the investors in more than one portfolio.

In sum, resolution of the questions of whether the transaction was champertous and, if' so, whether the parties’ contract included a bona fide obligation for plaintiff to pay $1 million for the notes, such that the safe harbor provision would apply, requires a factfinder to ascertain the parties’ intent, a determination that is inappropriate on a motion for summary judgment (see Love Funding Corp., 13 NY3d at 200; Bluebird Partners, 94 NY2d at 738; Fairchild Hiller Corp., 28 NY2d at 330). Accordingly, I would reverse the Appellate Division order and deny summary judgment.

Judges Rivera, Abdus-Salaam, Fahey and Garcia concur; Judge Stein dissents in an opinion in which Judge Pigott concurs.

Order affirmed, with costs.

      . Brightwater Capital Management LLC was also named as a defendant, but was dismissed from the case by Supreme Court.

      . 2 Rev Stat of NY, part III, ch III, tit II, art 3, § 71 at 228 (1st ed 1829).

      . We reject Justinian’s contention that Judiciary Law § 489 has no application unless the underlying claim is frivolous or was brought by Justinian to secure “costs.” Justinian’s contention is based on certain language in Love Funding. However, nothing in Love Funding or any of our previous cases stands for the proposition that champerty turns on whether the underlying claim is frivolous, nor does Judiciary Law § 489 require the claim to be frivolous for the prohibition against champerty to apply. Indeed, we make no such finding as to the merits of this lawsuit. The reference in Love Funding to litigation being “ ‘stirred up ... in [an] effort to secure costs’ ” (Love Funding, 13 NY3d at 201, quoting Wightman v Catlin, 113 App Div 24, 28 [2d Dept 1906]) harks back to earlier cases, from before 1907, when “the prohibition of champerty was limited in scope and largely directed toward preventing attorneys from filing suit merely as a vehicle for obtaining costs, which, at the time, included attorneys’ fees” (Bluebird Partners, 94 NY2d at 734 [emphasis added]). Thus, the reference to champerty as a vehicle to obtain costs has no application to a company such as Justinian, which is not a law firm and would not obtain attorneys’ fees by virtue of bringing the lawsuit.

       Judiciary Law § 488 is similar, but applies only to attorneys.


source: Caselaw Access Project

author: Stein, J. Rivera, J.

license: Public Domain

text:
    [65 NE3d 1263, 43 NYS3d 228]
    The People of the State of New York, Appellant, v Alexis Ocasio, Respondent.
    Argued September 7, 2016;
    decided November 1, 2016

      POINTS OF COUNSEL

      Darcel D. Clark, District Attorney, Bronx (Marianne Strac-quadanio, Joseph N. Ferdenzi, Stanley R. Kaplan and Nancy D. Killian of counsel), for appellant.

      Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York City CPaul A. Paterson, Audra J. Soloway and Stephen C. Thompson of counsel), and Robin Steinberg, The Bronx Defenders, Bronx (Marika Meis and Sid Thaxter of counsel), for respondent.
   OPINION OF THE COURT

Stein, J.

Defendant was charged with one count of criminal possession of a weapon in the fourth degree (see Penal Law § 265.01 [1]). The accusatory instrument alleged that a police officer observed defendant with a “rubber-gripped, metal, extendable baton (billy club)” in his rear pants pocket. The officer averred—based on his training and experience—that “said baton device is designed primarily as a weapon, consisting of a tubular, metal body with a rubber grip and extendable feature and used to inflict serious injury upon a person by striking or choking.” Defendant moved to dismiss the accusatory instrument as facially insufficient. Criminal Court granted defendant’s motion, concluding that the allegations describing the object possessed by defendant were insufficient to charge him with possessing a billy within the meaning of Penal Law § 265.01 (1). The Appellate Term affirmed (48 Misc 3d 127[A], 2015 NY Slip Op 50929[U] [App Term, 1st Dept 2015]). A Judge of this Court granted the People leave to appeal (26 NY3d 970 [2015]), and we now reverse.

To be facially sufficient, the factual allegations of a complaint or information, together with those of any supporting depositions, must “provide reasonable cause to believe that the defendant committed the offense charged” in the instrument (CPL 100.40 [1] [b]; [4] [b]; see People v Kalin, 12 NY3d 225, 228 [2009]). A misdemeanor information must also contain “[n]on-hearsay allegations . . . [which] establish, if true, every element of the offense charged and the defendant’s commission thereof” (CPL 100.40 [1] [c]; see People v Smalls, 26 NY3d 1064, 1066 [2015]). We have oft stated that, “ ‘[s]o long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading’ ” (Smalls, 26 NY3d at 1066-1067, quoting People v Casey, 95 NY2d 354, 360 [2000]).

Here, defendant argues that the accusatory instrument is facially insufficient because the object described therein does not constitute a “billy” under Penal Law § 265.01 (1). More specifically, he contends that the accusatory instrument describes the object as being “metal” and “extendable,” whereas, in his view, the statutory term “billy” refers only to short, wooden clubs of a fixed length.

The starting point for our analysis is the statutory language in question (see People v Golo, 26 NY3d 358, 361 [2015]). Under Penal Law § 265.01 (1), a person commits the offense of criminal possession of a weapon in the fourth degree when he or she possesses a “billy.” The legislative prohibition on billies was enacted in 1866 (see L 1866, ch 716). At that time, “billies” or “billy clubs” were generally comprised of wood. The Penal Law does not define the term “billy,” wooden or otherwise, but we recognized, over a century ago, that the weapons prohibited by section 265.01 (1), including billies, had a “well-understood character” (People v Persce, 204 NY 397, 402 [1912]). As commonly occurs with weaponry, however, technological advances throughout the years have resulted in modifications to the traditional wooden billy. Today, such weapons, often referred to as “batons,” may be comprised of metal or synthetic materials, and variations include either fixed length or “extendable” instruments. The issue before us on this appeal distills to whether the “well-understood character” (id.) of a “billy,” as used in Penal Law § 265.01 (1), encompasses an extendable, metal baton.

Because the Penal Law contains no definition of “billy,” we must give the term its “ordinary” and “commonly understood” meaning (People v Versaggi, 83 NY2d 123, 129 [1994]; see People v Morales, 20 NY3d 240, 247 [2012]; People v Quinto, 18 NY3d 409, 417 [2012]). In determining the meaning of statutory language, we “have regarded dictionary definitions as useful guideposts” (Yaniveth R. v LTD Realty Co., 27 NY3d 186, 192 [2016]; see e.g. Versaggi, 83 NY2d at 129). To that end, a billy has been defined as a “small bludgeon that may be carried in the pocket; a club; especially, a policeman’s club” (1 Black’s Law Dictionary 213 [4th ed 1951]). Although some dictionaries note that a billy is usually a wooden instrument (see e.g. Merriam-Webster’s Collegiate Dictionary 122 [11th ed 2003]), the definitions are not limited thereto, and dictionary definitions generally recognize that the term “baton” is synonymous with the word “billy” or “billy club” (see e.g. Webster’s Unabridged Dictionary 207 [2d ed 2001]; Merriam-Webster Online Dictionary, billy club [http://www.merriam-webster.com/dictionary/billy%20club] [accessed Oct. 11, 2016]).

Notably, case law in this state has recognized that the terms “nightstick” and “baton” may be interchangeable with the term “billy” (see People v Talbert, 107 AD2d 842, 843-844 [3d Dept 1985] [defining billy as a “heavy wooden stick with a handle grip which, from its appearance, is designed to be used to strike an individual and not for other lawful purposes” but recognizing that “(a) policeman’s nightstick or billy club is clearly a billy”]; People v Schoonmaker, 40 AD2d 1066, 1066-1067 [3d Dept 1972] [policeman’s club, referred to as a “baton,” “fits any standard definition of the term ‘billy’”]). Likewise, courts in other jurisdictions have held, when interpreting criminal statutes, that a modern-day collapsible, metal baton falls within the common definition of a billy (see Shahit v City of Detroit Police Officer Tosqui, 2005 WL 1345413, *15, 2005 US Dist LEXIS 44942, *47-48 [ED Mich, June 1, 2005, No. 04-71538] [collecting definitions], affd, 192 Fed Appx 382 [6th Cir 2006]; People v Mercer, 42 Cal App 4th Supp 1, 5, 49 Cal Rptr 2d 728, 730 [App Dept, Super Ct 1995]).

As the People point out, Penal Law § 265.20 (b) also lends support to their position that a “baton” may qualify as a type of billy under Penal Law § 265.01 (1). This statute was amended in 1979 in response to an Appellate Division decision equating a police “baton” to a “billy” (L 1979, ch 667; see Mem in Support, Bill Jacket, L 1979, ch 667; Schoonmaker, 40 AD2d at 1066-1067). Concerned that the carrying of batons by auxiliary police officers would violate Penal Law § 265.01 (1), the legislature enacted section 265.20 (b) to create an exception, which states, in relevant part, that the prohibition against possessing a billy set forth in section 265.01 “shall not apply to possession of that type of billy commonly known as a ‘police baton’ ” of specified dimensions if possessed by auxiliary police officers in certain cities (Penal Law § 265.20 [b] [emphasis added]; see Mem in Support, Bill Jacket, L 1979, ch 667). While we are mindful that Penal Law § 265.01 (1) should be interpreted narrowly in light of the absence of an intent element, this language in section 265.20 (b)—which must be harmonized and interpreted consistently with Penal Law § 265.01—plainly demonstrates that the legislature considered “batons” that are designed as weapons to be a “type of billy” (Penal Law § 265.20 [b]; see generally McKinney’s Cons Laws of NY, Book 1, Statutes § 97).

The common thread, consistent with the general understanding of the term, is that a “billy” is a cylindrical or rounded, rigid, club or baton with a handle grip which, from its appearance and inherent characteristics, is designed to be used as a striking weapon and not for other lawful purposes. Such a definition or description does not hinge on the type of material of which the billy is comprised, as is plain from the absence of any statutory language limiting the term “billy” to a specific material. Indeed, although the legislature has banned some weapons made of a specific material, it has not done so with the “billy.” For example, Penal Law § 265.01 (1) initially prohibited only “metal” knuckles, but was later amended to also ban “plastic” knuckles—an amendment made necessary by the legislature’s original qualification of the term “knuckles” as being comprised of “metal.” Absent such an amendment, an interpretation of “metal” knuckles as including “plastic” would conflict with the plain language of the statute. By comparison, the legislature has never prohibited only “wooden” billies—or, as the dissent suggests, “wooden club[s]” (dissenting op at 187)—signaling that its intended definition is not confined to objects made out of a particular material, as defendant would have us hold. Unquestionably, a billy made of metal or other synthetic material remains a billy under the statute in accordance with the ordinary meaning of the term. In so concluding, we do not read the relevant statute “broadly” (dissenting op at 188 n 2) but, rather, give effect to the plain meaning of the statutory language, as the term “billy” is commonly understood.

Similarly, the collapsible or extendable nature of the instrument described in the accusatory instrument does not meaningfully change the essence, functionality, or inherent characteristics of the object such that the baton should be considered a weapon separate and distinct from a billy. Initially, we note that the common definitions of the term “billy” do not specifically require that the instrument be of fixed length, as the dissent assumes. Moreover, to conclude that the mere fact that a billy is collapsible or extendable renders it a different weapon altogether would produce an absurd result whereby, absent a specific statutory amendment, minor modifications to an instrument that do not alter its general characteristics, purpose, or primary use and function as a weapon—modifications which incidentally may, as here, actually render a weapon more dangerous or easily concealed—would insulate the possessor from criminal liability (see People v Garson, 6 NY3d 604, 614 [2006] [“we must interpret a statute so as to avoid an unreasonable or absurd application of the law” (internal quotation marks omitted)]).

In our view, the foregoing leads to the conclusion that the only plausible interpretation of the term “billy” encompasses a collapsible metal baton (see People v Green, 68 NY2d 151, 153 [1986] [noting that, while the interpretation of a criminal statute that is more favorable to defendant should be adopted where there are two plausible constructions, “the core question always remains that of legislative intent”]). Our conclusion in this regard does not rest—as the dissent suggests—on whether or not law enforcement personnel has chosen to use this particular type of instrument. Rather, our determination follows from the common understanding of the term “billy” and our view that the baton at issue here fits comfortably within the definition thereof. Therefore, we hold that the accusatory instrument alleging that defendant possessed a metal, extendable striking weapon with a handle grip was sufficient to charge him with possessing a “billy” under Penal Law § 265.01 (1) so as to provide sufficient notice for him to prepare a defense and to protect him from multiple prosecutions. Defendant raises no preserved constitutional challenge to Penal Law § 265.01 (1) as so interpreted.

Accordingly, the order of the Appellate Term should be reversed and defendant’s motion to dismiss the accusatory instrument denied.

Rivera, J.

(dissenting). The People equate a modern-day, rubber-gripped, metal extendable baton with a centuries-old solid wooden club of fixed length known as a “billy” for purposes of criminal liability under Penal Law § 265.01 (1). While both billies and extendable batons have been used as police batons at different points in history, they are distinct objects. As unpersuasive as the People’s argument that, in the absence of a legislative definition, we may transmute the term “billy,” whose definition has remained stable since the 1850s, into “police baton,” is the majority’s conclusion that the legislature intended the billy to include batons, regardless of functional design and construction. The legislature has not amended the statute to permit this expansive definition, despite opportunity to do so, and faced with a statute which creates a category of weapons that are per se illegal to possess, we must narrowly construe its terms. Therefore, I dissent and would affirm the dismissal of the accusatory instrument.

Penal Law § 265.01 (1) provides:

“A person is guilty of criminal possession of a weapon in the fourth degree when: (1) [such person] possesses any firearm, electronic dart gun, electronic stun gun, gravity knife, switchblade knife, pilum ballistic knife, metal knuckle knife, cane sword, billy, blackjack, bludgeon, plastic knuckles, metal knuckles, chuka stick, sand bag, sandclub, wrist-brace type slingshot or slungshot, shirken or ‘Rung Fu star.’ ”

The statute imposes strict liability, and those prosecuted must be aware of physically possessing one of the listed weapons for the People to establish guilt, without proof of criminal intent or knowledge of the weapon’s legal status (see People v Parrilla, 27 NY3d 400, 404 [2016]). The billy is not defined in the statute, leaving it to the courts to determine its ordinary meaning (Taniguchi v Kan Pacific Saipan, Ltd., 566 US —, —, 132 S Ct 1997, 2002 [2012]). Given the per se nature of the crime and that a defendant’s intent is immaterial, as a matter of fundamental fairness it is incumbent upon us to read Penal Law § 265.01 (1) narrowly, limiting application to objects which bear the essential characteristics of those weapons specifically identified by the legislature. A criminal statute must provide people a reasonable opportunity to understand what conduct it prohibits (see Hill v Colorado, 530 US 703 [2000]). “There can be no doubt that a deprivation of the right of fair warning can result not only from vague statutory language but also from an unforeseeable and retroactive judicial expansion of narrow and precise statutory language” (Bouie v City of Columbia, 378 US 347, 352 [1964]). Furthermore, “due process bars courts from applying a novel construction of a criminal statute to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope” (United States v Lanier, 520 US 259, 266 [1997]). Thus, to place a defendant on notice of the potential exposure to criminal sanction, it must be clear that the object described in the accusatory instrument is the same as the statutorily proscribed weapon (People v Cruz, 48 NY2d 419, 423-424 [1979]).

In People v Persce (204 NY 397 [1912]), this Court upheld the legislature’s authority to impose per se liability for possession of certain specified items, including the billy, stating that their “well-understood character” justified the legislature “in regarding them as dangerous and foul weapons seldom used for justifiable purposes but ordinarily the effective and illegitimate implements of thugs and brutes in carrying out their unlawful purposes” (id. at 402). The Court assumed the legislative understanding of these weapons’ character was informed by the common knowledge of their appearance and instrumentality (id.). Here, the parties concur that a billy was recognized at the time of its inclusion in the predecessor statute to Penal Law § 265.01 in 1866 (L 1866, ch 716, § 1) as a solid wooden club, of fixed dimension and proportions, and that this was the term’s meaning for well over a century.

Yet the accusatory instrument described the object possessed by defendant as a “rubber-gripped, metal, extendable baton (billy club),” which the police officer-deponent asserted “is designed primarily as a weapon, consisting of a tubular, metal body with a rubber grip and extendable feature and used to inflict serious injury upon a person by striking or choking.” This description includes none of the essential distinguishing physical characteristics of a “billy” as defined at the time the statute was passed. Moreover, the allegation that the metal baton may be used to strike, choke or inflict serious injury—a fact commonly shared with a multitude of objects not listed in Penal Law § 265.01 (1)—is an allegation regarding a possible function of an object and not its inherent physical characteristics, and thus is not a factual allegation identifying the object as a billy.

Nevertheless, the majority adopts a wholesale re-envisioning of a billy as a rubber-gripped, metal, extendable baton with a telescoping tube and locking mechanism, on the basis that some dictionary definitions equate a baton with a billy. To the extent the majority relies on modern dictionary definitions for guidance, it does so selectively, for, as the majority recognizes (see majority op at 181-182), there are recent dictionary editions that refer to the historic description of the billy as a wooden club, further establishing these aspects of its “well-understood character” (Persce at 402). A historical illustration of these recognized characteristics is the definition contained in a contemporary dictionary from when the billy was first prohibited, which described it as “a watchman’s club,” with “club” defined as a “heavy staff or piece of wood, usually tapering in form, and wielded with the hand” (An American Dictionary of the English Language 242 [1864]). There is no reason to discard this long-standing definition of a wooden club, which retains its prominence today, in order to impose broad liability under Penal Law § 265.01 (1).

Furthermore, the language in Penal Law § 265.20 (b) does not support the notion that a billy includes a metal extendable police baton. The legislature amended Penal Law § 265.20 (b) in 1979 in order to exempt certain auxiliary police officers from liability under Penal Law § 265.01 for “possession of that type of billy commonly known as a ‘police baton’ which is twenty-four to twenty-six inches in length and no more than one and one-quarter inches in thickness” (Penal Law § 265.20 [b]). The precision of this description clearly indicates that the legislature was referring to the traditional wooden billy, of fixed dimension and carried by police officers since the middle of the nineteenth century. While the legislature specifically defined a particular type of police baton to be a type of billy, it does not follow that any baton used by the police, without regard to its physical characteristics, is a billy. This is a simple but crucial distinction.

Despite the specificity of Penal Law § 265.20 (b) and the long understood common definition of the billy as a wooden club of fixed length, the majority concludes that a rubber-gripped, metal, extendable baton of indeterminate length and thickness with a locking mechanism is now the proscribed “billy.” However, the majority’s “common thread” between the two— “that a ‘billy’ is a . . . club or baton with a handle grip which, from its appearance and inherent characteristics, is designed to be used as a striking weapon and not for other lawful purposes” (majority op at 183)—is simply another means of defining the object beyond the common understanding of the definition both at the time the statute was enacted and at present. Moreover, the differences between billies and the class of baton described in the accusatory instrument give them distinct advantages and disadvantages. For example, while a billy has a set length and can be cumbersome to carry, an extendable baton is lighter and fits more easily on a police officer’s belt. Even the majority recognizes that these differences between a billy and an extendable baton can render the latter more dangerous as it is easily concealable (majority op at 184). The differences are, of course, important as the statute enumerates many similar striking weapons with handle grips, meaning that accepting the majority’s definition makes the inclusion of blackjack, bludgeon, and sandclub alongside billy redundant, thus violating the rule against superfluities (see Hibbs v Winn, 542 US 88, 101 [2004]). Indeed, as defendant notes, as recently as 2013 the People argued that a nearly identical object was a “bludgeon” (see People v Lopresti, Crim Ct, Bronx County, Nov. 21, 2013, docket No. 2012BX053605, slip op at 1, 9).

While the statute is not ambiguous, a broad interpretation of the term “billy” injects uncertainty into our Penal Law and deprives defendants of notice and fair warning as to what weapons, created through technological advances in design and construction, are now within the scope of Penal Law § 265.01. Confusion will certainly lead to claims of statutory ambiguity and for the application of the rule of lenity, which provides “if two constructions of a criminal statute are plausible, the one more favorable to the defendant should be adopted” (People v Green, 68 NY2d 151, 153 [1986]). We can avoid this outcome by adhering to the well-established understanding of the billy and recognizing that it does not include the object described in the accusatory instrument.

It bears noting that the majority’s assertion that a possessor could escape criminal liability for a slightly modified, more dangerous weapon is beside the point because the object either is or is not a billy. Moreover, this appeal does not involve a minor cosmetic change to a billy; here we are presented with an object dramatically different in its physical characteristics. Regardless, whether a metal extendable baton should be added to Penal Law § 265.01 (1) because it is more dangerous than a solid wooden billy club is a policy matter beyond the scope of our judicial authority (Steelworkers v Weber, 443 US 193, 221 [1979] [it is an oft-stated principle that the judiciary’s “duty is to construe rather than rewrite legislation”]; Morissette v United States, 342 US 246, 263 [1952] [the judiciary “should not enlarge the reach of enacted crimes by constituting them from anything less than the incriminating components contemplated by the words used in the statute”]). If this recent tool of law enforcement is to be treated as a per se weapon, imposing criminal liability without proof of intent, that decision must be made by the legislature. As is obvious from the statute’s exclusion of other dangerous weapons, the legislature chooses which weapons are per se illegal under Penal Law § 265.01 (1), and which weapons require the People to establish a defendant’s possession was with the intent to use unlawfully, as provided under Penal Law § 265.01 (2).

For these reasons, I would affirm the order below dismissing the accusatory instrument as facially insufficient.

Judges Abdus-Salaam, Fahey and Garcia concur; Judge Rivera dissents and votes to affirm in an opinion in which Chief Judge DiFiore and Judge Pigott concur.

Order reversed and defendant’s motion to dismiss the accusatory instrument denied.

      . In 1866, the relevant statute did not criminalize mere possession of the listed weapons (see L 1866, ch 716). The legislature amended the statute in 1905 to make possession of the enumerated weapons, including a “billy,” a strict liability offense (see L 1905, ch 92, § 2).

      . To the extent the dissent implies that the legislature’s failure to enact a 2008 proposed amendment adding “collapsible batons” to Penal Law § 265.01 (1) supports its position that the existing prohibition on “billies” does not include collapsible batons, we note that “inaction by the Legislature is inconclusive in determining legislative intent” (Matter of New York State Assn. of Life Underwriters v New York State Banking Dept., 83 NY2d 353, 363 [1994]; Clark v Cuomo, 66 NY2d 185, 190-191 [1985]) and such inaction is susceptible to varying interpretations. In any event, more recently proposed legislation arguably suggests that at least some of the members of the legislature interpret the prohibition on “billies” to include “collapsible batons”; that legislation would amend Penal Law § 265.20 (b) to expressly permit auxiliary police officers to carry “collapsible batons” by exempting them from application of the prohibition on billies in Penal Law § 265.01 (1) (see 2015 NY Senate Bill S1142; 2015 NY Assembly Bill A59).

      . Contrary to the dissent’s assertion, this definition does not render superfluous the inclusion of the terms blackjack, bludgeon, and sandclub in Penal Law § 265.01 (1). While an in-depth discussion of the definitions of such weapons is outside of the scope of our holding in this case, it suffices to note that such instruments have defining characteristics that distinguish them from billies (see generally People v McPherson, 220 NY 123, 125 [1917] [a bludgeon has one heavier or thicker end]; see People v Guevara, 86 Misc 2d 1044, 1045 [Crim Ct, Bronx County 1976] [a blackjack has a characteristically flexible handle]; see also 2 Black’s Law Dictionary 1507 [4th ed 1951] [a sandbag is defined as “(a) tube of strong, flexible material filled with sand” (emphasis added)]).

      . For that reason, any challenge based on the void for vagueness doctrine (see generally People v Cruz, 48 NY2d 419, 423 [1979]), addressed by the dissent, is not properly before us.

      . The American Heritage Dictionary defines “billy” as “[a] billy club,” which is defined as a “short wooden club, especially] a police officer’s [club]” (The American Heritage Dictionary 86 [3d ed 1994]). Webster’s Third New International Dictionary defines a “billy” as “a heavy, usu[ally] wooden weapon for delivering blows . . . especially] ... a policeman’s club” (Webster’s Third New International Dictionary 216 [1971]).

      . The majority argues that because the legislature has in the past banned weapons made of a specific material, but not the billy, it must have intended that the billy be defined broadly (majority op at 183-184). Quite the opposite. The fact that the legislature found it necessary to update Penal Law § 265.01 (1) to add plastic knuckles confirms that the statute is not to be read broadly and instead applies only to those specifically described weapons listed. Similarly, the legislature has had ample opportunity to amend the statute to include a police baton made of materials unimagined in the 1800s, but has not done so. For example, in 2007, the State Senate did in fact pass an amendment to add “collapsible batons” to the statute, but the amendment did not pass the Assembly (see 2007 NY Senate Bill S7415). Contrary to the majority’s assertion (majority op at 183 n 2), the 2015 proposed amendment to Penal Law § 265.20 (b) reaffirms that the billy considered synonymous with a police baton has a distinctive character: 24 to 26 inches in length and no more than IV4 inches thick.

      . The majority states that these “instruments have defining characteristics that distinguish them from billies” (majority op at 183 n 3). We concur, but maintain that our colleagues definition of “billy” would make these distinctions superfluous.

      . For example, when the legislature decided to add plastic knuckles to Penal Law § 265.01, it did so because they could be taken through metal detectors.