author: CIPARICK, J.

text:
    [802 NE2d 135, 769 NYS2d 785]
    Domen Holding Co., Appellant, v Irene S. Aranovich, Respondent, et al., Defendants.
    Argued October 23, 2003;
    decided November 24, 2003

      POINTS OF COUNSEL

      Greer & Associates, P.C., New York City (Ida Rae Greer, Melinda P. Lisanti and Stephanie H. Goodman of counsel), for appellant.
    I. The dismissal of appellant’s complaint seeking an order of ejectment based upon a nuisance was reversible error. (Frank v Park Summit Realty Corp., 175 AD2d 33, 79 NY2d 789; Novak v Fischbein, Olivieri, Rozenholc & Badillo, 151 AD2d 296; Valley Cts. v Newton, 47 Misc 2d 1028; Copart Indus. v Consolidated Edison Co. of N.Y., 41 NY2d 564, 42 NY2d 1102; Hughes v Lenox Hill Hosp., 226 AD2d 4, 90 NY2d 829; Avon Bard Co. v Aquarian Found., 260 AD2d 207, 93 NY2d 998; 190 Riverside Dr. v Nosei, 185 Misc 2d 696; D.K. Prop. v Mekong Rest. Corp., 187 Misc 2d 610; Carriage Ct. Inn v Rains, 138 Misc 2d 444; Chinatown Apts. v Chu Cho Lam, 51 NY2d 786.) II. The lower court erred by denying appellant’s motion for summary judgment as no triable issues of fact exist with respect to appellant’s proof of its nuisance claim. (601 W. 160 Realty Corp. v Henry, 183 Misc 2d 666, 189 Misc 2d 352; Walentas v Johnes, 257 AD2d 352, 93 NY2d 958; Sun Yau Ko v Lincoln Sav. Bank, 99 AD2d 943, 62 NY2d 938; Andre v Pomeroy, 35 NY2d 361; Metropolitan Life Ins. Co. v Carroll, 43 Misc 2d 639; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851; Alvarez v Prospect Hosp., 68 NY2d 320; Pastoriza v State of New York, 108 AD2d 605; Poluliah v Fidelity High Income Fund, 102 AD2d 720; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065.) III. The majority’s decision articulated public policy considerations which seemingly require urban dwellers to tolerate uncivilized behavior and discriminatory conduct otherwise proscribed by state and federal law. (People v Diaz, 188 Misc 2d 341.) IV The same articulated public policy considerations foreclose an owner from meaningfully fulfilling a duty to protect its tenants, its staff and its property from foreseeable harm. (Mason v U.E.S.S. Leasing Corp., 96 NY2d 875; Jacqueline S. v City of New York, 81 NY2d 288; Burgos v Aqueduct Realty Corp., 92 NY2d 544; Harris v Forklift Sys., 510 US 17; Danna v New York Tel. Co., 752 F Supp 594; Carrero v New York City Hous. Auth., 890 F2d 569; Department of Hous. & Urban Dev. v Rucker, 535 US 125.)

      MFY Legal Services, Inc., New York City (Adele Bartlett, Lynn M. Kelly, Andrew Goldberg and Jeanette Zelhof of counsel), for respondent.
    I. The decision of the Appellate Division that the allegations in the notice of termination were insufficient to constitute nuisance warranting eviction of respondent was correct. (Braschi v Stahl Assoc. Co., 74 NY2d 201; Berkeley Assoc. Co. v Camlakides, 173 AD2d 193; Chinatown Apts. v Chu Cho Lam, 51 NY2d 786; Kaycee W. 113th St. Corp. v Diakoff, 160 AD2d 573; Luxottica Group S.p.A. v Bausch & Lomb, 160 F Supp 2d 545; 40 W. 67th St. v Pullman, 100 NY2d 147; People v Garland, 69 NY2d 144; 42 W. 15th St. Corp. v Friedman, 208 Misc 123; Truncali v Kusstatscher, 61 Misc 2d 500; Metropolitan Life Ins. Co. v Moldoff, 187 Misc 458, 272 App Div 1039.) II. Appellant has made improper representations to this Court. (Equal Empl. Opportunity Commn. v Sam & Sons Produce Co., 872 F Supp 29; Meritor Sav. Bank v Vinson, 477 US 57; Harris v Forklift Sys., 510 US 17.)

      Borah, Goldstein, Altschuler, Schwartz & Nahins, P.C., New York City (Jeffrey R. Metz of counsel), for Rent Stabilization Association of N.Y.C., Inc., amicus curiae.
    I. In order to protect its innocent tenants, its staff, and itself, a landlord should be permitted to abate the nuisance of a physically threatening and verbally abusive occupant. (Copart Indus. v Consolidated Edison Co. of N.Y., 41 NY2d 564; Frank v Park Summit Realty Corp., 175 AD2d 33, 79 NY2d 789; Basso v Miller, 40 NY2d 233; Smith v Arbaugh’s Rest., 469 F2d 97, 412 US 939; Burgos v Aqueduct Realty Corp., 92 NY2d 544; Miller v State of New York, 62 NY2d 506; Firpi v New York City Hous. Auth., 175 AD2d 858; Acorn Realty v Torres, 169 Misc 2d 670; Harris v Forklift Sys., 510 US 17; Equal Empl. Opportunity Commn. v Sam & Sons Produce Co., 872 F Supp 29.)

      Brooklyn Legal Services Corp. B., Brooklyn (John C. Gray and Jennifer Levy of counsel), for Legal Aid Society and another, amici curiae.
    I. A notice purporting to terminate a rent-stabilized tenancy must state facts sufficient to establish grounds for eviction. (Berkeley Assoc. Co. v Camlakides, 173 AD2d 193, 78 NY2d 1098; First Sterling Corp. v Zurkowski, 142 Misc 2d 978; Stribula v Wien, 107 Misc 2d 114; Caiado v Bischoff, 140 Misc 2d 1014; New York Univ. v Farkas, 121 Misc 2d 643; City of New York v Valera, 216 AD2d 237; Giannini v Stuart, 6 AD2d 418; Jewish Theol. Seminary of Am. v Fitzer, 258 AD2d 337; Hughes v Lenox Hill Hosp., 226 AD2d 4, 90 NY2d 829; Kaycee W. 113th St. Corp. v Diakoff, 160 AD2d 573.) II. The notice served herein failed to state facts sufficient to establish a cause of action for nuisance. (Town of Hempstead v Zara & Sons Contr. Co., 173 AD2d 536; 301 E. 69th St. Assoc. v Eskin,
      156 Misc 2d 122; Metropolitan Life Ins. Co. v Moldoff, 187 Misc 458, 272 App Div 1039; Vukovic v Wilson, 245 AD2d 1; Pamac Realty Corp. v Bush, 101 Misc 2d 101; Frank v Park Summit Realty Corp., 175 AD2d 33, 79 NY2d 789; Acorn Realty v Torres, 169 Misc 2d 670.) III. Plaintiff-appellant must be held to the facts stated in the notice of termination. (Chinatown Apts. v Chu Cho Lam, 51 NY2d 786; Carriage Ct. Inn v Rains, 138 Misc 2d 444; Federal v Ortiz, 139 Misc 2d 274; Matter of 89 Christopher v Joy, 35 NY2d 213; 144 Woodruff Corp. v Lacrete, 154 Misc 2d 301.)
   OPINION OF THE COURT

CIPARICK, J.

Plaintiff, Domen Holding Co., is the owner and landlord of a residential building in Manhattan. Pursuant to a written apartment lease dated August 26, 1991 and subsequent renewal, defendants Irene S. Aranovich and her brother Jorge Aranovich are named tenants of a rent-stabilized apartment in that building. Mr. Aranovich no longer lives in the apartment. However, at some point during the tenancy, defendant Geoffrey Warren Sanders moved in with Ms. Aranovich. Since at least 1995, the landlord has received a number of complaints stemming from incidents involving Sanders. On more than one occasion, plaintiff provided Ms. Aranovich with written notice of the complaints and reminded her of her responsibility for the behavior of her guests.

In October 2000, plaintiff served a notice of termination upon the Aranovich tenants alleging that they were condoning and had failed to curtail Sanders’ “persistent pattern of antisocial and outrageous behavior,” which endangered the building’s tenants and staff. The notice alleged that Sanders’ behavior included, but was not limited to, the following:

“(a) ... (1) On or about the evening of August 30, 2000, Sanders was involved in an altercation with Wayne Ellis, one of the Owner’s doormen at the building, which altercation entailed Sanders’ use of profanity and racial epithets toward Mr. Ellis, and threatening physical injury to him. The police were called to the building and a complaint report number (10831) assigned.
“(2) On or about June 7, 1997, Sanders was involved in an altercation with Thomas DeRosa, who is the visually impaired tenant of the apartment directly above the Subject Premises. Said incident involved Sanders going to Mr. DeRosa’s apartment to complain to Mr. DeRosa of alleged noise emanating from Mr. DeRosa’s apartment, resulting in Sanders’ subsequent verbal abuse and threats to physically assault Mr. DeRosa. The police were called to the building and Mr. DeRosa filed a criminal harassment complaint against Sanders with the New York Police Department ....
“(3) On or about November 8, 1995, an incident occurred between Sanders and the building superintendent wherein the police were called to the building and a complaint was issued against Sanders.
“(b) Sanders’ conduct in persistently instigating arguments and altercations with others at the building, and his frequent and persistent use of profanity and racial slurs to and verbal intimidation of others at the building, is interfering with the other tenants’ and/or occupants’ comfort and rights to quiet enjoyment of their apartments.
“(c) Sanders’ aggressively antagonistic conduct continues to occur and is likely to occur again in the future.”

Ms. Aranovich and Sanders remained in possession of the apartment beyond October 16, 2000, the termination date set forth in the notice, and plaintiff commenced this action seeking an order of ejectment. Ms. Aranovich answered, interposing a counterclaim for breach of warranty of habitability. Plaintiff then moved for summary judgment. In support of its motion, plaintiff submitted the affidavits of Wayne Ellis, Thomas DeRosa and Vincent Giffuni, a partner in plaintiff partnership.

Ellis’ affidavit recounted the August 2000 incident, which allegedly began after Sanders slammed his fist against a building door. The affidavit continued that in response to Ellis’ question—“why he had hit the door”—Sanders used a racial slur and made similarly offensive comments, telling Ellis he “should speak to white people more respectfully.” Sanders also asked Ellis to “step outside.” Ellis further alleged that, since the service of the notice of termination, Sanders has confronted him, stating that he had a problem with Ellis and that he had a “nice crew for [him].” According to Ellis, “[a]s a doorman at the building, it is impossible for me to avoid Sanders as he enters and exits the building. I continue to fear that Sanders will one day carry out his threats.”

DeRosa witnessed the August 2000 incident and his affidavit corroborated Ellis’ affidavit in that regard. In addition, DeRosa described the June 1997 encounter, wherein Sanders allegedly complained that DeRosa’s dog made too much noise and Sanders had threatened to physically harm DeRosa. The police report relating to this incident stated that Sanders specifically threatened DeRosa, saying “I would stomp in your head the way you stomp on the floor.”

The affidavit of Vincent Giffuni alleged that the November 1995 incident between Sanders and the then-building superintendent involved Sanders shoving and shouting profanities at the superintendent. In addition, plaintiff submitted a copy of a letter written to Ms. Aranovich addressing that altercation and noting that it was not the first involving Sanders. Additional correspondence between the landlord and Ms. Aranovich and police complaints referencing the above incidents were also submitted.

Ms. Aranovich cross-moved for summary judgment dismissing the complaint, contending that plaintiff failed to state a cause of action for nuisance. Specifically, she argued that the three incidents alleged in the notice of termination did not endanger other tenants or staff and were too remote in time to constitute a nuisance.

Supreme Court denied plaintiffs motion for summary judgment and granted the cross motion for summary judgment dismissing the complaint. The court held that the “three isolated instances” of Sanders’ conduct were insufficient as a matter of law to state a claim for nuisance and that, although the notice and affidavits referred to other instances of antisocial conduct, no record evidence existed to support those allegations. The Appellate Division, with two Justices dissenting, affirmed. Explicitly limiting its review to the allegations set forth in the notice of termination, the Court held that, as a matter of law, the three instances, to the extent they were documented in the notice, were insufficient to establish an actionable claim for nuisance warranting eviction. The two dissenting Justices opined that an issue of fact was presented whether Sanders’ conduct constituted a nuisance. Plaintiff appeals as of right pursuant to CPLR 5601 (a). We agree with the dissenting Justices and hold that the Appellate Division order should be modified to deny Ms. Aranovich’s cross motion for summary judgment, reinstate the complaint and remit to Supreme Court for a trial on the issues.

Analysis

The Rent Stabilization Code provides that no tenant shall be evicted “unless and until the owner [gives] written notice to such tenant . . . [which states] [1] the ground under section 2524.3 . . . upon which the owner relies for removal or eviction of the tenant, [2] the facts necessary to establish the existence of such ground, and [3] the date when the tenant is required to surrender possession” (9 NYCRR 2524.2 [a], [b]). Section 2524.3 includes as a ground for eviction circumstances where “[t]he tenant is committing or permitting a nuisance in such housing accommodation or the building containing such housing accommodation” (9 NYCRR 2524.3 [b]). Therefore, rent-stabilized tenants may be subject to eviction for the nuisance created by other occupants or guests on tenant’s premises.

To constitute a nuisance the use of property must interfere with a person’s interest in the use and enjoyment of land (see Restatement [Second] of Torts § 82ID; see also Copart Indus. v Consolidated Edison Co. of N.Y., 41 NY2d 564, 568 [1977]). The term “use and enjoyment” encompasses the pleasure and comfort derived from the occupancy of land and the freedom from annoyance (see Restatement [Second] of Torts § 82 ID, Comment b; see also Nussbaum v Lacopo, 27 NY2d 311, 315 [1970]). However, not every annoyance will constitute a nuisance (see 2 Dolan, Rasch’s Landlord and Tenant—Summary Proceedings § 30:60, at 465 [4th ed]). Nuisance imports a continuous invasion of rights—“a pattern of continuity or recurrence of objectionable conduct” (Frank v Park Summit Realty Corp., 175 AD2d 33, 34 [1st Dept 1991], mod on other grounds 79 NY2d 789 [1991]).

Here, Ms. Aranovich argues that, in reviewing the sufficiency of plaintiffs nuisance claim, we are strictly limited to the factual allegations as set forth in the notice of termination. Relying on Chinatown Apts. v Chu Cho Lam (51 NY2d 786 [1980]), she contends that the “deficiency” in the notice cannot be retroactively cured through the pleadings and affidavits submitted in support of plaintiffs motion for summary judgment. The notice of termination at issue here, however, is adequate and the subsequent submissions were not an attempt to cure a defect in the notice. Rather, they are an elaboration of incidents alleged and provide evidence of ongoing nuisance in support of plaintiffs motion for summary judgment.

While surely a high threshold of proof would be required for eviction, we cannot conclude as a matter of law, as the courts below did, that dismissal of the complaint was warranted. The notice clearly provides that nuisance is the ground upon which plaintiff relies for tenants’ eviction and sets forth the facts necessary to establish that ground (see 9 NYCRR 2524.2 [a], [b]; 2524.3 [b]). The notice provides fact-specific examples of Sanders’ outrageous conduct and details his use of profanity, racial epithets and threats of violence against Ellis, his threats to physically harm DeRosa and his actual use of violence against the superintendent. It includes names, dates, a description of the misconduct and police complaint numbers. The notice further alleges that Sanders’ behavior was not limited to the three listed instances and generally provides that Sanders persistently instigates arguments and altercations with others in the building.

These allegations of Sanders’ conduct are of the type that may render the enjoyment of the building especially uncomfortable—indeed, they may even be threatening and frightening— for other tenants and building staff. While the incidents detailed in the notice occurred over a five-year period, their severity and the circumstances under which they allegedly took place tend to support plaintiffs contention that Sanders displays intolerance and aggression toward those living and working within the building. The allegations further may suggest that Sanders is easily incensed and prone to violent outbursts from time to time and, therefore, that his continued residency in the building places the comfort and health of others in the building at a constant risk. These are matters yet to be established.

The notice of termination, however, adequately apprised defendants as to the grounds upon which it was based, allowing them to prepare a legal defense. It further advised as to the date the tenancy would be terminated and tenants would be required to surrender possession of the apartment. We conclude that the notice of termination here constitutes a proper predicate for the ejectment proceeding based on the tenants’ wrongful acts pursuant to the Rent Stabilization Code (see 9 NYCRR 2524.2 [a], [b]; 2524.3 [b]).

Plaintiff, however, seeks summary judgment in its favor, contending that the record demonstrates that there exists no triable issue of fact as to its nuisance claim, that defendants have failed to controvert the allegations of misconduct and that defendants have further failed to assert meritorious defenses. We agree with the dissenting Justices that there is an issue of fact as to whether “Sanders’ presence in the building has resulted in a recurring or continuing pattern of objectionable conduct threatening the comfort and safety of others in the building sufficient to constitute a nuisance” (302 AD2d 132, 139 [2003]). It may well be that a “recurring or continuing pattern” lies here, but such determination should be made upon a trial of the facts and is not proper for summary disposition.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be modified, without costs, to deny the cross motion for summary judgment dismissing the complaint and, as so modified, affirmed.

Chief Judge Kaye and Judges G.B. Smith, Rosenblatt, Graffeo and Read concur.

Order, insofar as appealed from, modified, etc.

      . Jorge Aranovich and Geoffrey Sanders appeared pro se and interposed general denials.

      . Ms. Aranovich’s sole counterclaim for breach of warranty of habitability was severed and transferred to Civil Court. Plaintiffs request for use and occupancy was denied without prejudice to plaintiffs bringing an action in Civil Court.

      . The relevant subdivisions of 9 NYCRR 2524.2 provide in full:
      “(a) Except where the ground for removal or eviction of a tenant is nonpayment of rent, no tenant shall be removed or evicted from a housing accommodation by court process, and no action or proceeding shall be commenced for such purpose upon any of the grounds permitted in section 2524.3 or 2524.4 of [this] Part, unless and until the owner shall have given written notice to such tenant as hereinafter provided.
      “(b) Every notice to a tenant to vacate or surrender possession of a housing accommodation shall state the ground under section 2524.3 or 2524.4 of this Part, upon which the owner relies for removal or eyiction of the tenant, the facts necessary to establish the existence of such ground, and the date when the tenant is required to surrender possession.”


source: Caselaw Access Project

author: Chief Judge Kaye. Graffeo, J.

license: Public Domain

text:
    [802 NE2d 141, 769 NYS2d 791]
    The People of the State of New York, Respondent, v Juan Carlos Pichardo, Appellant.
    Argued October 23, 2003;
    decided December 2, 2003

      POINTS OF COUNSEL

      Legal Aid Society Criminal Appeals Bureau, New York City (Deepa Rajan and Andrew C. Fine of counsel), for appellant.
    Defendant’s guilty plea should be vacated because he pleaded guilty in exchange for the express promise of a lesser sentence concurrent with the sentence on a judgment of conviction that has since been vacated. (People v Clark, 45 NY2d 432; People v Lowrance, 41 NY2d 303; People v Taylor, 80 NY2d 1; People v Boston, 75 NY2d 585; People v Fuggazzatto, 96 AD2d 538, 62 NY2d 862; People v Rogers, 48 NY2d 167; People v Coles, 62 NY2d 908; People v Rolston, 50 NY2d 1048; People v Harris, 48 NY2d 208; People v Riale, 274 AD2d 971.)

      Robert T. Johnson, District Attorney, Bronx (Cynthia J. Pree and Joseph N. Ferdenzi of counsel), for respondent.
    Defendant’s conviction for criminal sale of a controlled substance in the third degree should not be vacated, where the state’s sentencing promise made to defendant, a term of 1 to 3 years running concurrent to an unrelated conviction, has been kept. (People v Lowrance, 50 AD2d 769, 41 NY2d 303; People v Clark, 45 NY2d 432; People v Fuggazzatto, 96 AD2d 538, 62 NY2d 862; People v Rogers, 63 AD2d 867, 48 NY2d 167; People v Boston, 75 NY2d 585; People v Taylor, 174 AD2d 430, 80 NY2d 1; People v Huertas, 85 NY2d 898; People v Hood, 62 NY2d 863; People v Olivero, 272 AD2d 174; People v Walker, 224 AD2d 781.)
   OPINION OF THE COURT

Chief Judge Kaye.

On November 14, 1994, in Supreme Court, New York County, defendant was sentenced to 20 years to life imprisonment after having been found guilty of murder in the second degree. On that day, defendant filed a notice of his intent to appeal. Precisely one week later defendant was produced in Supreme Court, Bronx County, in connection with an indictment for criminal sale of a controlled substance in the third degree (one count) and. criminal possession of a controlled substance in the third degree (two counts), carrying a possible maximum sentence of SVs to 25 years; these were defendant’s only arrests.

In Bronx County, defendant agreed to plead guilty to the top count of the indictment in exchange for a sentence of 1 to 3 years to run concurrently with the murder sentence. Defendant pleaded guilty to criminal sale of a controlled substance in the third degree, admitting that on January 5, 1994, he sold one bag of cocaine to an undercover officer in exchange for $20; he was subsequently sentenced to l-to-3 years’ imprisonment.

On June 24, 1998, defendant’s appellate attorney moved to vacate his murder conviction, arguing that he had been denied effective assistance of trial counsel. On January 11, 2000, the Judge who had presided over the trial vacated defendant’s murder conviction and ordered a new trial, concluding that he had not received reasonably competent representation and that counsel’s errors seriously compromised defendant’s right to a fair trial. The court noted that counsel seemed to be unfamiliar with important Rosario material in his possession, failing to impeach the People’s primary witness—the only witness connecting defendant to the shooting—and never calling potentially exculpatory witnesses to challenge that identification. In vacating the murder conviction, the Trial Judge coupled these failures with defense counsel’s “regrettable ignorance of basic principles of criminal law, his failure to recognize the appropriate scope of cross-examination of his client before putting him on the witness stand, and his failure to effectively challenge the People’s identification evidence, misidentification being a defense entirely compatible with and ordinarily accompanying the defense of alibi.”

On June 15, 2000 defendant was retried and acquitted of the murder. By this time, he had fully served the l-to-3-year drug sentence.

Days after his acquittal, defendant brought a CPL 440.10 motion to vacate his Bronx County conviction on the ground that his plea had been induced by the promise that his sentence would run concurrently with the New York County sentence, since set aside. Supreme Court granted defendant’s motion, finding that the “appellate court consistently vacated guilty pleas which were induced by a promise of a concurrent sentence following the reversal of the original conviction without noting whether the later sentence had already been served” (internal citations omitted).

The Appellate Division reversed and reinstated defendant’s Bronx conviction based on the “totality of these circumstances,” citing unrelated indictments in different counties before different judges (298 AD2d 101, 102 [1st Dept 2002]). The Appellate Division further noted that when defendant pleaded guilty in Bronx County the court stated that the sentence would be concurrent “with any other sentence being served,” which on its face appeared to promise a concurrent sentence only if there was another sentence to be served (id.). We now reverse and reinstate the order of Supreme Court, Bronx County, vacating the plea..

Discussion

This Court on several occasions has concluded that when a guilty plea is induced by the court’s explicit promise that the defendant will receive a lesser sentence to run concurrently with a sentence in another case, and that conviction is overturned, the defendant may withdraw his plea and face the indictment, since the promise cannot be kept (see People v Taylor, 80 NY2d 1 [1992]; People v Boston, 75 NY2d 585 [1990]; People v Fuggazzatto, 62 NY2d 862 [1984]; People v Rogers, 48 NY2d 167 [1979]; People v Clark, 45 NY2d 432 [1978]). In all of these cases, defendants raised no challenge to the validity of their pleas—concededly they had admitted their guilt before the court, including factual details of the crimes charged. What was in issue was the fundamentally changed condition that induced their admission of guilt: a sentencing promise based on an explicit understanding that, by virtue of the plea, there would be no additional prison time.

When it is unclear that such a promise was made, vacatur of the plea is unwarranted (see People v Lowrance, 41 NY2d 303, 304 [1977]). Were the Appellate Division correct in suggesting ambiguity in the plea arrangement now before us, the result might well be otherwise. Here, however, the Bronx court was crystal-clear in promising a sentence concurrent with the New York County sentence. As the Judge told defendant in imposing a l-to-3-year sentence, “that sentence runs concurrent or together with the sentence you are now serving.” Indeed, the Judge himself several times underscored that point.

In our Court, the People’s argument centers on the fact that, having completed his drug sentence concurrently with time being served for murder, defendant actually received what he bargained for; thus, the promise was in fact fulfilled. But the fortuity of timing cannot be determinative of the issue, as it was not in Boston or Fuggazzato, where defendants also had served out their lesser sentences by the time they sought vacatur of their pleas. It cannot be that, in these circumstances, a plea may be vacated if defendant happens still to be serving the lesser sentence, and otherwise not.

What changed essentially here were the- facts that induced defendant’s plea. In effect, when the murder conviction was vacated, defendant’s “concurrent” time became a nullity—in the eyes of the law, it is as if he served no time at all on the murder, and his sentence on the drug charge stood alone, based on an unfulfilled and unfulfillable promise. On this record, we cannot say that defendant would have foregone pretrial and trial rights and pleaded guilty to the top count of the Bronx County indictment—based on the sale of a $20 bag of cocaine to an undercover officer—had it not been for the New York County conviction for murder, of which he now stands acquitted.

Finally, for the future, we note that a better practice might be for the parties in similar circumstances to spell out, on the record, the consequences that will follow upon vacatur of the conviction (see People v Rivera, 195 AD2d 389, 390 [1st Dept 1993]).

Accordingly, the order of the Appellate Division should be reversed and the order of Supreme Court, Bronx County, vacating the plea reinstated.

Graffeo, J.

(dissenting). We respectfully dissent because we do not believe that the Appellate Division erred in concluding that defendant was not entitled to vacatur of his conviction of criminal sale of a controlled substance in the third degree. We would therefore affirm the Appellate Division’s determination to reinstate the drug-sale conviction.

In November 1994, defendant pleaded guilty to selling cocaine in return for a 1-to- 3-year prison sentence that would run concurrently with a previously imposed sentence for a second-degree murder conviction. After defendant completed the term of imprisonment for the drug sale, his murder conviction was vacated and, in June 2000, he was acquitted on retrial of all charges pertaining to the homicide. Supreme Court subsequently vacated the drug conviction, concluding that it had been induced by the promise of a sentence that would be concurrent to the overturned murder conviction.

We agree with the majority that this Court has permitted plea vacatur where a guilty plea was induced by a promise to allow a defendant to receive a lesser sentence intended to run concurrently with a sentence imposed for another crime and that prior conviction is later vacated (see e.g. People v Taylor, 80 NY2d 1, 15 [1992]). In this case, however, we believe that vacatur is unwarranted because the lesser sentence was completed while defendant was serving a concurrent sentence and it is not manifestly unjust to hold defendant to his negotiated plea.

In People v Fuggazzatto (62 NY2d 862 [1984]), two indictments were filed simultaneously and were therefore subject to identical time periods for the People to announce their readiness for trial under CPL 30.30. The defendant’s CPL 30.30 motion to dismiss the indictments for untimely prosecution was denied and he elected to proceed to trial on the first indictment. After being convicted, the defendant pleaded guilty to the second indictment in exchange for a sentence that “would run concurrently with and not exceed the first.” On appeal of the first conviction, the Appellate Division reversed, concluding that the People failed to comply with CPL 30.30. This Court agreed. Having entered a guilty plea to the second indictment, however, the defendant had waived his right to raise the CPL 30.30 issue with respect to that conviction on appeal (see People v Savage, 54 NY2d 697, 698 [1981]). Because it would have been manifestly unjust to deprive the defendant of that relief, this Court concluded that vacatur of the plea was appropriate even though the concurrent sentence had been completed.

People v Boston (75 NY2d 585 [1990]) similarly illustrates circumstances under which it would be unfair to allow a plea to stand. The defendant in Boston—a 15-year-old boy—was indicted for attempted intentional murder in the second degree, first-degree assault and criminal possession of a weapon in the fourth degree. With the defendant’s consent, the People filed a superior court information charging one count of attempted depraved indifference murder based on the same criminal incident. After consolidation of the superior court information and the indictment, the defendant pleaded guilty to attempted depraved indifference murder and first-degree assault in return for two concurrent indeterminate prison terms. This Court overturned the attempted murder conviction on the ground that the defendant’s waiver of indictment was not in accord with CPL 195.10. The assault conviction was vacated as well because the assault was inextricably related to the murder, both having stemmed from the same criminal incident.

The same cannot be said in this case. Defendant pleaded guilty to a crime that was completely unrelated to the murder charge. He knowingly and voluntarily admitted that he sold cocaine and, in exchange, received the most lenient sentence allowed by law—1 to 3 years of imprisonment—rather than the 81/s to 25-year maximum sentence that could have been imposed. The prison term ran concurrently with the sentence imposed for the prior murder conviction, as defendant was promised, and he completed the drug-sale sentence well before the murder conviction was overturned (cf. People v Hooper, 302 AD2d 894, 895 [4th Dept 2003]). In other words, defendant received the full benefit of his negotiated bargain. Because the drug and murder prosecutions stemmed from unrelated incidents, the charges did not share any common defenses or procedural avenues of relief, and the concurrent murder sentence remained in full force until defendant completed his drug-sale sentence, there is nothing manifestly unfair about allowing the drug conviction to stand. In addition, it has now been almost a decade since defendant’s plea allocution, and this lapse of time will undoubtably impede the People’s ability to retry defendant.

Finally, there was no showing in the record that defendant would not have pleaded guilty and accepted the People’s offer if he had not been convicted of murder. The evidence against defendant was compelling, he received the most advantageous sentence possible and, most significantly, neither defendant nor his counsel suggested that defendant did not, in fact, sell the cocaine. In his motion to vacate the plea, defendant did not assert that he had a meritorious defense or contend that he would not have pleaded guilty if not for the murder conviction (see generally People v McDonald, 1 NY3d 109, 115 [2003]). Under the circumstances of this case, because defendant received the full benefit of his bargain and it would not be manifestly unfair to allow the plea to stand, we conclude that the Appellate Division did not abuse its discretion in finding insufficient justification to grant defendant’s motion.

Judges Cipakick, Rosenblatt and Read concur with Chief Judge Kaye; Judge Graffeo dissents and votes to affirm in a separate opinion in which Judge G.B. Smith concurs.

Order reversed, etc.

      . On October 11, 1995, Daniel L. Greenberg, Esq. was assigned as counsel for defendant for purposes of the appeal (see People v Pichardo, 1st Dept, Oct. 11, 1995, M-4651, Indictment No. 1883/94).

      . In a letter to the 440 motion court, dated June 7, 1999, defendant’s appellate attorney explained that he had “not yet filed a brief on appeal because resolution of the CPL 440.10 motion is integral to resolution of the appeal.” The court subsequently held a hearing on defendant’s motion.

      . Defendant also claimed that Brady material was wrongfully withheld by the People. While the court agreed the People failed to turn over this material—inadvertently—it held that the failure to recognize or explore the potential of this material was defense counsel’s alone, and another example of his ineffectiveness.

      . It would, for example, be wholly arbitrary to permit a defendant with days or weeks remaining on a sentence to seek vacatur of his conviction, but to deny that remedy to a defendant whose sentence had just been completed. CPL 440.10 (1) expressly permits the filing of a motion to vacate “[a]t any time after the entry of a judgment” (emphasis added).


author: Chief Judge Kaye.

text:
    [802 NE2d 616, 770 NYS2d 277]
    County of Nassau, Appellant, v Michaele K. Canavan, Respondent.
    Argued October 21, 2003;
    decided November 24, 2003

      POINTS OF COUNSEL

      Lorna B. Goodman, County Attorney, Mineola (Dennis J. Saffran and David B. Goldin of counsel), for appellant.
    I. Section 8-7.0 (g) of the Nassau County Administrative Code is not unconstitutionally vague, either facially or as applied to driving while intoxicated offenders. Indeed, the vagueness doctrine does not apply at all, because section 8-7.0 (g) creates no new prohibitions or rules of conduct, but merely provides another sanction for existing crimes. (People v Nelson, 69 NY2d 302; City of Chicago v Morales, 527 US 41; Kolender v Lawson, 461 US 352; Village of Hoffman Estates v Flipside, Hoffman Estates, Inc., 455 US 489; Smith v Goguen, 415 US 566; Ulster Home Care v Vacco, 96 NY2d 505; People v Cruz, 48 NY2d 419, 446 US 901; Connally v General Constr. Co., 269 US 385; Coates v City of Cincinnati, 402 US 611; Lanzetta v New Jersey, 306 US 451.) II. The seizure and forfeiture of defendant’s car under Nassau County Administrative Code § 8-7.0 (g) following her arrest for driving while intoxicated was not an excessive fine in violation of the Federal or State Constitutions. (Grinberg v Safir, 181 Misc 2d 444, 266 AD2d 43; United States v Bajakajian, 524 US 321; Solem v Helm, 463 US 277; Austin v United States, 509 US 602; United States v Myers, 21 F3d 826; United States v Chandler, 36 F3d 358, 514 US 1082; United States v Milbrand, 58 F3d 841; Matter of Attorney-General of State of N.Y. v One Green 1993 Four Door Chrysler, 217 AD2d 342; United States v Certain Real Prop. & Premises Known as 38 Whalers Cove Dr., 954 F2d 29, cert denied sub nom. Levin v United States, 506 US 815; Rochin v California, 342 US 165.) III. Defendant was not entitled to a hearing prior to the seizure of her car incident to her driving while intoxicated arrest. Nor did the seizure and forfeiture of her car in any other way violate her right to due process. (People v Saffore, 18 NY2d 101; People v P.J. Video, 68 NY2d 296; Calero-Toledo v Pearson Yacht Leasing Co., 416 US 663, 417 US 977; Grinberg v Safir, 181 Misc 2d 444; United States v James Daniel Good Real Prop., 510 US 43; Mathews v Eldridge, 424 US 319; Krimstock v Kelly, 306 F3d 40; Fuentes v Shevin, 407 US 67.)

      Michael A. Montesano, P.C., Glen Cove (Michael A. Montesano and Theresa Vazquez of counsel), for respondent.
    I. The Appellate Division was correct when it held that the Nassau County Administrative Code violates due process in that it is vague and does not provide the public with sufficient notice of what offending conduct will result in the forfeiture. (United States v

      Schneiderman, 968 F2d 1564, 507 US 921; Grayned v City of Rockford, 408 US 104; Giaccio v State of Pennsylvania, 382 US 399; Bennis v Michigan, 516 US 442.) II. The Appellate Division was correct when it held that the Nassau County Administrative Code violates due process in that it is vague. The provision fails to provide safeguards for the interim deprivation between the time of the warrantless seizure and the final disposition and, thus, it is constitutionally infirm. (Lee v Thornton, 538 F2d 27; Krimstock v Kelly, 306 F3d 40; United States v James Daniel Good Real Prop., 510 US 43.) III. Due process under the Fourteenth Amendment of the United States Constitution and/or its parallel in the New York State Constitution, article I (§ 6), was violated by the county’s application of the Administrative Code provision. (Krimstock v Kelly, 306 F3d 40; Mathews v Eldridge, 424 US 319; Joint Anti-Fascist Refugee Comm. v McGrath, 341 US 123; Tedeschi v Blackwood, 410 F Supp 34; Lee v Thornton, 538 F2d 27.) IV Protections afforded by due process, under the Fourteenth Amendment of the United States Constitution and/or its parallel in the New York State Constitution, article I (§6), are violated by the inconsistent results in the court’s application of the forfeiture laws. (Bennis v Michigan, 516 US 442; Pringle v Wolfe, 88 NY2d 426.) V Civil forfeiture of a vehicle as applied under the Nassau County Administrative Code violates the Eighth Amendment and/or its parallel, article ,1 (§5) of the New York State Constitution. (Austin v United States, 509 US 602; Grinberg v Safir, 181 Misc 2d 444; United States v Bajakajian, 524 US 321; United States v Milbrand, 58 F3d 841; Matter of Attorney-General of State of N.Y. v One Green 1993 Four Door Chrysler, 217 AD2d 342.)
   OPINION OF THE COURT

Chief Judge Kaye.

We are asked to consider the validity of Nassau County’s civil forfeiture statute, pursuant to which defendant’s car was seized.

On September 6, 2000, defendant was arrested and charged with driving while intoxicated, speeding and failure to signal. The 1995 Saturn automobile she had been driving, valued at $6,500, was seized incident to her arrest, and defendant was given notice of the possibility that the car might be forfeited to the County of Nassau. The car was impounded, where it remained throughout the pendency of defendant’s criminal case.

In November 2000, defendant pleaded guilty to the traffic infractions of speeding and driving while impaired by alcohol and. was sentenced to a $400 fine, completion of a drinking-driver program and suspension of her license. The following month, after defendant demanded the return of her car, the County commenced a civil forfeiture action under Nassau County Administrative Code § 8-7.0 (g) (3). Supreme Court granted summary judgment to the County and the Appellate Division reversed, holding that the ordinance under which defendant’s car had been seized was unconstitutionally vague.

We note at the outset that, when implemented pursuant to a carefully drafted statute, civil forfeiture of automobiles can be an extremely effective tool in the battle against drunk driving. In the 34-month period following Nassau County’s institution of a program in which the County routinely sought the forfeiture of automobiles used for intoxicated driving, drunk driving accidents decreased by 26%. Driving while intoxicated poses a grave risk of injury or death to innocent motorists and pedestrians. Nevertheless, because we conclude that the ordinance adopted by Nassau County did not satisfy constitutional requirements, we now affirm the order of the Appellate Division, which reached the same conclusion, albeit for different reasons.

I.

Administrative Code § 8-7.0 (g) (3) provides:

“The County of Nassau may commence a civil action for forfeiture to the County of Nassau of the proceeds of a crime, substituted proceeds of a crime or instrumentality of a crime seized incident to an arrest for a misdemeanor crime or petty offense or upon a conviction for such misdemeanor crime or petty offense against any person having an interest in such property.”

The ordinance defines an “instrumentality of a crime” as “any property, other than real property and any buildings, fixtures, appurtenances, and improvements thereon, whose use contributes directly and materially to the commission of any offense” (Administrative Code § 8-7.0 [g] [1] [d]).

The prohibition against vagueness mandates that a criminal statute provide fair notice of the conduct that is proscribed and that it not permit or encourage arbitrary and discriminatory enforcement (see e.g. People v Bright, 71 NY2d 376, 382 [1988]). Of primary importance is “the requirement that a legislature establish minimal guidelines to govern law enforcement” (Kolender v Lawson, 461 US 352, 358 [1983] [citation omitted]).

Since the Nassau County ordinance makes clear what conduct may lead to forfeiture of an instrumentality of a crime— the commission of any misdemeanor or petty offense, including any traffic infraction, all of which are particularly defined and all of which provide fair notice of the conduct that is proscribed—the Appellate Division erred when it concluded that the statute was unconstitutionally vague. The ordinance “may be stringent and harsh but it is not vague. . . . The discretion left to enforcing officers is not one of defining the offense. It is merely that of matching the measure of the discipline to the specific case” (Barsky v Board of Regents of Univ., 347 US 442, 448 [1954], affg 305 NY 89 [1953]).

Misdemeanors are defined in the Penal Law, and petty offenses, in the Criminal Procedure Law. Defendant’s automobile was seized upon an arrest for an offense clearly defined by statute. We therefore hold that the ordinance is not unconstitutionally vague.

II.

Both the Federal and State Constitutions prohibit the imposition of excessive fines (see US Const 8th Amend; NY Const, art I, § 5). The Excessive Fines Clause thus “limits the government’s power to extract payments, whether in cash or in kind, as ‘punishment for some offense’ ” (Austin v United States, 509 US 602, 609-610 [1993] [citation omitted]). Forfeitures—payments in kind—are “fines” if they constitute punishment for an offense (see United States v Bajakajian, 524 US 321, 328 [1998]). As the County concedes, the civil forfeiture at issue here serves, at least in part, deterrent and retributive purposes and is thus punitive and subject to the Excessive Fines Clause (see Austin, 509 US at 619-622; Bajakajian, 524 US at 328-329).

Inasmuch as a punitive forfeiture of an instrumentality of a crime “violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant’s offense” (Bajakajian, 524 US at 334), we reject defendant’s claim that the forfeiture of her car constituted an excessive fine. In determining gross disproportionality, we consider such factors as the seriousness of the offense, the severity of the harm caused and of the potential harm had the defendant not been caught, the relative value of the forfeited property and the maximum punishment to which defendant could have been subject for the crimes charged, and the economic circumstances of the defendant.

On the facts of this case, we conclude that the forfeiture of defendant’s car was not at all disproportionate to the gravity of her offense. The offense with which she was originally charged—driving while intoxicated—is a very serious crime. Grievous harm to innocent victims could have been caused by defendant’s driving with a blood alcohol level of .15% while speeding and weaving in and out of lanes, had she not been caught and stopped. Given the gravity of the crime of drunk driving, it is difficult to imagine that forfeiture of an automobile for such a crime could ever be excessive. Surely it was not so here.

We note, however, that since, pursuant to the ordinance, every conceivable offense—however minor—may be subject to forfeiture, limited only by the discretion of county officials in determining whether to invoke it, the potential for disproportionality is great. Moreover, without clear notice to the public that a particular punishment may be imposed for a particular offense, the deterrent effect of the penalty may be lost. In any event, the forfeiture of an automobile for a minor traffic infraction such as driving with a broken taillight or failing to signal would surely be “grossly disproportional to the gravity of a defendant’s offense” (Bajakajian, 524 US at 334).

Although the County has, as a matter of policy, decided to focus its enforcement efforts on drunk driving arrests, the ordinance by its terms permits forfeiture for any offense. Moreover, the County advises us that the challenged Code provision is utilized to seek forfeiture in non-drunk driving cases as well. The statute itself is thus devoid of standards as to which petty offenses will result in the implementation of the forfeiture provision, thereby enhancing the opportunity for disproportionate enforcement. Indeed, the County’s unilateral decision to invoke the ordinance’s nearly limitless application in certain instances and not in others highlights the infirmity inherent in the statute itself. By encompassing many minor and technical violations that could not justify forfeiture, the ordinance, as enacted, risks violation of the Excessive Fines Clause.

III.

Defendant contends that by not affording her a hearing prior to the initial seizure of her car, the Administrative Code provision deprived her of property without due process of law. While we disagree that due process mandates a hearing prior to the initial seizure, we conclude that a prompt post-seizure hearing is required in all cases.

As a general rule, “individuals must receive notice and an opportunity to be heard before the Government deprives them of property” (United States v James Daniel Good Real Prop., 510 US 43, 48 [1993]). In limited circumstances, however,

“immediate seizure of a property interest, without an opportunity for prior hearing, is constitutionally permissible. Such circumstances are those in which ‘the seizure has been directly necessary to secure an important governmental or general public interest. Second, there has been a special need for very prompt action. Third, the State has kept strict control over its monopoly of legitimate force: the person initiating the seizure has been a government official responsible for determining, under the standards of a narrowly drawn statute, that it was necessary and justified in the particular instance’ ” (Calero-Toledo v Pearson Yacht Leasing Co., 416 US 663, 678 [1974], quoting Fuentes v Shevin, 407 US 67, 91 [1972]).

When the forfeited property consists of a vehicle, the property’s mobility creates “a special need for very prompt action that justified] the postponement of notice and hearing until after the seizure” (James Daniel Good, 510 US at 52 [citation and internal quotation marks omitted]).

In the context of lawful arrests for driving while intoxicated, immediate seizure by the police of a defendant’s car—the instrumentality of the crime of drunk driving—helps to secure important public and governmental interests in ensuring both safety on the roads and the enforceability of any subsequent forfeiture order. Here, inasmuch as she had been arrested for driving while intoxicated, defendant was both legally and physically incapable of driving. No one else was present with her in the car. In addition, an immediate seizure of the automobile— which could easily be removed to another jurisdiction, destroyed or concealed—was necessary to enable the County to assert jurisdiction over it in anticipation of a later forfeiture proceeding. A pre-seizure hearing was therefore not required.

After the County took initial possession of the vehicle, however, due process required that a prompt retention hearing be provided. Pursuant to the Nassau County Administrative Code, a civil action seeking forfeiture need not be commenced until 120 days have passed after the initial seizure (see Administrative Code § 8-7.0 [g] [5]). Once commenced, the action may not be finally resolved for many months or years, particularly because upon motion of either the defendant or the County, the action must be stayed during the pendency of the underlying criminal case (see id.).

In Mathews v Eldridge (424 US 319, 335 [1976]), the Supreme Court set forth three factors to weigh in determining whether due process is satisfied when the government seeks to maintain possession of property before a final judgment is rendered: (1) the private interest affected; (2) the risk of erroneous deprivation through the procedures used and the probable value of other procedural safeguards; and (3) the government’s interest. “These factors should be used to evaluate the adequacy of process offered in post-seizure, pre-judgment deprivations of property in civil forfeiture proceedings” (Krimstock v Kelly, 306 F3d 40, 60 [2d Cir 2002]; see also Morgenthau v Citisource, Inc., 68 NY2d 211, 221 [1986]).

A balancing of these factors mandates that post-seizure hearings be routinely provided. Especially in light of the potential length of the deprivation before a final determination on the merits, the private interest affected by the deprivation of an automobile may be significant. When cars are owned by others or shared among household members, for example, seizure may affect not only a culpable defendant, but also other innocent parties. Moreover, automobiles are often an essential form of transportation and, in some cases, critical to life necessities, earning a livelihood and obtaining an education. Nor is the importance of defendants’ possessory interest diminished by the likelihood that they might lose and the County might eventually prevail in forfeiture proceedings. “Fair procedures are not confined to the innocent. The question before us is the legality of the seizure, not the strength of the Government’s case” (James Daniel Good, 510 US at 62).

A prompt post-seizure hearing will minimize the risk of erroneous deprivation. Of course, it may well be that the County will be able to establish at such hearings its entitlement to seize and retain the vehicles of most defendants arrested without a warrant for driving while intoxicated. The right to be heard, however, “does not depend upon an advance showing that one will surely prevail at the hearing” (Fuentes, 407 US at 87). Moreover, greater procedural safeguards are of particular importance where, as here, “the Government has a direct pecuniary interest in the outcome of the proceeding” (James Daniel Good, 510 US at 56).

In addition, even if the County is able to show easily that it had probable cause to believe that the driver of the seized vehicle had been driving while intoxicated, the risk of erroneous deprivation is heightened when the driver is not the owner or sole user of the seized vehicle. Although the Nassau County Police Department has adopted procedures whereby it attempts to limit forfeitures to vehicles not subject to a defense of innocent ownership, the statute itself contains no such limitation. “A statute that authorizes the police to seize property to which the government has not established a legal right or claim, and that on its face contains no limitation of forfeiture liability for innocent owners, raises substantial constitutional concerns” (Krimstock, 306 F3d at 57).

The absence of such a limitation in the challenged Code provision therefore renders the ordinance, as written, unconstitutional on that ground as well (cf. CPLR 1311 [3] [b] [iv] [state forfeiture statute applicable to felonies requires the claiming authority to prove by a preponderance of the evidence that an owner who is not a criminal defendant either “knew that the instrumentality was or would be used in the commission of a crime or . . . knowingly obtained his or her interest in the instrumentality to avoid forfeiture”]). In any event, even were the statute to limit forfeiture liability to seizures of automobiles not involving innocent owners, a hearing would be required to ensure that such innocent owners are not deprived for months or years of cars ultimately proved not to be subject to forfeiture.

The final factor to consider in determining the process that is due is the government’s interest in retaining cars post-seizure and pre-judgment. Of course, retention of an intoxicated driver’s car pending resolution of the forfeiture action advances the public interest in preventing the vehicle from being used for repeated drunk driving. Nevertheless, while retention of a car indeed prevents a defendant from again driving that particular car drunk, it does little to prevent the person from driving another car drunk. The County asserts, though, that—while not a perfect solution as to all defendants—retention of seized vehicles will at least prevent some defendants, who have no access to other cars, from driving while intoxicated. We agree that retention is a rational means of protecting the public from an increased risk of drunk drivers. We hold only that due process requires that the County establish its right to such justifiable retention after affording the defendant an opportunity to be heard.

The County also has an interest in preventing the vehicle from being sold or destroyed before judgment is rendered in a future forfeiture proceeding. Continued retention of the car throughout the pendency of the forfeiture action, however, is not the only means available to accomplish this goal. The County could, for example, require that a defendant post a bond or seek a preliminary injunction or temporary restraining order prohibiting the sale or destruction of the property.

We therefore conclude, after balancing these considerations, that due process requires that a prompt post-seizure retention hearing before a neutral magistrate be afforded, with adequate notice, to all defendants whose cars are seized and held for possible forfeiture. At such a hearing, the County must establish that probable cause existed for the defendant’s initial warrant-less arrest, that it is likely to succeed on the merits of the forfeiture action, and that retention is necessary to preserve the vehide from destruction or sale during the pendency of the proceeding (see Krimstock, 306 F3d at 67).

We note that although no provision for post-seizure hearings is contained in the challenged ordinance, Nassau County has nevertheless been affording such hearings to defendants who affirmatively request them. In County of Nassau v Bigler (2001 NY Slip Op 50144[U] [Sup Ct, Nassau County, Roberto, J.]), Nassau County Supreme Court held, as a matter of due process, that if a defendant affirmatively challenged the adequacy of a forfeiture action, the County could not retain a seized vehicle without moving for and obtaining either summary judgment or a provisional order of attachment pending the conclusion of the action. The court held, however, that, in the absence of any such challenge by the owner, the County had no burden to prove entitlement to the retention of the vehicle. In the wake of Bigler, the County has been routinely affording prompt judicial review to defendants who challenge the pre-conviction seizures of their vehicles.* ** We hold today that due process requires that prompt post-seizure hearings be provided to all defendants whose vehicles are seized and held for forfeiture, not merely those who request them.

Finally, we recognize that the County—in adding provisions to its ordinance during the course of this appeal—has already taken steps to address some of the issues we identify here today. Nevertheless, because the statute suffers from a variety of procedural defects, the County would perhaps be well served by rewriting the ordinance—originally enacted in 1939—in its entirety.

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

Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo and Read concur.

Order affirmed, with costs.

      . A petty offense “means a violation or a traffic infraction” (CPL 1.20 [39]). A traffic infraction, in turn, is defined by Penal Law § 10.00 (2) as any offense defined as “traffic infraction” by section 155 of the Vehicle and Traffic Law, which includes “[t]he violation of any provision of [the Vehicle and Traffic Law] except articles forty-seven and forty-eight [concerning registration of snowmobiles and vessels], or of any law, ordinance, order, rule or regulation regulating traffic which is not declared by [the Vehicle and Traffic Law] or other law of this state to be a misdemeanor or a felony.” A violation “means an offense, other than a ‘traffic infraction,’ for which a sentence to a term of imprisonment in excess of fifteen days cannot be imposed” (Penal Law § 10.00 [3]). A misdemeanor is “an offense, other than a ‘traffic infraction,’ for which a sentence to a term of imprisonment in excess of fifteen days may be imposed, but for which a sentence to a term of imprisonment in excess of one year cannot be imposed” (Penal Law § 10.00 [4]). Finally, an “offense” is “conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state or by any law, local law or ordinance of a political subdivision of this state, or by any order, rule or regulation of any governmental instrumentality authorized by law to adopt the same” (Penal Law § 10.00 [1]).

      . During the course of this appeal, the County added a provision to its Administrative Code explicitly making civil forfeiture available as a sanction for alcohol-related driving offenses. We do not pass upon the amended statute, which also continues the provision now under review.

      . “[D]ue process is afforded only by the kinds of notice and hearing that are aimed at establishing the validity, or at least the probable validity, of the underlying claim” against the defendant before he or she can be deprived of property (Fuentes, 407 US at 97 [citations and internal quotation marks omitted]).

      . In its recent amendment to the forfeiture ordinance, the County codified the rule imposed in Bigler. Specifically, the ordinance now provides that a person from whom property is seized may, within 15 days after mandatory notification that the property is subject to forfeiture, “request review of the probable validity of the continued retention of the property pending the completion of the civil forfeiture proceeding” (Administrative Code § 8-7.0 [g]  [a]). Within 15 days after receipt of such a request for review, the Police Department must either return the property or apply to the court for a prompt hearing (Administrative Code § 8-7.0 [g] [4] [b]).


author: Graffeo, J.

text:
    [802 NE2d 610, 770 NYS2d 271]
    Todd B. Marsh, Individually and on Behalf of all Others Similarly Situated, Appellant, v Prudential Securities Incorporated, Respondent.
    Argued October 15, 2003;
    decided November 24, 2003

      POINTS OF COUNSEL

      Fredric J. Gross Law Firm, Mount Ephraim, New Jersey (Fredric J. Gross, Susan E. Babb and Jacqueline Bittner of counsel), and Crowley & Crowley, Morristown, New Jersey (Noel C. Crowley and Michael C. Crowley of counsel), for appellant.
    To effectuate its remedial purpose, Labor Law § 193’s general rule against wage withholding must be liberally construed, while enumerated exemptions must be strictly construed. (D’Amato v Morgan Stanley Dean Witter Discover & Co., 268 AD2d 392; Hall v United Parcel Serv. of Am., 76 NY2d 27; Weiner v Diebold Group, 173 AD2d 166; Matter of Hudacs v Frito-Lay, Inc., 90 NY2d 342; Jacobs v Macy’s E., 262 AD2d 607; Edlitz v Nipkow & Kobelt, 264 AD2d 437; Matter of La France, 173 AD2d 989; Matter of Brookdale Hosp. Ctr. Tenants Assn. v Goldman, 99 AD2d 702; Greenwald v Chiarella, 271 App Div 213; Tuttle v Geo. McQuesten Co., 227 AD2d 754.)

      Cahill Gordon & Reindel LLP, New York City (Thomas J. Kavaler, Nicholas S. Goldin and Tammy L. Roy of counsel), for respondent.
    I. As a threshold matter, elections to enroll in MasterShare are not subject to Labor Law § 193 because there is no “deduction” from already earned wages. (Truelove v Northeast Capital & Advisory, 95 NY2d 220; Engstrom v Kinney Sys., 241 AD2d 420; Matter of Dean Witter Reynolds v Ross, 75 AD2d 373; Matter of Hudacs v Frito-Lay, Inc., 90 NY2d 342.) II. In any event, the text of Labor Law § 193 (1) (b) expressly authorizes voluntary written elections to enroll in MasterShare. (Leader v Maroney, Ponzini & Spencer, 97 NY2d 95; Criscione v City of New York, 97 NY2d 152; Matter of Sutka v Conners, 73 NY2d 395; Apfel v Prudential-Bache Sec., 81 NY2d 470; Rownd v New York State Guernsey Breeders’ Coop., 194 Misc 701; Sanders v Winship, 57 NY2d 391; People v Gaskins, 171 AD2d 272; Williams v Taylor, 529 US 362; Matter of Rodriguez v Perales, 86 NY2d 361; Cohen v Lord, Day & Lord, 75 NY2d 95.) III. The surrounding circumstances underscore the validity of voluntary written elections to participate in MasterShare. (Ferres v City of New Rochelle, 68 NY2d 446; Matter of Sutka v Conners, 73 NY2d 395; Matter of Hudacs v Frito-Lay, Inc., 90 NY2d 342; Greenwald v Chiarella, 271 App Div 213; Matter of Theurer [Trustees of Columbia Univ. in City of N.Y.—Ross], 59 AD2d 196; Arbegast v Board of Educ., 65 NY2d 161; B & F Bldg. Corp. v Liebig, 76 NY2d 689; Matter of Caroline, 218 AD2d 388; People v Keyes, 141 AD2d 227; Weiner v Diebold Group, 173 AD2d 166.) IV None of MasterShare’s other structural features vitiates the legality of voluntary written elections to participate in the plan. (Rownd v New York State Guernsey Breeders’ Coop., 194 Misc 701; Hall v United Parcel Serv. of Am., 76 NY2d 27; Kristt v Whelan, 4 AD2d 195, 5 NY2d 807; D'Amato v Morgan Stanley Dean Witter Discover & Co., 268 AD2d 392; Cray v Nationwide Mut. Ins. Co., 136 F Supp 2d 171; Diakoff v American Re-Insurance Co., 492 F Supp 1115; International Bus. Machs. Corp. v Martson, 37 F Supp 2d 613.) V None of the other issues pending in the Third Circuit has been certified to this Court or bears on the certified question of pure New York labor law. (Tunick v Safir, 94 NY2d 709.)

      Eliot Spitzer, Attorney General, New York City (Seth Kupferberg, Caitlin Halligan, Daniel Smirlock and M. Patricia Smith of counsel), for New York State Commissioner of Labor, amicus curiae.
    I. Labor Law § 193 prohibits deductions that may be forfeited to the employer. (Matter of Hudacs v Frito-Lay, Inc., 90 NY2d 342; New York Cent. & Hudson Riv. R.R. Co. v Williams, 199 NY 108, affd sub nom. Erie R.R. Co. v Williams, 233 US 685; Greenwald v Chiarella, 271 App Div 213; Hughes Aircraft Co. v Jacobson, 525 US 432; Lockheed Corp. v Spink, 517 US 882; Weiner v Diebold Group, 173 AD2d 166; Watson v Prentice-Hall, Inc., 50 AD2d 1077; Matter of Wright Metal, 257 App Div 453, 283 NY 47.) II. The Department of Labor’s interpretation of Labor Law § 193 further establishes the impermissibility of deductions that may be forfeited. (Public Loan Co. v Hyde, 47 NY2d 182; DiLucia v Mandelker, 110 AD2d 260, 68 NY2d 844; Matter of Memorial Hosp. v Axelrod, 68 NY2d 958; Rownd v New York State Guernsey Breeders’ Coop., 194 Misc 701; Matter of Hudacs v Frito-Lay, Inc., 90 NY2d 342; Truelove v Northeast Capital & Advisory, 95 NY2d 220; Matter of Dean Witter Reynolds v Ross, 75 AD2d 373; Hall v United Parcel Serv. of Am., 76 NY2d 27; D’Amato v Morgan Stanley Dean Witter Discover & Co., 268 AD2d 392; Cray v Nationwide Mut. Ins. Co., 136 F Supp 2d 171.) III. Prudential’s predictions of dire consequences if deductions under its plan are found illegal are illusory.

      Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York City (Brad S. Karp, Daniel J. Toal and Daniel R. Garodnick of counsel), for Securities Industry Association, amicus curiae.
    I. Incentive compensation does not constitute “wages” within the meaning of New York’s Labor Law and may be subject to forfeiture consistent with the governing compensation agreements. (Engstrom v Kinney Sys., 241 AD2d 420; Truelove v Northeast Capital & Advisory, 95 NY2d 220; International Bus. Machs. Corp. v Martson, 37 F Supp 2d 613; Rosenberg v Salomon, Inc., 992 F Supp 513; International Paper Co. v Suwyn, 978 F Supp 506; Canet v Gooch Ware Travelstead, 917 F Supp 969; Tischmann v ITT/Sheraton Corp., 882 F Supp 1358, 145 F3d 561, 525 US 963; Matter of Dean Witter Reynolds v Ross, 75 AD2d 373; Hall v United Parcel Serv. of Am., 76 NY2d 27; RKO-Keith-Orpheum Theatres v City of New York, 308 NY 493.) II. Prospective agreements concerning compensation cannot effect a deduction from “wages” and therefore are not subject to Labor Law § 193. (Engstrom v Kinney Sys., 241 AD2d 420; Hanlon v Macfadden Publs., 302 NY 502; Matter of Hudacs v Frito-Lay, Inc., 90 NY2d 342.) III. In all events, even deductions from wages for restricted stock programs like MasterShare would be permissible under section 193 of the Labor Law because such deductions are for the benefit of the employee.
   OPINION OF THE COURT

Graffeo, J.

Defendant Prudential Securities Incorporated offers an optional investment benefit to a special class of its employees— financial advisors—that is designed to defer taxes on a portion of their income. Periodic contributions from the earnings of these employees are used to purchase shares in a public stock index fund. The question in this case, certified to us by the United States Court of Appeals for the Third Circuit, is whether this plan violates New York Labor Law § 193. We conclude that it does not.

In 1999, Prudential offered its professional financial advisors the opportunity to participate in a new investment program referred to as the MasterShare Plan. There are two primary benefits for employees who opt into the Plan—deferral of income taxes and the ability to purchase shares of a stock index fund at a substantial discount. An employee elects to join the Plan by executing an irrevocable written authorization for Prudential to deduct between 5% and 25% of the employee’s gross pay for one calendar year for Plan purposes. The deduction authorization remains in effect for subsequent years unless the employee cancels it or changes the amount of earnings to be deducted during the annual enrollment period.

The withheld compensation is placed in a “deferral account” for up to three months, during which time the employee surrenders control over the funds and receives no interest. At the end of the deferral period, the accumulated funds in the account are used to purchase Class Z shares of the Prudential Stock Index Fund, a public mutual fund, which mirrors the performance of the Standard & Poor’s 500 stock index. The price of shares is the average of the month-end value for an index fund share during the three-month deferral period, with a 25% discount provided by Prudential. The purchased shares are then transferred to the employee’s MasterShare account, where they must remain for at least three years.

Although the employee is the beneficial owner of the shares, and therefore has the right to dividends and to participate in shareholder votes, the employee is unable to transfer or sell any shares during this time frame. In addition, the Plan provides that if an employee decides to discontinue employment with Prudential or is terminated for cause during the three-year period, the entire balance of the employee’s MasterShare account is forfeited to Prudential. On expiration of the three-year period, the participant can renew the account or cash in the shares and pay income taxes on the proceeds.

Plaintiff was employed by Prudential as a securities broker for almost two decades. He chose to participate in the Plan and authorized Prudential to withhold the maximum 25% deduction from his gross earnings. In December 2000, Prudential terminated his employment due to an alleged loss of confidence in his investment activities, which “were deemed in retrospect by [customers] to have entailed an unacceptable degree of risk.” Prudential then acquired all of the holdings in plaintiffs MasterShare account—approximately $165,000—of which about $145,000 was attributable to plaintiffs contributions. The balanee of the proceeds in the account represented Prudential’s contributions to the share purchases.

Plaintiff, a New Jersey resident, initiated a proposed class action against Prudential in a New Jersey state court but Prudential removed the case to Federal District Court. In his amended complaint in District Court, plaintiff asserted 10 causes of action, one of which claimed that the MasterShare Plan was illegal because New York Labor Law § 193 does not permit wage deductions to be invested in index funds. He further contended that the Plan’s initial, three-month deferral period, as well as its forfeiture provision, violate the statute’s “benefit of the employee” requirement. Prudential moved to dismiss the Labor Law § 193 claim and both parties sought summary judgment.

The District Court granted Prudential’s motion for summary judgment and dismissed the New York Labor Law cause of action. The court determined that a payroll deduction that is invested in stock is similar to the deductions that are enumerated in Labor Law § 193 (1) (b) because the investment program benefits the employee and the withholdings provide the employee with favorable income tax consequences. The court further explained that the forfeiture provision does not violate the statute’s requirement that deductions must be “for the benefit of the employee.”

The United States Court of Appeals for the Third Circuit, finding no definitive judicial interpretation of Labor Law § 193, and noting that the decision could affect a number of similar employee investment plans, certified the following question to this Court:

“Whether New York Labor Law § 193 permits an employer, with an employee’s written and informed authorization, to enable that employee to defer wage taxes by making wage deductions and denying the employee any interest in those deducted wages for three months, and then investing the deducted wages in Standard & Poor’s 500-mirroring index fund shares that, while beneficially owned by the employee, are temporarily non-transferable and forfeitable to the employer if the employee quits or is terminated for cause.”

We accepted certification (99 NY2d 624 [2003]) and now answer that question in the affirmative.

Labor Law § 193 permits an employer to deduct a portion of an employee’s wages if the deduction is “expressly authorized” by and “for the benefit of the employee” (Labor Law § 193 [1] [b]). The statute authorizes specific categories of wage with-holdings that an employee may consent to: “payments for insurance premiums, pension or health and welfare benefits, contributions to charitable organizations, payments for United States bonds, payments for dues or assessments to a labor organization, and similar payments for the benefit of the employee” (id.).

Plaintiff argues that the Plan violates this provision because the payroll deduction here is not solely for the benefit of a participating employee and is not sufficiently “similar” to the types of withholdings that are approved in section 193. He further contends that the Plan does not qualify under the statute because the initial, three-month deferral period amounts to an interest-free loan to Prudential and the forfeiture provision operates exclusively for the benefit of the employer.

Prudential counters that the Plan is comparable to wage deductions used to fund pension plans or the purchase of United States bonds. Prudential views the “freeze” period as an administrative necessity that, like the forfeiture provision, is required in order to gain the favorable income tax benefits available under Internal Revenue Code (26 USC) § 83. Asserting that all aspects of the Plan must be evaluated in considering whether it is designed “for the benefit of the employee,” Prudential asserts that the mere inclusion of a forfeiture clause does not equate to a per se violation of the statute.

Our first task is to determine whether MasterShare payments are “similar” to the various types of deductions that are specifically authorized by Labor Law § 193 (1) (b), an issue that cannot be resolved without considering the history of that provision. The statute was derived from former sections 10-13 of the Labor Law (L 1909, ch 36, §§ 10-13), which required employers to “fullfy] and promptly]” pay earned wages (Matter of Hudacs v Frito-Lay, Inc., 90 NY2d 342, 347 [1997]). That mandate was interpreted as a prohibition against compelled wage deductions that were subject to forfeiture in the event of resignation by the employee without proper notice to the employer (see 1913 Ops Atty Gen [vol 2] 165, 167). Former sections 10-13 were eventually recodified, and outlawed the transfer of “future wages” (Labor Law former §§ 195-197, as added by L 1921, ch 50) in a statutory scheme that was intended to “prohibit! ] deductions from wages for the benefit of the employer” (Matter of Hudacs, 90 NY2d at 347). The 1921 statutes were interpreted by the Attorney General to draw a distinction between deductions that benefit the employer {see 1930 Ops Atty Gen 399, 399-400) and voluntary deductions for investment purposes where the employee can withdraw the savings at any time {see 1930 Ops Atty Gen 402; 48 St Dept Rep 414, 416 [1933]).

During recodification of the Labor Law in 1966, a new section 193 was added, in language identical to the current statute in all relevant respects (L 1966, ch 548, § 2). It required that deductions be made “for the benefit of the employee,” and limited permissible deductions to payments for insurance premiums, pension plans, health and welfare benefits, charitable contributions, union dues, the purchase of United States bonds and “similar payments for the benefit of the employee” (Labor Law § 193 [1] [b]).

The legislative history of the 1966 statute demonstrates that this provision was intended to codify opinions issued by the Attorney General regarding wage deductions {see Mem of Dept of Labor, Off of Indus Commr, Bill Jacket, L 1966, ch 548, at 4). At the time of enactment, the Attorney General had long determined that the Labor Law did not prohibit “voluntary [wage] deductions” for “an employees’ stock buying plan” (1930 Ops Atty Gen 402; see 48 St Dept Rep 416). Furthermore, the agency charged with oversight—the Department of Labor—recognized that the phrase “similar payments” encompassed wage deductions for investments {see 1974 Ops Commr Labor, Inf Op to EF Hutton & Co. Inc. [June 18, 1974]).

Against this historical backdrop—most especially the legislative authorization of deductions for pensions and bonds, and the absence of any evidence that the Legislature intended to restrict employees from voluntarily investing a portion of their wages—we conclude that Labor Law § 193 allows employees to divert part of their earnings into investment plans.

We now turn to plaintiffs argument that the Plan does not satisfy section 193’s “benefit of the employee” provision because the possibility of forfeiture and the deferral period serve only Prudential’s interests. Plaintiff urges us to declare the Plan invalid because an employee’s accumulated withholdings, purchased shares and any growth in value may be subject to forfeiture if an employee resigns or is terminated for cause. Although we have approved of similar “golden handcuffs” arrangements in the past, in those situations the forfeited funds were in the nature of incentive compensation—such as a bonus—which category of compensation is not included in the definition of “wages” under Labor Law § 190 (1) (see e.g. Truelove v Northeast Capital & Advisory, 95 NY2d 220, 224 [2000]). That term is defined, in part, as “the earnings of an employee for labor or services rendered, regardless of whether the amount of earnings is determined on a time, piece, commission or other basis” (Labor Law § 190 [1]). Here, despite the assertion of Prudential and amicus Securities Industries Association that such investment contributions are not deductions from wages, it is clear that plaintiff authorized periodic withholdings from his compensation to finance the eventual purchase of fund shares.

Plaintiff, joined by the Commissioner of Labor, advocates that this Court adopt a per se rule that the possibility of forfeiture violates Labor Law § 193 (1) (b). But this would preclude courts from assessing the purpose of a forfeiture provision—i.e., whether it was intended solely to penalize workers or was designed to provide an investment vehicle with tax-deferral benefits to its employees and concomitantly encourage employee longevity. Although the provision in this case is clearly a “golden handcuff,” nothing in the record before us suggests that employee participation was induced by purposeful misrepresentations regarding the purported tax benefits of the Plan. Rather than adopt a per se rule, we believe that whether a wage deduction for investment is “for the benefit of the employee” can be determined only by examining the investment plan in its entirety, giving due weight to the existence of a forfeiture provision.

As a threshold matter, we must assess whether the affected employee received appropriate notice of potential forfeiture. The Plan documents in this case include numerous warnings that forfeiture could occur. In fact, a section of the Plan contract is prominently entitled “Termination of Employment.” This provision unequivocally explains that if a participant quits or is fired for “Cause” (as that term is defined in the document) before the expiration of the three-year restricted period, the employee “forfeit[s] all amounts then credited to [the] Deferral Account and/or MasterShare Account. Such forfeited amounts will revert to Prudential Securities.” Thus, the Plan documents contain full disclosure of the possibility of forfeiture and plaintiff voluntarily opted to participate, taking the maximum payroll deduction.

Also relevant to our inquiry is the type of employees who participate and the nature of the benefit conferred by the investment program. In this case, the MasterShare Plan was offered only to a segment of Prudential’s work force with significant knowledge and expertise in assessing investment risks. Sophisticated financial advisors such as plaintiff could reasonably believe that the benefits and potential rewards of Plan participation outweighed the likelihood of loss for several reasons. The Plan purports to provide an immediate benefit by allowing eligible employees to defer taxes on the compensation that is withheld. In addition, once the monies in a deferral account are used to purchase index fund shares at a discount, an employee becomes the beneficial owner of the shares, and is entitled to receive any dividends and exercise shareholder voting rights during the three-year restricted period. Because the Plan confers these benefits on a participant even before the non-transferability period elapses, providing the opportunity for financial growth in an account, it is readily distinguishable from wage deductions and forfeitures designed to benefit the employer alone (see e.g. Edlitz v Nipkow & Kobelt, 264 AD2d 437 [2d Dept 1999]; Jacobs v Macy’s E., 262 AD2d 607 [2d Dept 1999]; Tuttle v Geo. McQuesten Co., 227 AD2d 754 [3d Dept 1996]; 12 NYCRR 142-2.10 [a] [l]-[3] [prohibiting deductions for “spoilage or breakage” and “cash shortages or losses,” as well as “fines or penalties for lateness, misconduct or quitting by an employee without notice”]). Hence, the disclosed risks do not negate the multiple benefits that these knowledgeable employees receive from their voluntary participation in the program, such as the opportunity to invest in securities, the ability to purchase shares at a substantial discount, the deferral of income taxes on compensation and the beneficial rights of stock ownership.

Nor are those benefits negated by the three-month deferral period. Although plaintiff correctly notes that Prudential is free to use the funds in a deferral account during that time, income taxes on the diverted compensation are immediately deferred. Furthermore, the employee receives a 25% price discount at the end of the deferral period, which is effectively a one-third matching contribution from the employer on the average index share price over the period of deferral.

After examining the MasterShare Plan in its totality—the manner in which it functions, its governing documents, the immediate benefits and potential rewards of participation weighed against the risk of loss, the purposes of the forfeiture provision, the clarity of the notice that forfeiture was possible and the voluntariness of plaintiffs decision to participate—we conclude that the possibility of forfeiture on these facts does not warrant ineligibility under section 193. The wage deductions directed into the investment plan in this case qualify as “payments for the benefit of the employee,” which are “similar” to the types of wage withholdings specifically authorized by the statute (Labor Law § 193 [1] [b]). The Plan, therefore, does not violate Labor Law § 193 (1).

Plaintiffs remaining arguments fall outside the scope of the issue the Third Circuit certified to this Court.

Accordingly, the certified question should be answered in the affirmative.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt and Read concur.

Following certification of a question by the United States Court of Appeals for the Third Circuit and acceptance of the question by this Court pursuant to section 500.17 of the Rules of the Court of Appeals (22 NYCRR 500.17), and after hearing argument by counsel for the parties and consideration of the briefs and the record submitted, certified question answered in the affirmative.

      . Documentation submitted by Prudential to the Securities and Exchange Commission indicates that plaintiff was permitted to resign. The parties appear to agree, however, that his employment was involuntarily terminated, although plaintiff disputes that his dismissal was justified. This issue is not before us.

      . Plaintiff seeks to recover only his personal contributions to the account, not the additional value attributable to the 25% discount on the purchase price of the fund shares provided by Prudential.

      . The New York statute is implicated because the Plan documents state that “[t]he Plan shall be governed by, and construed and enforced in accordance with the substantive and procedural laws of the State of New York.”

      . The Plan documents advised employees that “it is anticipated that a Participant generally will not be subject to income tax on amounts deferred under the Plan . . . unless and until Shares are distributed to [the employee] free of restrictions, at which time the [value] of the Shares would be taxable as ordinary income.”

      . Prudential’s motion to dismiss and cross motion for summary judgment in the District Court, to the extent they appear in the record, do not raise this issue. Moreover, the District Court did not address the “wages” issue; the court analyzed only two other arguments that Prudential now asserts— whether MasterShare deductions are similar to the categories of payments that are specifically listed in Labor Law § 193 (1) (b) and whether the Plan is not for “the benefit of the employee” because of the potential for forfeiture of the account funds. Before the Third Circuit, Prudential characterized the Plan as a “pre-tax wages” investment opportunity. Based on these assertions, the certified question presumes that the income here qualifies as “wages” under the Labor Law. We also presume the income is “wages” and do not address that issue on this appeal.

      . Plaintiff alleges that his compensation during the final year of employment was the highest of his career, having generated over $400,000 in commissions.

      . Plan documents indicate that it was structured to satisfy the requirements of section 83 of the Internal Revenue Code in order to provide employees with a voluntary tax-deferral investment program. Because of the Third Circuit’s formulation of the certified question, it is unnecessary for us to decide whether that Plan actually complies with the requirements of that statute, nor would it be appropriate for us to address this federal tax law issue.

      . Although the Department of Labor has informally opined that a plan like MasterShare violates Labor Law § 193 (1) because of the risk of forfeiture, that conclusion was based on the presumption that a per se rule exists and the belief that the only benefit a participant receives is the discount on the purchase price of the securities (see 2002 Ops Commr Labor, Inf Op to Jonathan E Arfa, at 3 [Aug. 29, 2002]). This stance appears to conflict with other departmental opinions that approve of wage deductions despite the possibility that the withheld funds could be forfeited (see 1991 Ops Commr Labor, Inf Op to Beverly Gross, at 1-2 [July 24, 1991]).