author: Graffeo, J.

text:
    [968 NE2d 459, 945 NYS2d 222]
    Steven Simkin, Respondent, v Laura Blank, Appellant.
    Argued February 14, 2012;
    decided April 3, 2012

      POINTS OF COUNSEL

      Emery Celli Brinckerhoff & Abady LLP, New York City (Richard D. Emery and Adam R. Pulver of counsel), for appellant.
    I. New York’s fundamental public policy of finality in the equitable distribution process bars the relief Steven Simkin seeks. (Boronow v Boronow, 71 NY2d 284; Merrill Lynch, Pierce, Fenner & Smith v Benjamin, 1 AD3d 39; Rainbow v Swisher, 72 NY2d 106; Kojovic v Goldman, 35 AD3d 65; Siegel v Siegel, 132 AD2d 247, 74 NY2d 602; O’Brien v O’Brien, 66 NY2d 576; Welsh v Lawler, 282 AD2d 977; In re Vivendi Universal, S.A. Sec. Litig., 605 F Supp 2d 586; In re MBIA, Inc., Sec. Litig., 700 F Supp 2d 566; Freudenberg v E*Trade Fin. Corp., 712 F Supp 2d 171.) II. Steven Simkin has not (and cannot) allege any mutual mistake as to a fundamental assumption of the agreement. (Matter of Gould v Board of Educ. of Sewanhaka Cent. High School Dist., 81 NY2d 446; George Backer Mgt. Corp. v Acme Quilting Co., 46 NY2d 211; Godfrey v Spano, 13 NY3d 358; Maas v Cornell Univ., 94 NY2d 87; Centro Empresarial Cempresa S.A. v América Móvil, S.A.B. de C.V., 17 NY3d 269; Rowe v Great Atl.

      & Pac. Tea Co., 46 NY2d 62; Shell Trademark Mgt. BV & Motiva Enters., LLC v Ray Thomas Petroleum Co., Inc., 642 F Supp 2d 493; Palestine Monetary Auth. v Strachman, 62 AD3d 213; Walker v City of New York, 46 AD3d 278; Vadney v United Traction Co., 193 App Div 329.) III. Even if there were a mutual mistake, rescission, not reformation, is the only remedy. (Chimart Assoc. v Paul, 66 NY2d 570; Harris v Uhlendorf, 24 NY2d 463; Hart v Blabey, 287 NY 257; True v True, 63 AD3d 1145; Matter of Gould v Board of Educ. of Sewanhaka Cent. High School Dist., 81 NY2d 446; Symphony Space v Pergola Props., 214 AD2d 66; Feldman v Grant, 213 AD2d 340.) IV Steven Simkin has no claim for unjust enrichment as to the disbursement of assets pursuant to a contract. (IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132; Goldman v Metropolitan Life Ins. Co., 5 NY3d 561; EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11; Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382; Salomon v North Br. & Mercantile Ins. Co. of N.Y., 215 NY 214; Curtis v Albee, 167 NY 360.) V The parties’ extensive releases bar Steven Simkin’s claims. (Mangini v McClurg, 24 NY2d 556; Gibli v Kadosh, 279 AD2d 35; Fleming v Ponziani, 24 NY2d 105; Liftman v Magee, 54 AD3d 14; Centro Empresarial Cempresa S.A. v América Móvil, S.A.B. de C.V., 17 NY3d 269.)

      Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York City (Allan J. Arffa, Mark H. Alcott, William J. Taylor, Jr., and Susannah K. Howard of counsel), for respondent.
    I. The complaint states a cause of action for reformation based on mutual mistake. (Leon v Martinez, 84 NY2d 83; EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11; Morone v Morone, 50 NY2d 481; People v Coventry First LLC, 13 NY3d 108; Hurrell-Harring v State of New York, 15 NY3d 8; Lanzi v Brooks, 43 NY2d 778; Pludeman v Northern Leasing Sys., Inc., 10 NY3d 486; I. Shulman & Son v Jorling, 189 AD2d 1012; M & T Bank Corp. v Gemstone CDO VII, Ltd., 23 Misc 3d 1105[A], 2009 NY Slip Op 50590[U], 68 AD3d 1747; Matter of Gould v Board of Educ. of Sewanhaka Cent. High School Dist., 81 NY2d 446.) II. The concept of “finality” and Commodity Futures Trading Commn. v Walsh (17 NY3d 162 [2011]) do not preclude reformation of the agreement. (Brender v Brender, 199 AD2d 665; Banker v Banker, 56 AD3d 1105; Levine v Levine, 56 NY2d 42; Christian v Christian, 42 NY2d 63; Surlak v Surlak, 95 AD2d 371; Rainbow v Swisher, 72 NY2d 106; Boronow v Boronow, 71 NY2d 284; Kojovic v Goldman, 35 AD3d 65; Merrill Lynch, Pierce, Fenner & Smith v Benjamin, 1 AD3d 39; Welsh v Lawler, 282 AD 2d 977.) III. The agreement does not preclude Steven Simkin’s unjust enrichment claim. (IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132; IIG Capital LLC v Archipelago, L.L.C., 36 AD3d 401; Heller, Horowitz & Feit v Stage II Apparel Corp., 270 AD2d 58; Joseph Sternberg, Inc. v Walter 36th St. Assoc., 187 AD2d 225.) IV The releases do not bar Steven Simkin’s claims. (House v Wechsler, 104 App Div 124; Mangini v McClurg, 24 NY2d 556; Verstreate v Cohen, 242 AD2d 862; Metz v Metz, 175 AD2d 938; Curry v Episcopal Health Servs., 248 AD2d 662; Schroeder v Connelly, 46 AD3d 1439; Gibli v Kadosh, 279 AD2d 35; Carola v NKO Contr. Corp., 205 AD2d 931; Centro Empresarial Cempresa S.A. v América Móvil, S.A.B. de C.V., 17 NY3d 269.)
   OPINION OF THE COURT

Graffeo, J.

The primary issue before us is whether plaintiff has presented facts sufficient to support the reformation or setting aside of the parties’ marital settlement agreement based on a claim of mutual mistake pertaining to an investment account. We conclude that plaintiff has failed to state a cause of action under CPLR 3211 and therefore dismiss the amended complaint.

Plaintiff Steven Simkin (husband) and defendant Laura Blank (wife) married in 1973 and have two children. Husband is a partner at a New York law firm and wife, also an attorney, is employed by a university. After almost 30 years of marriage, the parties separated in 2002 and stipulated in 2004 that the cut-off date for determining the value of marital assets would be September 1, 2004. The parties, represented by counsel, spent two years negotiating a detailed 22-page settlement agreement, executed in June 2006. In August 2006, the settlement agreement was incorporated, but not merged, into the parties’ final judgment of divorce.

The settlement agreement set forth a comprehensive division of marital property. Husband agreed to pay wife $6,250,000 “[a]s and for an equitable distribution of property . . . and in satisfaction of the Wife’s support and marital property rights.” In addition, wife retained title to a Manhattan apartment (subject to a $370,000 mortgage), an automobile, her retirement accounts and any “bank, brokerage and similar financial accounts in her name.” Upon receipt of her distributive payment, wife agreed to convey her interest in the Scarsdale marital residence to husband. Husband received title to three automobiles and kept his retirement accounts, less $368,000 to equalize the value of the parties’ retirement accounts. Husband further retained “bank, brokerage and similar financial accounts” that were in his name, two of which were specifically referenced—his capital account as a partner at the law firm and a Citibank account.

The agreement also contained a number of mutual releases between the parties. Each party waived any interest in the other’s law license and released or discharged any debts or further claims against the other. Although the agreement acknowledged that the property division was “fair and reasonable,” it did not state that the parties intended an equal distribution or other designated percentage division of the marital estate. The only provision that explicitly contemplated an equal division was the reference to equalizing the values of the parties’ retirement accounts. The parties further acknowledged that the settlement constituted

“an agreement between them with respect to any and all funds, assets or properties, both real and personal, including property in which either of them may have an equitable or beneficial interest wherever situated, now owned by the parties or either of them, or standing in their respective names or which may hereafter be acquired by either of them, and all other rights and obligations arising out of the marital relationship.”

At the time the parties entered into the settlement, one of husband’s unspecified brokerage accounts was maintained by Bernard L. Madoff Investment Securities (the Madoff account). According to husband, the parties believed the account was valued at $5.4 million as of September 1, 2004, the valuation date for marital assets. Husband withdrew funds from this account to pay a portion of his distributive payment owed wife in 2006, and continued to invest in the account subsequent to the divorce. In December 2008, Bernard Madoff’s colossal Ponzi scheme was publicly exposed and Madoff later pleaded guilty to federal securities fraud and related offenses.

As a result of the disclosure of Madoff s fraud, in February 2009—about cl1l% years after the divorce was finalized—husband commenced this action against wife alleging two causes of action: (1) reformation of the settlement agreement predicated on a mutual mistake and (2) unjust enrichment. The amended complaint asserts that the settlement agreement was intended to accomplish an “approximately equal division of [the couple’s] marital assets,” including a 50-50 division of the Madoff account. To that end, the amended complaint states that $2,700,000 of wife’s $6,250,000 distributive payment represented her “share” of the Madoff account. Husband alleges that the parties’ intention to equally divide the marital estate was frustrated because both parties operated under the “mistake” or misconception as to the existence of a legitimate investment account with Madoff which, in fact, was revealed to be part of a fraudulent Ponzi scheme. The amended complaint admits, however, that funds were previously “ ‘withdrawn’ from the ‘Account’ ” by husband and applied to his obligation to pay wife.

In his claim for reformation, husband requests that the court “determine the couple’s true assets with respect to the Madoff [a]ccount” and alter the settlement terms to reflect an equal division of the actual value of the Madoff account. The second cause of action seeks restitution from wife “in an amount to be determined at trial” based on her unjust enrichment arising from husband’s payment of what the parties mistakenly believed to be wife’s share of the Madoff account. Wife moved to dismiss the amended complaint on several grounds, including a defense founded on documentary evidence (see CPLR 3211 [a] [1]) and for failure to state a cause of action (see CPLR 3211 [a] [7]).

Supreme Court granted wife’s motion and dismissed the amended complaint. The Appellate Division, with two Justices dissenting, reversed and reinstated the action (80 AD3d 401 [1st Dept 2011]). The Appellate Division granted wife leave to appeal on a certified question (2011 NY Slip Op 70450[U] [2011]), and we now reverse and reinstate Supreme Court’s order of dismissal.

Wife argues that the Appellate Division erred in reinstating the amended complaint because the allegations, even if true, fail to appropriately establish the existence of a mutual mistake at the time the parties entered into their settlement agreement. Rather, she claims that, at most, the parties may have been mistaken as to the value of the Madoff account, but not its existence. Wife also contends that allowing husband’s claims to go forward years after the division of property and issuance of a divorce decree would undermine policy concerns regarding finality in divorce cases. Husband responds that the amended complaint states a viable claim because the parties were both unaware and misled as to the legitimacy of the Madoff account, which, in husband’s view, “did not in fact ever exist” due to the fraud occasioned on investors.

On a motion to dismiss under CPLR 3211, the pleading is to be given a liberal construction, the allegations contained within it are assumed to be true and the plaintiff is to be afforded every favorable inference (see ABN AMRO Bank, N.V. v MBIA Inc., 17 NY3d 208, 227 [2011]). At the same time, however, “allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such consideration” (Maas v Cornell Univ., 94 NY2d 87, 91 [1999] [internal quotation marks omitted]). Moreover, a claim predicated on mutual mistake must be pleaded with the requisite particularity necessitated under CPLR 3016 (b).

Marital settlement agreements are judicially favored and are not to be easily set aside (see McCoy v Feinman, 99 NY2d 295, 302 [2002]; Christian v Christian, 42 NY2d 63, 71-72 [1977]). Nevertheless, in the proper case, an agreement may be subject to rescission or reformation based on a mutual mistake by the parties (see Matter of Gould v Board of Educ. of Sewanhaka Cent. High School Dist., 81 NY2d 446, 453 [1993]; Chimart Assoc. v Paul, 66 NY2d 570, 573 [1986]). Similarly, a release of claims may be avoided due to mutual mistake (see Centro Empresarial Cempresa S.A. v América Móvil, S.A.B. de C.V., 17 NY3d 269, 276 [2011]). Based on these contract principles, the parties here agree that this appeal turns on whether husband’s amended complaint states a claim for relief under a theory of mutual mistake.

We have explained that “[t]he mutual mistake must exist at the time the contract is entered into and must be substantial” (Gould, 81 NY2d at 453). Put differently, the mistake must be “so material that ... it goes to the foundation of the agreement” (Da Silva v Musso, 53 NY2d 543, 552 [1981] [internal quotation marks and citations omitted]; see also 27 Lord, Willis-ton on Contracts § 70:12 [4th ed] [“The parties must have been mistaken as to a basic assumption of the contract . . . Basic assumption means the mistake must vitally affect the basis upon which the parties contract”]). Court-ordered relief is therefore reserved only for “exceptional situations” (Da Silva, 53 NY2d at 552 [internal quotation marks omitted]). The premise underlying the doctrine of mutual mistake is that “the agreement as expressed, in some material respect, does not represent the meeting of the minds of the parties” (Gould, 81 NY2d at 453 [internal quotation marks and citations omitted]).

Although we have not addressed mutual mistake claims in the context of marital settlement agreements, the parties cite a number of Appellate Division cases that have analyzed this issue. Husband relies on True v True (63 AD3d 1145, 1146 [2d Dept 2009]), where the settlement agreement provided that the husband’s stock awards from his employer would be “divided 50-50 in kind” and recited that 3,655 shares were available for division between the parties. After the wife redeemed her half of the shares, the husband learned that only 150 shares remained and brought an action to reform the agreement, arguing that the parties mistakenly specified the gross number of shares (3,655) rather than the net number that was actually available for distribution. The Second Department agreed and reformed the agreement to effectuate the parties’ intent to divide the shares equally, holding that the husband had established “that the parties’ use of 3,655 gross shares was a mutual mistake because it undermined their intent to divide the net shares available for division, 50-50 in kind” {id. at 1148).

Other cases relied on by husband involve marital settlement agreements that were set aside or reformed because a mutual mistake rendered a portion of the agreement impossible to perform. In Banker v Banker (56 AD3d 1105 [2008]), the Third Department reformed a provision of a marital settlement that required the subdivision of a parcel of real property because the parties were unaware of a restrictive covenant against further subdivision. Similarly, in Brender v Brender (199 AD2d 665 [1993]), the Third Department set aside a settlement provision that allowed the wife to purchase health insurance through her husband’s plan where both parties were mistaken in their belief that such coverage was available.

Wife in turn points to appellate cases denying a spouse’s request to reopen a marital settlement agreement where the final value of an asset was not what the parties believed at the time of the divorce (see Greenwald v Greenwald, 164 AD2d 706, 721 [1st Dept 1991], lv denied 78 NY2d 855 [1991] [stating that “posttrial changes in value may not be used to reallocate the distribution of marital assets”]). In Kojovic v Goldman (35 AD3d 65 [2006], lv denied 8 NY3d 804 [2007]), for example, the First Department dismissed the wife’s reformation and rescission claims where the husband unexpectedly sold his interest in a company for $18 million after the divorce. And in Etzion v Etzion (62 AD3d 646 [2009], lv dismissed 13 NY3d 824 [2009]), the Second Department rejected the wife’s mutual mistake claim where the market value of the husband’s warehouse property substantially increased in value after the city adopted a rezoning plan subsequent to the parties’ settlement.

Applying these legal principles, we are of the view that the amended complaint fails to adequately state a cause of action based on mutual mistake. As an initial matter, husband’s claim that the alleged mutual mistake undermined the foundation of the settlement agreement, a precondition to relief under our precedents, is belied by the terms of the agreement itself. Unlike the settlement agreement in True that expressly incorporated a “50-50” division of a stated number of stock shares, the settlement agreement here, on its face, does not mention the Madoff account, much less evince an intent to divide the account in equal or other proportionate shares (see Centro, 17 NY3d at 277 [explaining that “courts should be extremely reluctant to interpret an agreement as impliedly stating something which the parties have neglected to specifically include”] [internal quotation marks and citation omitted]). To the contrary, the agreement provides that the $6,250,000 payment to wife was “in satisfaction of [her] support and marital property rights,” along with her release of various claims and inheritance rights. Despite the fact that the agreement permitted husband to retain title to his “bank, brokerage and similar financial accounts” and enumerated two such accounts, his alleged $5.4 million Madoff investment account is neither identified nor valued. Given the extensive and carefully negotiated nature of the settlement agreement, we do not believe that this presents one of those “exceptional situations” (Da Silva, 53 NY2d at 552 [internal quotation marks omitted]) warranting reformation or rescission of a divorce settlement after all marital assets have been distributed.

Even putting the language of the agreement aside, the core allegation underpinning husband’s mutual mistake claim—that the Madoff account was “nonexistent” when the parties executed their settlement agreement in June 2006—does not amount to a “material” mistake of fact as required by our case law. The premise of husband’s argument is that the parties mistakenly believed that they had an investment account with Bernard Madoff when, in fact, no account ever existed. In husband’s view, this case is no different from one in which parties are under a misimpression that they own a piece of real or personal property but later discover that they never obtained rightful ownership, such that a distribution would not have been possible at the time of the agreement. But that analogy is not apt here. Husband does not dispute that, until the Ponzi scheme began to unravel in late 2008—more than two years after the property division was completed—it would have been possible for him to redeem all or part of the investment. In fact, the amended complaint contains an admission that husband was able to withdraw funds (the amount is undisclosed) from the account in 2006 to partially pay his distributive payment to wife. Given that the mutual mistake must have existed at the time the agreement was executed in 2006 (see Gould, 81 NY2d at 453), the fact that husband could no longer withdraw funds years later is not determinative.

This situation, however sympathetic, is more akin to a marital asset that unexpectedly loses value after dissolution of a marriage; the asset had value at the time of the settlement but the purported value did not remain consistent. Viewed from a different perspective, had the Madoff account or other asset retained by husband substantially increased in worth after the divorce, should wife be able to claim entitlement to a portion of the enhanced value? The answer is obviously no. Consequently, we find this case analogous to the Appellate Division precedents denying a spouse’s attempt to reopen a settlement agreement based on post-divorce changes in asset valuation.

Finally, husband’s unjust enrichment claim likewise fails to state a cause of action. It is well settled that, “[w]here the parties executed a valid and enforceable written contract governing a particular subject matter, recovery on a theory of unjust enrichment for events arising out of that subject matter is ordinarily precluded” (IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 142 [2009]).

Accordingly, the order of the Appellate Division should be reversed, with costs, the order of Supreme Court reinstated, and the certified question answered in the negative.

Chief Judge Lippman and Judges Ciparick, Read, Pigott and Jones concur; Judge Smith taking no part.

Order reversed, etc.

       Husband notes in his brief that the Madoff account may, at a future point, have some value depending on how successful the trustee for the liquidation of Bernard L. Madoff Investment Securities is in recovering and distributing property to customers (see In re Bernard L. Madoff Inv. Sec. LLC, 654 F3d 229 [2d Cir 2011]).


source: Caselaw Access Project

author: Read, J.

license: Public Domain

text:
    [968 NE2d 451, 945 NYS2d 214]
    In the Matter of Michael Lesher, Appellant, v Charles J. Hynes, as District Attorney of Kings County, New York, et al., Respondents.
    Argued February 14, 2012;
    decided April 3, 2012

      POINTS OF COUNSEL

      Michael Lesher, Passaic, New Jersey, appellant pro se.
    I. The Freedom of Information Law exemption asserted by the District Attorney, and upheld by the Appellate Division, is contrary to law. (Matter of Moore v Santucci, 151 AD2d 677; Matter of Gould

      v New York City Police Dept., 89 NY2d 267; Matter of Hanig v State of N.Y. Dept, of Motor Vehs., 79 NY2d 106; Matter of Fink v Lefkowitz, 47 NY2d 567; Matter of Verizon N.Y., Inc. v Mills, 60 AD3d 958; Pittari v Pirro, 179 Misc 2d 241; Matter of Legal Aid Socy. v New York City Police Dept., 274 AD2d 207.) II. The Appellate Division wrongly applied the terms of Civil Rights Law § 50-b in defiance of all existing precedent. (Matter of Fappiano v New York City Police Dept., 95 NY2d 738; Doyen v McMahon, 306 AD2d 708; Matter of Karlin v McMahon, 96 NY2d 842.) III. The Appellate Division misread the facts and posture of this case. (Chase Manhattan Bank v Each Individual Underwriter Bound to Lloyd’s Policy No. 790/004A89005, 287 AD2d 303; Thoreson v Penthouse Intl., 80 NY2d 490.) IV Affirmance of the Appellate Division’s opinion would frustrate the purpose of the Freedom of Information Law.

      Charles J. Hynes, District Attorney, Brooklyn (Morgan J. Dennehy, Leonard Joblove and Jodi L. Mandel of counsel), for respondents.
    The denial of access to the documents that the appellant requested pursuant to the Freedom of Information Law was correct; all of the documents were exempt from disclosure because they were part of an ongoing prosecution, and most of the documents were exempt because they tended to identify the victims of sex offenses. (Matter of Heintz v Brown, 80 NY2d 998; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222; Matter of Legal Aid Socy. v New York City Police Dept., 274 AD2d 207; Matter of Fink v Lefkowitz, 47 NY2d 567; Matter of Pittari v Pirro, 258 AD2d 202; Matter of Terry D., 81 NY2d 1042; People v Gissendanner, 48 NY2d 543; NLRB v Robbins Tire & Rubber Co., 437 US 214; Title Guar. Co. v National Labor Relations Bd., 534 F2d 484, 429 US 834; Matter of Fappiano v New York City Police Dept., 95 NY2d 738.)

      New York Civil Liberties Union Foundation, New York City (Christopher Dunn, Corey Stoughton and Daniel Mullkoff of counsel), for New York Civil Liberties Union, amicus curiae.
    I. This Court should reverse the Appellate Division and hold that respondents were obligated to use redaction to the extent feasible rather than withholding responsive records in their entirety. (Matter of Karlin v McMahon, 96 NY2d 842; Matter of Short v Board of Mgrs. of Nassau County Med. Ctr., 57 NY2d 399; Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557; Matter of Xerox Corp. v Town of Webster, 65 NY2d 131; Matter of Gould v New York City Police Dept., 89 NY2d 267; Matter of Daily Gazette Co. v City of Schenectady, 93 NY2d 145; Matter of Data Tree, LLC v Romaine, 9 NY3d 454; Matter of Schenectady County Socy. for the Prevention of Cruelty to Animals, Inc. v Mills, 18 NY3d 42.) II. The Court should require agencies invoking the law enforcement exemption to demonstrate a particularized and specific factual basis for concluding that the release of records would actually interfere with ongoing investigations or judicial proceedings. (Matter of Data Tree, LLC v Romaine, 9 NY3d 454; Matter of Fink v Lefkowitz, 47 NY2d 567; Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557; Matter of Gould v New York City Police Dept., 89 NY2d 267; Matter of New York Times Co. v City of N.Y. Fire Dept., 4 NY3d 477; NLRB v Robbins Tire & Rubber Co., 437 US 214; Title Guar. Co. v National Labor Relations Bd., 534 F2d 484; Matter of Legal Aid Socy. v New York City Police Dept., 274 AD2d 207; Matter of Pittari v Pirro, 258 AD2d 202; Medellín v Texas, 552 US 491.) III. The Court should also reverse the Appellate Division for failure to require a particularized and specific justification for respondents’ invocation of Civil Rights Law § 50-b.
   OPINION OF THE COURT

Read, J.

In 1984, a Kings County grand jury handed down an indictment charging Avrohom Mondrowitz with multiple counts of sexual abuse involving young boys. But he had already fled from the United States to Israel, one step ahead of an arrest warrant. Attempts to extradite Mondrowitz foundered early on, apparently because differences in Israeli and New York law prevented his return under the extradition treaty then in force between the United States and Israel.

At some point, petitioner Michael Lesher, an attorney and author, became interested in the Mondrowitz case. On August 4, 1998, he made a request to the District Attorney of Kings County pursuant to New York’s Freedom of Information Law (FOIL) (Public Officers Law § 84 et seq.) for documents relating to Mondrowitz. The District Attorney furnished material in response, including police reports, statements edited to remove the names of alleged victims and witnesses and some correspondence with federal agencies.

On October 17, 2007, nearly a decade later, Lesher made a second FOIL request to the District Attorney in which he sought

“[a]ny and all records, files, notes, correspondence, memoranda or other documents pertinent in any way to the matter State v. Mondrowitz, Indictment No. 7693/84 and pertaining to the time period from September 1, 1993 to the present date, including but not limited to any correspondence between the D.A.’s office and the Department of Justice, the Department of State or any other branch of the United States government.”

After considerable delay, the FOIL records access officer denied Lesher’s request on December 23, 2008, invoking Public Officers Law § 87 (2) (e) (i)-(iv), the law enforcement exemption, because the records sought “pertain[ed] to an open case in that a bench warrant was issued on 02/21/1985.” In particular, she relied on section 87 (2) (e) (i), which allows an agency to “deny access to records or portions thereof that . . . are compiled for law enforcement purposes and which, if disclosed, would . . . interfere with law enforcement investigations or judicial proceedings.” Lesher took an administrative appeal of this denial, which the FOIL appeals officer upheld in a letter dated January 29, 2009. She stated that “because the documents [sought were] relevant to an ongoing prosecution, . . . disclosure at this time would interfere with the prosecution.”

Lesher apparently argued in his administrative appeal that Public Officers Law § 87 (2) (e) (i) was inapplicable to his 2007 FOIL request because in 1998 the District Attorney had furnished several documents associated with the Mondrowitz case. The FOIL appeals officer replied that in 1998, though,

“the prosecution against Mr. Mondrowitz, although open and pending, was not actually active due to the fact that we were unable to extradite Mr. Mondrowitz from Israel because the extradition treaty in force at the time between Israel and the United States did not cover Mr. Mondrowitz’s crimes. However, the new extradition treaty, which went into effect in January, 2007, and now includes Mr. Mondrowitz’s crimes, makes extradition a possibility. Thus, the prosecution of Mr. Mondrowitz is now viable, and, therefore, the above-cited FOIL exemption [i.e., Public Officers Law § 87 (2) (e) (i)] is fully applicable.”

By verified petition sworn to May 26, 2009, Lesher commenced this CPLR article 78 proceeding to compel the District Attorney and the FOIL appeals officer to comply with his records request. In his petition, Lesher alleged that the District Attorney resumed efforts to extradite Mondrowitz in October 2007, and

“Mondrowitz was arrested in Israel the next month, November 2007, and has been incarcerated . . . since then awaiting extradition. His extradition was ordered by the Government of Israel, which order was affirmed by a District Court in Jerusalem. The decision of Israel’s Supreme Court on Mondrowitz’s appeal of his extradition order is still awaited.”

He insisted that it was “extremely unlikely” that “investigatory documents” had been added to the Mondrowitz case file after September 1993, the beginning of the time period addressed by his FOIL request. He further urged that there was “no ‘judicial proceeding’ against Mondrowitz ... in progress” except in Israel; and that the District Attorney had not explained how the release of “documents, including correspondence, pertaining to the renewed extradition request conveyed to Israel in October 2007” interfered with law enforcement investigations or judicial proceedings.

The FOIL appeals officer countered in an affirmation dated June 18, 2009 that Lesher was “wrong” to claim that the District Attorney was not entitled to rely upon Public Officers Law § 87 (2) (e) (i) to deny access to the requested documents. She cited Matter of Pittari v Pirro (258 AD2d 202 [2d Dept 1999], lv denied 94 NY2d 755 [1999] [where a criminal proceeding is pending, documents are exempt under Public Officers Law § 87 (2) (e) (i) upon “generic determination” that disclosure of categories of records would create broad risks of harm; a document-by-document showing of interference is not required]) and Matter of Legal Aid Socy. v New York City Police Dept. (274 AD2d 207 [1st Dept 2000], lv denied 95 NY2d 956 [2000] [same]) for the proposition that the “mere fact” that documents were compiled in furtherance of an ongoing criminal prosecution was a sufficiently particularized explanation to justify denial of access, and “that an agency need not advance an explanation as to how the disclosure of each document . . . would interfere with that prosecution or investigation.” Lesher in his reply affidavit sworn to June 22, 2009 alleged that there was a difference between prosecution and extradition, and the “specific focus” of his FOIL request was “correspondence, memoranda or other documents relating to communications between the District Attorney and the federal government, regarding the extradition of Avrohom Mondrowitz.”

In a judgment entered November 23, 2009, Supreme Court granted the petition “to the extent only of directing [disclosure] of all correspondence, memoranda or other documents between the Office of the District Attorney and agencies or departments of the federal government” regarding Mondrowitz’s extradition. Relying on Pittari and Legal Aid Society, the judge reasoned that a claim that disclosure would interfere with a pending criminal prosecution was sufficiently particularized to justify denying a FOIL request under Public Officers Law § 87 (2) (e) (i), but that the “correspondence and communications between the District Attorney and federal agencies . . . being sought” were not likewise exempt because “[t]hose records allegedly pertain[ed] to Mondrowitz’s extradition.”

On December 21, 2009, the District Attorney moved to reargue. He informed Supreme Court that the records compiled in connection with Mondrowitz’s prosecution filled roughly four boxes, and that nearly half of the documents in those boxes comprised

“correspondence between the District Attorney’s Office and the United States Department of State in which the District Attorney’s Office provided detailed information about Mondrowitz’s crimes so that the State Department could prepare extradition requests. The correspondence consists of crime summaries, timelines of when and where each crime occurred, witness names and personal information, and witness statements.”

The District Attorney maintained that this correspondence was necessarily “related to the ongoing prosecution because [it] involve[d] the efforts made to return Mondrowitz to the jurisdiction so that the prosecution [might] proceed”; and that “disclosure of the documents surely would interfere with the prosecution . . . because they [were] replete with information about the crimes committed.” Supreme Court denied the motion to reargue on April 28, 2010, and the District Attorney took an appeal.

On January 11, 2011, the Appellate Division unanimously reversed and dismissed the petition (80 AD3d 611 [2d Dept 2011]). The court concluded that the District Attorney had established that the materials requested by Lesher were covered in their entirety by Public Officers Law § 87 (2) (e) (i). This was so because “[c]ontrary to [Lesher’s] contention,” the District Attorney was “not required to detail the manner in which each document sought would cause such interference. Rather, . . . the assertion that disclosure would interfere with an ongoing law enforcement investigation was a sufficiently particularized justification” under the circumstances {id. at 613). We subsequently granted Lesher permission to appeal (16 NY3d 710 [2011]), and now affirm.

Lesher emphasizes that Supreme Court only ordered the District Attorney to disclose correspondence and communications related to Mondrowitz’s extradition. In his view, such documents are not part of the criminal prosecution, “cannot possibly compromise a criminal prosecution” and so are not exempt from disclosure under Public Officers Law § 87 (2) (e) (i). In short, he argues that FOIL does not permit an agency to deny access to an “extradition-related” record compiled during the course of a criminal prosecution absent an explanation as to how the particular document’s release would undermine ongoing or future investigatory or judicial proceedings.

FOIL’S “legislative history . . . indicates that many of its provisions . . . were patterned after the Federal analogue. Accordingly, Federal case law and legislative history . . . are instructive” when interpreting such provisions (Matter of Fink v Lefkowitz, 47 NY2d 567, 572 n [1979] [citations omitted]). Notably, the law enforcement exemption is modeled on 5 USC § 552 (b) (7). As originally enacted by Congress, this provision of the Freedom of Information Act (FOIA) (5 USC § 552) exempted from disclosure “investigatory files compiled for law enforcement purposes except to the extent available by law to a private party.” Similarly, the law enforcement exemption, as originally enacted in FOIL in 1974, shielded “information that is . . . part of investigatory files compiled for law enforcement purposes” (Public Officers Law former § 88 [7] [d]).

Congress rewrote FOIA’s law enforcement exemption in 1974 to permit the nondisclosure of “investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would” create one of six specified dangers, the first of which was to “interfere with enforcement proceedings” (see 5 USC § 552 [b] [7] [A]) (Exemption 7A). When the Legislature amended FOIL in 1977, it followed suit by enacting Public Officers Law § 87 (2) (e) (i), which, as previously noted, denies access to records “compiled for law enforcement purposes and which, if disclosed, would . . . interfere with law enforcement investigations or judicial proceedings.”

As the Supreme Court explained in NLRB v Robbins Tire & Rubber Co. (437 US 214, 228-229 [1978]), Congress adopted Exemption 7A to register its disapproval of decisions handed down by the Circuit Court of Appeals for the District of Columbia in 1973 and 1974, which interpreted FOIA’s original law enforcement exemption too broadly for Congress’s taste. These decisions withheld material from disclosure so long as it was kept in an investigatory file compiled for law enforcement purposes, without regard to the nature of the documents or the status of the investigation. For example, in Aspin v Department of Defense (491 F2d 24, 30 [1973]), the D.C. Circuit held that the content of investigatory files remained exempt from disclosure even “after the termination of investigation and enforcement proceedings.” The court reasoned that legislative history did not “compel a contrary view”; “if investigatory files were made public subsequent to the termination of enforcement proceedings, the ability of any investigatory body to conduct future investigations would be seriously impaired”; “[f]ew persons would respond candidly to investigators if they feared that their remarks would become public record after the proceedings”; and “the investigative techniques of the investigating body would be disclosed to the general public” (id.). “Thus, the thrust of congressional concern” when it enacted Exemption 7A “was to make clear that [FOIA’s law enforcement exemption] did not endlessly protect material simply because it was in an investigatory file” (Robbins, 437 US at 230); and “that by extending blanket protection to anything labeled an investigatory file, the D.C. Circuit had ignored Congress’ original intent” (id. at 235; see also Title Guar. Co. v National Labor Relations Bd., 534 F2d 484, 492 [2d Cir 1976], cert denied 429 US 834 [1976] [“The cases that Exemption 7(A) was intended to overrule were for the most part closed investigative file cases”]).

In light of this legislative history, the Court in Robbins considered whether the National Labor Relations Board (NLRB or the Board) was required to produce copies of witness statements requested by an employer pursuant to FOIA. At argument in the District Court, the NLRB contended that the statements were exempt from disclosure because their production would interfere with a pending enforcement proceeding—in this case, a hearing on an unfair labor practice complaint lodged against the employer. The District Court held that Exemption 7A did not apply because “the Board did not claim that release of the documents at issue would pose any unique or unusual danger of interference with [the] particular enforcement proceeding” (id. at 217). On appeal, the United States Court of Appeals for the Fifth Circuit concluded generally “that Exemption 7(A) was to be available only where there was a specific evidentiary showing of the possibility of actual interference in an individual case,” which it accurately concluded the NLRB had not demonstrated (id. at 218).

The Supreme Court reversed. The Court ruled that Exemption 7A applied to the entire category of statements of witnesses whom the NLRB intended to call at the hearing, noting that Exemption 7A “[spoke] in the plural voice” about “enforcement proceedings” and therefore Congress “appear[ed] to contemplate that certain generic determinations might be made” (id. at 223-224). As the Court explained,

“While the Court of Appeals was correct that the amendment of [FOIA’s original law enforcement exemption] was designed to eliminate ‘blanket exemptions’ for Government records simply because they were found in investigatory files compiled for law enforcement purposes, we think it erred in concluding that no generic determinations of likely interference can ever be made. We conclude that Congress did not intend to prevent the federal courts from determining that, with respect to particular kinds of enforcement proceedings, disclosure of particular kinds of investigatory records while a case is pending would generally ‘interfere with enforcement proceedings’ ” (id. at 236).

The Court then determined that the Board had met its burden of demonstrating that disclosure of witness statements would interfere with enforcement proceedings. The NLRB accomplished this by pointing out that disclosure threatened to undermine its discovery procedures, delay adjudication of the unfair labor practice and heighten the danger of witness intimidation.

The Appellate Division in Pittari and Legal Aid Society adopted the Robbins analysis when interpreting Public Officers Law § 87 (2) (e) (i), as do we. A criminal prosecution is a “particular kind[ ] of enforcement proceedingt ]” where “disclosure of particular kinds of investigatory records while a case is pending would generally ‘interfere with enforcement proceedings’ ” (Robbins, 437 US at 236). We emphasize that this does not mean that every document in a law enforcement agency’s criminal case file is automatically exempt from disclosure simply because kept there. The agency must identify the generic kinds of documents for which the exemption is claimed, and the generic risks posed by disclosure of these categories of documents. Put slightly differently, the agency must still fulfill its burden under Public Officers Law § 89 (4) (b) to articulate a factual basis for the exemption.

Here, the District Attorney sustained this burden. First, he identified for Supreme Court the categories of records that he sought to withhold on the basis of the exemption—i.e., correspondence with the United States Department of State “consisting] of crime summaries, timelines of when and where each crime occurred, witness names and personal information, and witness statements.” Next, he identified the generic harm that disclosure would cause—i.e., disclosure would necessarily interfere with law enforcement proceedings because the correspondence was “replete with information about the crimes committed,” and so its release posed an obvious risk of prematurely tipping the District Attorney’s hand. Finally, there is no doubt that law enforcement proceedings were ongoing when Lesher commenced this CPLR article 78 proceeding. Indeed, at that time there was every reason to believe that Mondrowitz would soon be returned to Brooklyn for trial. Lesher himself declared in his petition that Mondrowitz was incarcerated in Israel, awaiting extradition.

Of course, Public Officers Law § 87 (2) (e) (i) ceases to apply after enforcement investigations and any ensuing judicial proceedings have run their course. Thus, the exemption does not bar disclosure of records compiled for law enforcement purposes in a criminal matter where the prosecution has been completed, absent some unusual circumstance such as the prospect that disclosure might compromise a related case. And criminal cases are typically wound up within a reasonable time after a crime is committed. At the other end of the spectrum, though, are “cold cases” where an investigation remains open, perhaps for a very long time, once probative leads have been exhausted. Similarly, where a suspect flees the jurisdiction the potential to prosecute remains, although an eventual trial might be uncertain of occurrence or timing. But this case of a fugitive from justice may now effectively be over.

Both parties have referred in their papers to a decision handed down by the Supreme Court of Israel in early 2010, after the record closed in Supreme Court. Lesher intimates that this decision brings to an end any realistic possibility that Mondrowitz will ever be extradited from Israel to stand trial for the crimes alleged in the indictment. Of course, Mondrowitz might always in theory return to Brooklyn voluntarily or relocate or travel to another nation from which extradition is possible, but such a happening is speculative and improbable.

Thus, Lesher is free to make another FOIL request for the correspondence and communications that he sought in this proceeding, based on the intervening Israeli judicial decision. If he is correct in his assessment of the decision’s effect—a matter for the FOIL records access officer to consider in the first instance—there is, practically speaking, no longer any pending or potential law enforcement investigation or judicial proceeding with which disclosure might interfere. Public Officers Law § 87 (2) (e) (i) would not preclude release of the records.

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

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

Order affirmed, with costs.

      . In his brief to the Appellate Division, the District Attorney stated that after Supreme Court’s decision, “an Israeli appeals court” overturned Mondrowitz’s extradition order, but that “the prosecution remainfed] viable” because the United States Departments of Justice and State were still considering whether to pursue further action with the Israeli government.

      . In 1986, Congress amended FOIA’s law enforcement exemption to substitute “could reasonably be expected” for “would” (see Department of Justice v Reporters Comm. for Freedom of Press, 489 US 749, 777-778 n 22 [1989]).

      . Justice Stevens in a concurring opinion observed that the majority’s “rationale applie[d] equally to any enforcement proceeding” (437 US at 243). Justice Powell, in partial dissent, endorsed the Court’s approach, agreeing that “the congressional requirement of a specific showing of harm does not prevent determinations of likely harm with respect to prehearing release of particular categories of documents” (id. at 249). He simply disagreed with the definition of the category, which he would have limited to statements of witnesses currently employed by the employer.


author: Smith, J.

text:
    [967 NE2d 1195, 944 NYS2d 750]
    The People of the State of New York, Appellant, v James Perry, Respondent.
    Argued February 9, 2012;
    decided April 3, 2012

      POINTS OF COUNSEL

      Charles J. Hynes, District Attorney, Brooklyn (Thomas M. Ross and Leonard Joblove of counsel), for appellant.
    The court was not required to submit simple possession of a weapon as a lesser included offense of possession of a weapon with intent to use it unlawfully against another, because, even if defendant’s statements were credited, there was no reasonable view of the evidence that defendant possessed the gun without intending to use it unlawfully against another. (People v Van Norstrand, 85 NY2d 131; People v Scarborough, 49 NY2d 364; People v Discala, 45 NY2d 38; People v Negron, 91 NY2d 788; People v Pons, 68 NY2d 264; People v Almodovar, 62 NY2d 126; People v Romero, 71 AD3d 795; People v Durand, 188 AD2d 747; People v Frazier, 141 AD2d 561; People v Rivera, 15 NY3d 844.)

      Chadbourne & Parke LLP, New York City (Thomas E. Butler and Keith Levenberg of counsel), and Appellate Advocates (Lynn W.L. Fahey of counsel) for respondent.
    The Appellate Division correctly held that the trial court’s failure to charge the lesser-included offense mandated the vacatur of James Perry’s conviction for criminal possession of a weapon in the second degree. (People v Van Norstrand, 85 NY2d 131; People v Chatman, 122 AD2d 148; People v Padgett, 60 NY2d 142; People v Scarborough, 49 NY2d 364; People v Rivera, 15 NY3d 844; People v Pons, 68 NY2d 264; People v Pulley, 302 AD2d 899; People v Johnson, 74 AD3d 1912; People v Pearce, 283 AD2d 1007; People v Ellis, 233 AD2d 692.)
   OPINION OF THE COURT

Smith, J.

Defendant was convicted of possessing a weapon with the intent to use it unlawfully against another, after he admitted that he displayed a gun to a man in order to frighten him. We hold that there is no reasonable view of the evidence on which defendant possessed the weapon without any intention to use it unlawfully.

The case arises out of an encounter between defendant and Anthony Baker, at the end of which Baker was killed by a gunshot. There were no witnesses to the shooting, and defendant did not testify at trial. He did make several oral and written statements before trial, which were admitted into evidence. In those statements, he said that, on the morning of the day in question, he was told by a third person that Baker wanted defendant dead and that Baker was going to shoot defendant, defendant’s mother, his sister and his child’s mother. Defendant then sought out Baker and had a conversation in which Baker in substance admitted making the threats, but refused to. repeat them. During the conversation, Baker “came close” to defendant and defendant “kept pushin him away.” Defendant “grabbed him” and they started “to tustle.” Defendant then “grabbed the gun and pulled it out to scare him so he would back up off me.” In defendant’s account, Baker “kept swinging” at defendant, and the gun went off by accident. There was no evidence that Baker had a weapon at the time of the encounter.

The jury apparently accepted defendant’s version of events, acquitting him of murder and manslaughter charges, but convicting him of criminally negligent homicide and criminal possession of a weapon in the second degree. Only the weapons possession charge is at issue here. At the relevant time, the statute under which defendant was convicted required proof of the possession of a loaded firearm “with intent to use the same unlawfully against another” (former Penal Law § 265.03). Defendant unsuccessfully asked the trial court to submit, as a lesser included offense, criminal possession of a weapon in the fourth degree, which is committed by possession of any firearm (Penal Law § 265.01 [1]). Defendant was entitled to have the lesser count submitted if there was “a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater” (CPL 300.50 [1], [2]).

The Appellate Division vacated defendant’s conviction of second-degree weapon possession and ordered a new trial on that count (81 AD3d 665 [2011]). A Judge of this Court granted the People leave to appeal, and we now reverse. We see no reasonable view of the evidence on which defendant did not, while possessing a firearm, at least intend to commit the crime of menacing. His statements amount to a confession that he intentionally committed that crime.

Menacing in the second degree is committed by one who “intentionally places or attempts to place another person in reasonable fear of physical injury, serious physical injury or death by displaying a deadly weapon” (Penal Law § 120.14 [1]). That is exactly what defendant did when, by his own account, he showed Baker a gun “to scare him.” Defendant argues that he could have asserted a justification defense to a menacing charge, but no reasonable view of the evidence supports that conclusion.

Otherwise criminal conduct is justifiable when it

“is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur . . . which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue” (Penal Law § 35.05 [2]).

Defendant claimed that he tried to “scare” Baker because the men had started to tussle and defendant wanted “to back him off me.” Frightening a man with a gun is not a justified “emergency measure” for ending a tussle, or a fistfight. It would be justified in defense of one’s own life, but defendant never said that he was afraid, during their encounter, that Baker would kill him, or even that he believed that Baker had a weapon. It was defendant himself who sought out the confrontation, who pressed Baker to admit to making threats against him, and who “grabbed him” when Baker, while crowding defendant physically, refused to repeat his threats. Nothing in the record supports a reasoned conclusion that defendant was so frightened by the threats he had heard earlier in the day that he thought he would be killed or gravely harmed if he did not scare Baker off.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, defendant’s conviction of criminal possession of a weapon in the second degree reinstated and the case remitted to the Appellate Division for consideration of the facts (see CPL 470.25 [2] [d]; 470.40 [2] [b]).

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

Order, insofar as appealed from, reversed, etc.


author: Jones, J.

text:
    [968 NE2d 433, 945 NYS2d 196]
    Estate of Robert E. Becker, Deceased, Appellant, et al., Plaintiffs, v Owen J. Murtagh et al., Respondents.
    Argued February 16, 2012;
    decided April 3, 2012

      POINTS OF COUNSEL

      Margolin & Pierce, LLP, New York City (Philip Pierce and Errol F. Margolin of counsel), for appellant.
    I. The Second Department misapplied the law in such a way as to make it impossible for the standard for adverse possession to be met and in a way that conflicts with Court of Appeals’ precedent and rulings in this and other departments. (Gerlach v Russo Realty Corp., 264 AD2d 756; H.S. Farrell, Inc. v Formica Constr. Co., Inc., 41 AD3d 652; Hancock v Estate of Hancock, 15 AD3d 620; Monnot v Murphy, 207 NY 240; Myers v Bartholomew, 91 NY2d 630; Hassinger v Kline, 91 AD2d 988; Carman v Hewitt, 280 App Div 866, 305 NY 718; Robarge v Willett, 224 AD2d 746; Sinicropi v Town of Indian Lake, 148 AD2d 799; Brand v Prince, 35 NY2d 634.) II. The Second Department decision disposes of the claim that Robert Becker had acquired the Jetty Parcel pursuant to the doctrine of practical location based on case law which in no way supports that result and is in conflict with decisions of this Court and those of the Third Department. (Wentworth v Braun, 78 App Div 634, 175 NY 515; Markowski v Ferrari, 174 AD2d 793; Katz v Kaiser, 154 NY 294; Baldwin v Brown, 16 NY 359; Hazen v Hazen, 26 AD3d 696; Riggs v Benning, 290 AD2d 716; Ronchar v Leichtman, 35 AD2d 890; Fisher v MacVean, 25 AD2d 575; Bell v Hayes, 60 App Div 382; Corning v Troy Iron & Nail Factory, 44 NY 577.)

      Cahn & Cahn, LLP, Huntington (Daniel K. Cahn of counsel), for respondents.
    I. The Appellate Division properly found that the Estate of Robert E. Becker failed to prove its claim of adverse possession to the disputed “jetty parcel” by clear and convincing evidence. (Brand v Prince, 35 NY2d 634; DuMaurier v Lindsay-Bushwick Assoc., L.P., 39 AD3d 460; Fitzgerald v Conroy, 15 AD3d 534; MAG Assoc. v SDR Realty, 247 AD2d 516; Guariglia v Blima Homes, 89 NY2d 851; Van Gorder v Masterplanned, Inc., 78 NY2d 1106; Orsetti v Orsetti, 6 AD3d 683; Hassinger v Kline, 91 AD2d 988; Walling v Przybylo, 7 NY3d 228; Friedman v Sills, 112 AD2d 343.) II. The boundary line between lots 29 and 30 was not established by the doctrine of practical location. (Riggs v Benning, 290 AD2d 716; McMahon v Thornton, 69 AD3d 1157; Hazen v Hazen, 26 AD3d 696; Markowski v Ferrari, 174 AD2d 793.)
   OPINION OF THE COURT

Jones, J.

The primary question before the Court is whether plaintiff Estate of Robert E. Becker (plaintiff estate) established that its decedent acquired title to a certain parcel of land by adverse possession. We hold that it has.

L

This appeal stems from a dispute over the ownership of the land upon which a boardwalk and dock—constructed by Robert E. Becker (now deceased) on Oak Beach in the Town of Babylon (the Town), Suffolk County—sit. Plaintiff estate is the lessee of a beachfront lot (lot 29) on Oak Beach. Defendants are the lessees of lot 30, an adjacent beachfront lot. Plaintiffs Christopher K. O’Hara, Edward J. O’Hara and Douglas C. Koelsch lease neighboring lots (lots 14 and 15) which are situated north of (behind) lots 29 and 30, not on the beachfront. Messrs. O’Hara are lessees of lot 14, and Mr. Koelsch is the lessee of lot 15. Lots 14 and 15 are separated from the beach by the homes of plaintiff estate and defendants. The homes on all of the lots involved are privately owned, but the lots are owned by the Town, which leases the real property to the occupants pursuant to long-term leases set to expire in 2050.

In the early 1960s (around 1963), the homeowners on the beachfront lots, at the Town’s behest and at their own cost and expense, had wooden jetties constructed on said lots to inhibit beach erosion. The jetties appeared to be built on the lot boundary lines. Shortly after the construction of the jetty that purportedly marked the boundary line between lots 29 and 30 (within the next two years), Robert E. Becker erected a four-foot dock using the jetty for support. He later added an extension to an existing boardwalk to reach the dock.

The evidence establishes that from around 1963 until 1984, Mr. Becker exercised exclusive dominion and control over the land upon which the dock and boardwalk extension are located. In addition, during that period, Mr. Becker and defendants’ predecessor Nancie Gordon, as well as other neighbors, believed those structures were located on lot 29. Throughout this period, Mr. Becker alone maintained (e.g., repaired and painted) the dock and boardwalk. Further, starting in the early to mid 1960s, Mr. Becker impliedly permitted several neighbors, including the Gordons, the O’Haras and Mr. Koelsch, and their families and friends, to freely use the dock and boardwalk. However, Mr. Becker did not allow strangers access to or use of these structures. The record also shows that since the early 1960s, Nancie Gordon permitted several neighbors, including the plaintiffs’ predecessors, to use her family’s beach on lot 30. Mr. Becker’s boardwalk was used to access the Gordon beach on lot 30.

In 1984, Nancie Gordon had her property surveyed. The survey indicated that the jetties were misaligned by approximately five feet. She averred in an affidavit that

“[a]s a result of that survey, I learned, among other things, that a portion of the boardwalk and the entire dock that Mr. Becker had constructed some years earlier, were actually located on my property ... I showed the survey to Mr. Becker, and he and I had a good laugh about it.”

Nancie Gordon further stated that “[a]s a neighborly accommodation and because I was friendly with the Beckers, I allowed them to continue to use the boardwalk and dock as they always had, even though everybody knew that those structures were located on my property.”

In 2004, Nancie Gordon sold her house on lot 30 to defendants and assigned her leasehold interest in that property to them. Defendants subsequently advised plaintiffs (Mr. Becker, Messrs. O’Hara and Mr. Koelsch) they were no longer allowed to use the boardwalk, dock or beach (on lot 30).

In March 2005, plaintiffs commenced this declaratory judgment action. Mr. Becker sought, inter alia, a judgment declaring that he established title by adverse possession to the property on which the boardwalk and dock are located. Mr. Koelsch and Messrs. O’Hara sought, inter alia, a judgment declaring that they acquired an easement by prescription for use of the boardwalk, dock and beach.

In April 2006, Supreme Court issued a preliminary injunction enjoining defendants from interfering with plaintiffs’ use of the subject boardwalk, dock and beach. Subsequently, in May 2006, Mr. Becker recorded two easements with the Suffolk County Clerk by which he purported to grant to the other plaintiffs the right to use the boardwalk and dock in order to access the beach on lot 30. In or around August 2006, defendants answered plaintiffs’ complaint and interposed counterclaims seeking a judgment declaring that plaintiffs have no interest in the disputed property, a judgment voiding the easements, and damages.

In March 2009, defendants moved for, among other things, summary judgment on their counterclaims. Defendants relied in part on Nancie Gordon’s affidavit in which she states that before the 1984 survey, “Becker’s use of the dock and boardwalk could not have been hostile to [her] interests because [she] did not even know that those structures were located on [her] property.” Plaintiffs cross-moved for summary judgment on their respective adverse possession and prescriptive easement claims.

Supreme Court granted plaintiffs summary judgment. The Appellate Division, Second Department reversed, granted summary judgment to the defendants and declared that the plaintiffs had no rights in the disputed property (75 AD3d 575 [2d Dept 2010]). With respect to plaintiff estate’s claims, the court held that Mr. Becker’s possession was neither hostile nor exclusive because defendants’ predecessors freely used the boardwalk and dock during the period of time plaintiff estate asserts its adverse possession claim ripened into title. The court, stating that there was no proof of a clear demarcation of a boundary line, also rejected plaintiff estate’s claim that the doctrine of practical location of a boundary line was applicable. This Court granted plaintiff estate leave to appeal (16 NY3d 707 [2011]), and we now reverse the Appellate Division order insofar as appealed from.

IL

“Where there has been an actual continued occupation of premises under a claim of title, exclusive of any other right, but not founded upon a written instrument or a judgment or decree, the premises so actually occupied, and no others, are deemed to have been held adversely” (RPAPL former 521). To establish a claim of adverse possession, the occupation of the property must be (1) hostile and under a claim of right (i.e., a reasonable basis for the belief that the subject property belongs to a particular party), (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the statutory period (at least 10 years) (see Walling v Przybylo, 7 NY3d 228, 232 [2006]; Ray v Beacon Hudson Mtn. Corp., 88 NY2d 154, 159 [1996]; see also Belotti v Bickhardt, 228 NY 296, 302 [1920]). The character of the possession must be such “that [it] would give the owner a cause of action in ejectment against the occupier” (Brand v Prince, 35 NY2d 634, 636 [1974]). In addition, where, as here, the claim of right is not founded upon a written instrument, the party asserting title by adverse possession must establish that the land was “usually cultivated or improved” or “protected by a substantial inclosure” (RPAPL former 522). Because the acquisition of title by adverse possession is not favored under the law, these elements must be proven by clear and convincing evidence (see Ray, 88 NY2d at 159; Van Valkenburgh v Lutz, 304 NY 95, 98 [1952]). The only elements substantially in dispute here are the “hostility” and “exclusivity” elements.

A party claiming title by adverse possession “is not required to show enmity or specific acts of hostility in order to establish the element of hostility” (Greenberg v Sutter, 257 AD2d 646, 646 [2d Dept 1999]). This element is satisfied where an individual asserts a right to the property that is “adverse to the title owner and also in opposition to the rights of the true owner” (Walling, 7 NY3d at 232-233; see Monnot v Murphy, 207 NY 240, 245 [1913] [“The ultimate element in the rise of a title through adverse possession is the acquiescence of the real owner in the exercise of an obvious adverse or hostile ownership through the statutory period”]).

A rebuttable presumption of hostility arises from possession accompanied by the usual acts of ownership, and this presumption continues until the possession is shown to be subservient to the title of another (Monnot, 207 NY at 244; Levy v Kurpil, 168 AD2d 881, 883 [3d Dept 1990] [“Where all the elements of adverse possession are established a presumption of hostility arises and the burden shifts to the record owner to produce evidence rebutting the presumption”]). However, hostility is negated by “[sleeking permission for use from the record owner” (City of Tonawanda v Ellicott Cr. Homeowners Assn., 86 AD2d 118, 124 [4th Dept 1982], appeal dismissed 58 NY2d 824 [1983]). Further, where there is a close and cooperative relationship between the record owner and the person claiming title through adverse possession, the presumption of hostility may not apply (see Hassinger v Kline, 91 AD2d 988, 989 [2d Dept 1983] [“the neighborly relationship between plaintiffs, their predecessors in title and defendants’ predecessors in title, created an implication that the use of the disputed roadway was permissive”]). Thus, in order to establish the hostility element, the party asserting the adverse possession claim must “come forward with affirmative facts to establish that the use [of the property] was under a claim of right and adverse to the interests of [the true owners]” (Albright v Beesimer, 288 AD2d 577, 578 [3d Dept 2001] [internal quotation marks omitted]).

Indeed, the Beckers and Gordons were friendly neighbors for many years, and this fact may render the presumption of hostility inapplicable here; however, the evidence submitted by the parties in support of their respective summary judgment motions firmly establishes that Mr. Becker’s possession and use of the disputed property was under a claim of right and adverse to Nancie Gordon’s interests. It is undisputed that Mr. Becker constructed and maintained, during the applicable statutory period, the boardwalk and dock. He also restricted access to the boardwalk and dock when the general public attempted to use it. There was never any indication that Mr. Becker’s possession was with defendants’ predecessors’ consent or permission. Nor did anyone ever question or object to Mr. Becker’s possession and improvement of the property. Mr. Koelsch’s deposition testimony implied that he believed that Becker owned the dock. Further, and most significantly, Nancie Gordon averred that (1) she believed that the dock and boardwalk were on Mr. Becker’s lot, and (2) she did not know until the 1984 survey that the entire dock and part of the boardwalk were actually on lot 30. Finally, Mr. Becker’s and Nancie Gordon’s mutual mistake does not negate the hostility element (see Belotti, 228 NY at 302). Accordingly, plaintiff estate established, by clear and convincing evidence, that Mr. Becker’s claim was “hostile” to the rights of defendants’ predecessors.

To establish the “exclusivity” element, the adverse possessor must alone care for or improve the disputed property as if it were his/her own (see Beddoe v Avery, 145 AD2d 818, 819 [3d Dept 1988]). The focus is on whether the party claiming title by adverse possession exercised exclusive possession and control of the property. Thus, allowing others to use the property does not necessarily negate “exclusivity.” When the party claiming adverse possession permits others to use the property, exclusivity exists where the claimant’s use of the property is “separate and exclusive from the general use” (Pirman v Confer, 273 NY 357, 363 [1937]; see Pro-Fac Coop. v Baltimore & Ohio R. R. Co., 36 AD2d 441, 444 [4th Dept 1971]; see also Levy, 168 AD2d at 883 [claimant’s use is exclusive to the extent that although others use disputed property, claimant’s use is not dependent on the right of others to do so]). But note, “exclusivity” is not established “where [a claimant’s] use is in connection with the use of the owner and the general public” (Pirman, 273 NY at 363).

Here, plaintiff estate established by clear and convincing evidence that Mr. Becker’s possession and use of the property was exclusive because although Mr. Becker permitted certain friends and neighbors access to the dock and boardwalk, he did not grant such access to the general public; and the use of the dock and boardwalk by Mr. Becker’s friends and neighbors—in the form of a right-of-way—was different in scope than his construction, maintenance and control of the boardwalk and dock. The fact that Mr. Becker’s friends and neighbors, including defendants’ predecessors, freely used the dock and boardwalk without seeking explicit permission does not negate Mr. Becker’s exclusive possession and control of the property. Further, although there is evidence that Nancie Gordon—since the early 1960s—allowed several neighbors, including the plaintiffs’ predecessors, to use the beach on lot 30, she, from around 1963 through 1984, was under the impression that the dock and boardwalk, and the land upon which those structures sit, were entirely on Mr. Becker’s lot (lot 29); thus, she could not affect Mr. Becker’s exclusive possession of the disputed property.

In conclusion, the evidence that Mr. Becker possessed, used and controlled the disputed land—for the 21 years prior to and including 1984—is sufficient to establish title by adverse possession and grant summary judgment in plaintiff estate’s favor.

III.

Because we hold that plaintiff estate established its adverse possession claim, we need not determine whether it acquired title to the disputed property pursuant to the doctrine of practical location.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and the judgment of Supreme Court reinstated to the extent it grants relief to appellant Estate of Robert E. Becker.

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

Order, insofar as appealed from, reversed, etc.

      . The Town’s ultimate ownership interest in the lots at issue is not addressed by the parties. In any event, our resolution of plaintiff estate’s adverse possession claim has no bearing on the Town’s interest (cf RPAPL former 531; Spiegel v Ferraro, 73 NY2d 622 [1989] [use of easement by lessee of servient estate was not an assertion of an interest hostile to lessor; such use would be presumed to inure to lessor’s benefit upon expiration of lessee’s tenancy]).

      . Over the next few years, the parties engaged in a prolonged discovery dispute and extensive motion practice. In addition, Mr. Becker passed away on August 28, 2007, and the action was temporarily stayed. By stipulation, so ordered on February 1, 2008, Mr. Becker’s estate was substituted as plaintiff.

      . The other plaintiffs’ prescriptive easement claims are not before us; they did not pursue a timely appeal from the Appellate Division order.

      . In 2008, the adverse possession statute (RPAPL art 5) was amended in its entirety (L 2008, ch 269) to, among other things, discourage people from claiming adverse possession over real property they know belongs to another with superior ownership rights. Among the changes, the Legislature defined the terms “adverse possessor,” “acquisition of title,” and “claim of right” (RPAPL 501), and altered the requirements that must be made out where the adverse possession claim is not based on a written instrument (RPAPL 522). The 2008 amendments are not applicable to the instant appeal because Mr. Becker’s title vested (by adverse possession), and this action was instituted, before the effective date of the amendments.

      . Defendants contend there is no admissible evidence in this regard because Robert E. Becker’s affidavit is inadmissible—he died before he was deposed (and meaningfully cross-examined). However, evidence in support of this fact also exists in Nancie Gordon’s affidavit and deposition testimony, and in the deposition testimony of Mr. Becker’s daughter, Lee Ellen Becker.


author: Pigott, J.

text:
    [968 NE2d 956, 945 NYS2d 602]
    The People of the State of New York, Respondent-Appellant, v Christopher Perino, Appellant-Respondent.
    Argued February 9, 2012;
    decided March 29, 2012

      POINTS OF COUNSEL

      Hogan Lovells US LLP, New York City (Ira M. Feinberg, Robert B. Buehler and Andrew J. Sein of counsel), for appellant-respondent.
    I. Christopher Ferino’s false testimony was not material as a matter of law, and thus cannot support his conviction of perjury in the first degree. (People v Davis, 53 NY2d 164; People v Samuels, 284 NY 410; Wood v People, 59 NY 117; People v Stanard, 42 NY2d 74; People v Monaco, 32 AD3d 241; People v Tyler, 62 AD2d 136; People v Clemente, 285 App Div 258, 309 NY 890; People v Ortiz, 40 AD3d 374; United States v Parr-Pla, 549 F2d 660; People v Rao, 73 AD2d 88.) II. The evidence was insufficient to establish Christopher Ferino’s intent to testify falsely. (People v Hattemer, 4 AD2d 775, 4 NY2d 835; People v Tyler, 46 NY2d 251; People ex rel. Hegeman v Corrigan, 195 NY 1; People v Lombardozzi, 35 AD2d 528, 30 NY2d 677; People v Monaco, 32 AD3d 241; People v Dwyer, 234 AD2d 942; People v Loughlin, 66 NY2d 633; People v Pena, 50 NY2d 400; Chavez v Martinez, 538 US 760; People v Samuels, 284 NY 410.)

      Robert T. Johnson, District Attorney, Bronx (Christopher J. Blira-Koessler and Joseph N. Ferdenzi of counsel), for respondent-appellant.
    I. The Appellate Division erroneously reduced defendant’s convictions for perjury in the first degree to perjury in the third degree. (People v Ianniello, 36 NY2d 137; People v Stanard, 42 NY2d 74; People v Samuels, 284 NY 410; People v Courtney, 94 NY 490; People v Davis, 53 NY2d 164; People v Cabey, 85 NY2d 417; People v Bleakley, 69 NY2d 490; People v Cefaro, 23 NY2d 283.) II. Defendant’s guilt of perjury in the first degree was proven by overwhelming evidence. (Bronston v United States, 409 US 352; People v Neumann, 51 NY2d 658; People v Davis, 53 NY2d 164; People v Tyler, 46 NY2d 251; People v Pomerantz, 46 NY2d 240; People v Schenkman, 46 NY2d 232; Missouri v Seibert, 542 US 600; People v Dwyer, 234 AD2d 942; People v Goldman, 21 NY2d 152; Rhode Island v Innis, 446 US 291.)
   OPINION OF THE COURT

Pigott, J.

Defendant, a former member of the New York City Police Department, was charged with 12 counts of perjury in the first degree (Penal Law § 210.15). The charges arose after defendant falsely answered questions posed to him on cross-examination during the criminal trial of Erik Crespo. Defendant was the lead investigator in the case against Crespo, who was suspected of shooting and severely injuring another man in the Bronx. Defendant questioned Crespo inside a precinct interrogation room regarding the shooting. Among other questions, defendant asked Crespo where he procured the gun used in the shooting and what he did with it. During this interrogation, which lasted approximately 80 minutes, defendant never read Crespo his Miranda warnings. Crespo answered defendant’s questions and confessed to the shooting. Unbeknownst to defendant, Crespo had recorded the entire interrogation on his MP3 player.

After the interrogation, defendant allowed Crespo’s mother and aunt into the interrogation room. Crespo then told his mother, “He wants to know why I shot him.” The admissibility of this statement was at issue at a pretrial hearing in the Crespo case; the court ruled that it was admissible as a spontaneous declaration.

At Crespo’s trial, defense counsel, who had, by then transcribed the recorded interrogation, asked defendant numerous questions regarding the interrogation. As relevant to this appeal, defendant testified as follows:

“[question:] Now, you also said on direct examination that you never asked [Crespo] any questions when you were alone with him in the room on December 31, 2005; isn’t it true?
“[answer:] That’s correct. He wasn’t questioned ....
“[question:] Did you ever ask him, ‘where did you get the gun?’
“[answer:] No, Sir.
“[question:] Did you ever ask him, ‘what did you do with the gun?’
“[answer:] No, Sir.”

Throughout the Crespo trial, defendant denied ever interrogating Crespo about the shooting. He testified that the only statement made by Crespo was his spontaneous statement to his mother. When confronted with a transcript of the entire interrogation, defendant denounced the transcript as a fabrication. Because of defendant’s false testimony at Crespo’s trial, the People agreed to a reduced plea offer for Crespo.

A bench trial was held on the perjury charges against defendant. He was found guilty of three counts of perjury in the first degree and of one count of perjury in the third degree.

As relevant to this appeal, the Appellate Division modified (76 AD3d 456 [1st Dept 2010]), by finding that although the evidence was legally sufficient to establish defendant’s intent to commit perjury, the two answers pertaining to the gun were not material to the Crespo prosecution (id. at 460). Thus, it reduced the convictions on those two counts of perjury in the first degree to perjury in the third degree, and affirmed as to the other counts on which defendant was convicted (id.).

A Judge of this Court granted the People and defendant leave to appeal (16 NY3d 834 [2011]). Their primary contentions concern whether defendant’s statements were material to the Crespo action.

A necessary element of peijury in the first degree is that the false sworn statement be material to the proceeding in which it is given (Penal Law § 210.15 [b]). Materiality is typically a question of fact for the jury (see People v Davis, 53 NY2d 164 [1981]; see also People v Ianniello, 36 NY2d 137 [1975]).

“To be material, the statement need not prove directly the fact in issue; it is sufficient if it is ‘circumstantially material or tends to support and give credit to the witness in respect to the main fact’ . . . Thus a statement that ‘reflect[s] on the matter under consideration’. . . even if only as to the witness’ credibility ... is material for purposes of supporting a perjury charge” (Davis, 53 NY2d at 170-171).

At defendant’s trial, the People argued that all of defendant’s false testimony was material for two reasons; it went to the spontaneity and voluntariness of Crespo’s statement to his mother and it went to the defendant police detective’s credibility. The People called one of the prosecutors at the Crespo trial to testify as to its materiality in the Crespo case.

On their appeal, the People contend that the Appellate Division erred when it found the two questions concerning the gun “too narrow in scope and unrelated to the question of whether Crespo made a voluntary statement to his mother” and reduced the convictions related to those counts to perjury in the third degree (Perino, 76 AD3d at 460). That determination rested on a review of the facts. Therefore, it cannot be said that the modification was “on the law alone or upon the law and such facts which, but for the determination of law, would have led to . . . modification” (CPL 450.90 [2] [a]). Consequently, the People’s appeal from that portion of the Appellate Division order must be dismissed.

On defendant’s appeal, we address the part of the Appellate Division order that affirmed as to the other counts on which defendant was convicted, including the count of perjury in the first degree based upon defendant’s statement that he did not question Crespo when they were alone. Defendant argues that the admissibility of Crespo’s spontaneous statement was not at issue in the Crespo trial; rather, according to defendant, it was an issue at the suppression hearing and defense counsel did not introduce the transcript then. Thus, defendant argues that none of his testimony could have been material to the issues actually being litigated. Defendant’s argument overlooks the fact that the statement’s admissibility at the trial does not preclude defense counsel from inquiring into the circumstances surrounding it. Nothing “precludes a defendant from attempting to establish at a trial that evidence introduced by the [P]eople of a pre-trial statement made by him should be disregarded by the jury or other trier of the facts on the ground that such statement was involuntarily made” (CPL 710.70).

Therefore, we agree with the Appellate Division that the evidence was sufficient to support the finding that the statement made by defendant that he never questioned Crespo was material to the Crespo trial. More specifically, it was relevant to the jury’s determination on whether Crespo’s statement to his mother was truly spontaneous and voluntary or whether it was triggered by police conduct that could reasonably have been anticipated to evoke such a statement (see People v Lynes, 49 NY2d 286, 295 [1980]).

Defendant’s contention that the evidence was insufficient to prove intent is not preserved for our review. His further assertion that the statements were a result of a perjury trap is without merit.

On defendant’s appeal, the order of the Appellate Division, insofar as appealed from, should be affirmed. The People’s appeal should be dismissed upon the ground that the Appellate Division modification was not “on the law alone or upon the law and such facts which, but for the determination of law, would not have led to . . . modification” (CPL 450.90 [2] [a]).

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

On defendant’s appeal, order, insofar as appealed from, affirmed. People’s appeal dismissed, etc.


text:
    [968 NE2d 960, 945 NYS2d 606]
    The People of the State of New York, Respondent, v Debra Pagan, Appellant.
    Argued February 16, 2012;
    decided April 3, 2012

      POINTS OF COUNSEL

      Legal Aid Society, New York City (Svetlana M. Kornfeind and Steven Banks of counsel), for appellant.
    I. The evidence of attempted robbery is legally insufficient where the complainant’s testimony established appellant’s good faith but mistaken belief of fact that she was the “owner” of the $16 held by the complainant, thereby negating the essential element of larcenous intent. (In re Winship, 397 US 358; Jackson v Virginia, 443 US 307; Sullivan v Louisiana, 508 US 275; People v Contes, 60 NY2d 620; People v Green, 5 NY3d 538; People v Olivo, 52 NY2d 309; People v Zinke, 76 NY2d 8; People v Acevedo, 40 NY2d 701; People v Rypinski, 157 AD2d 260; People v Gudz, 18 AD3d 11.) II. Appellant was denied her due process right to a fair trial, where (a) the court, over objection, improperly instructed the jury, in its main and supplemental charges, that the law did not permit appellant to use force to take money from another person, even if she honestly believed she was entitled to take money, thereby directing a verdict on the attempted robbery count and nullifying appellant’s mistake-of-fact defense, and (b) the court erroneously refused the defense request for a mistake-of-fact charge. (People v Flynn, 79 NY2d 879; People v Lewis, 64 NY2d 1031; United States v Gaudin, 515 US 506; People v Knowles, 42 AD3d 662; In re Winship, 397 US 358; People v Williams, 5 NY3d 732; Sullivan v Louisiana, 508 US 275; People v Rodriguez, 52 AD3d 399; People v Simmons, 15 NY3d 728; People v Smith, 79 NY2d 309.)

      Cyrus R. Vance, Jr., District Attorney, New York City (Sara M. Zausmer and Gina Mignola of counsel), for respondent.
    I. The court’s charge to the jurors correctly stated the relevant legal principles regarding the element of larcenous intent for attempted second-degree robbery. (People v Green, 5 NY3d 538; People v Reid, 69 NY2d 469; People v Watts, 57 NY2d 299; People v Gaines, 83 NY2d 925; People v Sirico, 17 NY3d 744; People v Perry, 61 NY2d 849; People v Zona, 14 NY3d 488; People v Chesler, 50 NY2d 203; People v Fichtner, 281 App Div 159, 305 NY 864; United States v Zappola, 677 F2d 264.) II. The People proved defendant’s guilt of attempted second-degree robbery, including the element of larcenous intent, beyond a reasonable doubt. (People v Danielson, 9 NY3d 342; People v Cabey, 85 NY2d 417; People v Acosta, 80 NY2d 665; People v Contes, 60 NY2d 620; People v Castillo, 47 NY2d 270; People v Dordal, 55 NY2d 954; People v Hines, 97 NY2d 56; People v Malizia, 62 NY2d 755; People v Montanez, 41 NY2d 53; People v Green, 5 NY3d 538.)
   OPINION OF THE COURT

Pigott, J.

In this appeal, we address the relation between a claim of right defense and a mistake of fact defense in the second-degree robbery context. We conclude that, in the circumstances of this case, the two defenses are equivalent.

L

The incident underlying this appeal occurred after defendant Debra Pagan hailed a livery cab from a bus stop at 116th Street and Madison Avenue, in Manhattan. Defendant asked the cabdriver to take her to 109th Street and Lexington Avenue, and she told him that she had only four dollars on her. Although a minimum fare of six dollars applied in the area, the cabdriver agreed to the lower amount, because defendant appeared ill.

There then ensued a rather bizarre series of cash transactions. When they arrived at the requested destination, defendant gave the cabdriver a dollar bill and a $20 bill (this from the person who had said she had only four dollars for the trip). The cabdriver returned the dollar to defendant, telling her that he did not need it to make change. He then gave her $16 in change. Defendant insisted that she was entitled to $17 in change. The cabdriver pointed out to defendant that he had returned the dollar she had given him, before giving her the correct change from $20.

Defendant demanded that the cabdriver return the $20 bill, which he did. Then, instead of returning the $16 change and restarting the transaction, defendant offered the cabdriver $4 from the $16 he had given her as change. The cabdriver refused to take the money, telling defendant that she was paying him from his own money. Defendant replied that the cabdriver was confusing her, and took the $4 back. She now had her money and the cabdriver’s money.

At this time, the security locks on the livery cab were active, preventing defendant from leaving the car. The cabdriver asked defendant to return the $16 he had given her, offering to forgive the $4 she owed him. Defendant refused; but, when the cabdriver told defendant that he would take her to the police precinct, she placed the $16 on the console between the front seats, and the cabdriver then unlocked the doors. However, defendant refused to leave the cab, accusing the cabdriver of stealing from her.

The cabdriver began to drive to the nearest police precinct. He had the $16 in his right hand. There was no partition between the front and rear seats of the livery cab. Defendant leaned forward and tried to grab the $16, scratching and biting the cabdriver’s hand in the process. The cabdriver held on to the money.

At the corner of 107th Street and Lexington Avenue, the cabdriver stopped the car. Defendant said to the cabdriver, “Now you’re going to see.” She pulled out a knife, and demanded the money back. Seeing two police officers, the cabdriver attracted their attention, telling them that his passenger had a knife. When the officers approached the cab, defendant was in the back seat, clutching a knife.

Defendant was arrested and subsequently indicted on charges of attempted robbery in the first degree, attempted robbery in the second degree, criminal possession of a weapon in the third degree, assault in the third degree, and menacing in the second degree. She proceeded to a jury trial in Supreme Court.

IL

Defendant did not testify or call any witnesses. At the close of evidence, defendant moved for dismissal of the attempted robbery counts under CPL 290.10, arguing that the People had failed to prove intent to take another’s property. Supreme Court reserved decision on defendant’s motion.

During the charge conference, the prosecutor asked Supreme Court to instruct the jury that claim of right is not a defense to robbery. Defense counsel objected to such a negative claim of right instruction, insisting that the defense would not be asking for a claim of right instruction in the first place. Instead, defense counsel requested what she called a mistake of fact instruction, namely that the jury must find defendant not guilty of attempted robbery if it concluded that she had been acting under a mistaken belief that the $16 in change in fact belonged to her, such that she could not have formed the intent to steal it. Supreme Court denied defendant’s request, reasoning that a claim of right instruction would not be permitted, and that there was no distinction in the present case between a claim of right instruction and a mistake of fact instruction. Defense counsel was permitted to argue mistake of fact to the jury, but would have to do so without the support of a jury charge.

In summation, defense counsel argued that defendant had been confused and thought the money she was trying to take was her own. The prosecutor emphasized that defendant had no right to resort to physical force to take money, regardless of whether she believed the money was hers.

Ultimately, Supreme Court gave the negative claim of right instruction, telling the jury that “the law does not permit one person to use force to take money from another person, even where the person doing the taking honestly believes he or she is entitled to the money.” Supreme Court did not give the mistake of fact instruction requested by the defense.

The jury found defendant guilty of all the charges except attempted robbery in the first degree, which count was dismissed on the People’s motion. Supreme Court denied defendant’s motion to dismiss, and defendant was duly convicted of the remaining charges, including attempted robbery in the second degree (Penal Law §§ 110.00, 160.10 [2] [a]).

On appeal, defendant argued that Supreme Court committed reversible error by refusing her requested mistake of fact charge and that the evidence was legally insufficient. The Appellate Division affirmed the judgment of conviction (81 AD3d 86 [1st Dept 2010]). A Judge of this Court granted defendant leave to appeal (16 NY3d 834 [2011]). We now affirm.

IIL

Robbery is defined as “forcible stealing” (Penal Law § 160.00); larceny is an element of robbery. Although it is a defense to larceny “that the property was appropriated under a claim of right made in good faith” (Penal Law § 155.15 [1]), our case law has limited the application of that defense to robbery. Forcibly taking the property of another, even when one honestly believes it to be one’s own property “entails the risk of physical or mental injury to individuals” (People v Reid, 69 NY2d 469, 476-477 [1987]). Thus, we have held that the claim of right defense may not be raised in a robbery case when a defendant takes money to satisfy a preexisting debt {id.). Moreover, we have held that, even when a claim of right defense is permitted, a jury instruction outlining the claim may not be given in a robbery case, “regardless of the nature of the property taken” (People v Green, 5 NY3d 538, 545 [2005]).

For these reasons, a jury instruction concerning a claim of right defense would not have been permissible in the present case. Defendant insists, however, that the jury instruction she sought related not to a claim of right, but to the defense of mistake of fact. Under that defense, a person is relieved of criminal liability for conduct that she engages in “under a mistaken belief of fact” if “[s]uch factual mistake negatives the culpable mental state required for the commission of an offense” (Penal Law § 15.20 [1] [a]).

Defendant’s argument misapprehends the relation between the claim of right defense and the mistake of fact defense. Depending on the underlying facts, the two defenses may overlap, such that the defenses are identical to one another. Insofar as defendant’s claim of right defense involves the claim that defendant had a mistaken belief that the property she tried to take was her own, it is also a mistake of fact defense, because it amounts to the claim that defendant’s “factual mistake negatives the culpable mental state required for the commission of [the] offense” (Penal Law § 15.20 [1] [a]), namely larcenous intent. In this factual scenario, the claim of right defense is a specific instance of the more general category of mistake of fact.

A mistake of fact defense, claiming that defendant erroneously but honestly believed that the property she tried to take was hers, is therefore governed by the same case law that restricts a claim of right defense. The mistake of fact defense, like the identical claim of right defense, will not apply when the crime involves taking money by force to satisfy a preexisting debt (see Reid, 69 NY2d at 476-477), and no jury instruction concerning that mistake of fact defense is permissible in a robbery case, “regardless of the nature of the property taken” (People v Green, 5 NY3d 538, 545 [2005]). It follows that, under Green, defendant was not entitled to the jury instruction that she requested on her mistake of fact defense.

IV

We now turn to the question whether the People were entitled to a negative claim of right charge.

Part of our rationale for disallowing a claim of right defense when a defendant takes money to satisfy a preexisting debt has been that a person cannot have a true claim to bills or other currency, because they are fungible (see Reid, 69 NY2d at 476). Generally, the law considers a defendant who believes that he is owed a sum of money, and then takes cash in that amount by force, to have committed robbery. On the other hand, a good faith belief that a chattel belongs to the taker would, if credited by the jury, negate the larcenous intent element of robbery (Green, 5 NY3d at 544).

The difference lies in whether defendant may have had a good faith belief that the particular property belonged to him. When a defendant takes a hundred dollars from a debtor by force, without any evidence to suggest that defendant cares about the particular bills making up that hundred dollars, defendant cannot be said to have a good faith belief that the bills are his own. On the other hand, when a defendant takes a painting, or a car, or a television set, he may have an honest belief that it is his own property he is retrieving.

Currency might be, in essence, chattel if its intrinsic qualities, as opposed to its monetary value, are significant to the defendant, for example if defendant takes what he mistakenly believes to be a Roman coin from his collection or what he incorrectly thinks is a bill he marked with a handwritten poem. One can also conceive of a situation in which cash acquires a chattel-like status, through the circumstances of the taking. A person who sees a burglar emerge from her home carrying what she believes to be bundles of cash she had left under her bed has a claim of right defense if she takes the cash back by force and it turns out that it was not hers.

Here, defendant’s mistake of fact or claim of right defense, to prevail, must rest on the theory that the $16 she attempted to take were, in essence, chattels, not fungible cash. But there was no evidence that the particular bills making up the $16 had any significance for defendant, or that she could identify them as hers. Those bills were change that the cabdriver produced after defendant gave him $20. Therefore, Supreme Court’s negative claim of right instruction was proper. Consequently, we find that the jury charge contained no error.

V

Defendant’s challenge to the sufficiency of the evidence rests on the argument that the People failed to disprove her mistake of fact defense. As we have noted, that defense, in this factual setting, amounts to a claim of right defense. It is an ordinary, not an affirmative, defense (People v Chesler, 50 NY2d 203, 209-210 [1980]), and the burden of disproving it, when raised, is on the People.

Here, the jury heard evidence that defendant had negotiated a $4 fare even though she carried $21; tried to pay the cabdriver the agreed fare from money he had given her as change, after retrieving from him the money she had paid him; scratched and bit the cabdriver in an effort to take money from him; and produced a knife while continuing to demand money. Considering the facts in the light most favorable to the People, as we must on a legal sufficiency challenge, the jury could have rationally concluded that defendant had no good faith belief that the bills she tried to take were hers, but was instead trying to take money she knew was another’s. The People met their burden of disproving the defense.

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

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

Order affirmed.