author: Chief Judge Kaye. G.B. Smith, J. (dissenting).

text:
    [825 NE2d 121, 791 NYS2d 880]
    Joseph Campbell, Appellant, v City of New York, Respondent, et al., Defendants.
    Argued January 12, 2005;
    decided February 17, 2005

      POINTS OF COUNSEL

      John R. Kelligrew, White Plains, for appellant.
    CPLR 204 (a) applies to a state law cause of action brought in New York Federal District Court against municipalities for personal injury when the Federal District Court declines to exercise pendent jurisdiction over the state law claim. (Kleinberger v Town of Sharon, 116 AD2d 367; Smith v Rensselaer County, 52 AD2d 384; Yonkers Contr. Co. v Port Auth. Trans-Hudson Corp., 93 NY2d 375; Glamm v City of Amsterdam, 94 Misc 2d 991, 67 AD2d 1056, 49 NY2d 714; McGill v Board of Educ., 59 AD2d 888; Corbett v Fayetteville-Manlius Cent. School Dist., 34 AD2d 379; Hurd v Allegany County, 39 AD2d 499; Abbatemarco v Town of Brookhaven, 26 AD2d 664.)

      Michael A. Cardozo, Corporation Counsel, New York City (Mordecai Newman and Larry A. Sonnenshein of counsel), for respondent.
    I. By its own terms, as well as under the controlling authority of this Court, the time limitation of one year and 90 days contained in General Municipal Law § 50-i is a condition precedent to suit. This Court has held that a condition precedent that incorporates a time limitation is not subject to the toll and time extension provided by CPLR 205 (a). (Pierson v City of New York, 56 NY2d 950; Brennan v City of New York, 88 AD2d 871; Blanco v American Tel. & Tel. Co., 90 NY2d 757; Yonkers Contr. Co. v Port Auth. Trans-Hudson Corp., 93 NY2d 375; Alston v State of New York, 97 NY2d 159; Romano v Romano, 19 NY2d 444; Hill v Board of Supervisors, 119 NY 344.) II. The unqualified terms in which the District Court stated its dismissal of the entirety of plaintiffs action indicate that the action, including the state claims, was dismissed with prejudice. The dismissal is, thus, properly deemed a “final judgment upon the merits” as to which CPLR 205 (a) has no application. (Baylis v Marriott Corp., 843 F2d 658; Yonkers Contr. Co. v Port Auth. Trans-Hudson Corp., 93 NY2d 375.)
   OPINION OF THE COURT

Chief Judge Kaye.

The issue before us is whether the year-and-90-day period contained in General Municipal Law § 50-i is a statute of limitations (to which the tolling provision of CPLR 205 [a] applies) or a condition precedent to suit (which is a substantive limitation on the right to sue). We agree with plaintiff that section 50-i sets forth a statute of limitations, not a condition precedent.

On December 17, 1997, plaintiff was a wheelchair-bound passenger in a City of New York-owned van driven by a city corrections officer. According to plaintiff, his wheelchair was not correctly restrained in the van and, as the driver turned at the intersection of 161st Street and the Grand Concourse in the Bronx, plaintiff fell over, further injuring an already fractured leg. On or about March 17, 1998, plaintiff served a notice of claim on the City (General Municipal Law § 50-e). In a complaint dated December 16, 1998; plaintiff brought an action in the United States District Court for the Southern District of New York pursuant to 42 USC § 1983 seeking money damages for the alleged violation of his constitutional rights under the Eighth and Fourteenth Amendments to the United States Constitution. On April 8, 2002, the court granted summary judgment to the City, dismissing the federal claims for failure to exhaust administrative remedies; the court declined to exercise pendent jurisdiction over plaintiffs state law claims.

By summons and complaint served on or about July 10, 2002, plaintiff commenced the instant personal injury action in State Supreme Court against the City and the officers involved in the incident. The City moved to dismiss the complaint on the ground that the action was time-barred under General Municipal Law § 50-i (1) (c), which provides that no personal injury action shall be maintained against the City unless the action is “commenced within one year and ninety days after the happening of the event upon which the claim is based.” Specifically, the City maintained that section 50-i is a condition precedent to suit, not a statute of limitations subject to the tolling provision of CPLR 205 (a), which states:

“(a) New action by plaintiff. If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff . . . may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action.”

In opposition, plaintiff asserted that the tolling provision of CPLR 205 (a) applied to section 50-i and that his action was not time-barred. Supreme Court granted the City’s motion, relying on our decision in Yonkers Contr. Co. v Port Auth. Trans-Hudson Corp. (93 NY2d 375 [1999]), and the Appellate Division affirmed. We now reverse.

Discussion

This Court has consistently treated the year-and-90-day provision contained in section 50-i as a statute of limitations (see e.g. Cohen v Pearl Riv. Union Free School Dist., 51 NY2d 256, 259 [1980] [section 50-i “has generally been regarded as a Statute of Limitations subject to the tolls . . . provided in CPLR 208”]; Pierson v City of New York, 56 NY2d 950, 954-955 [1982] [labeling the year-and-90-day period of section 50-i a “Statute of Limitations” and concluding that a notice of claim must be filed before statute of limitations expires, “unless the statute has been tolled”]; Giblin v Nassau County Med. Ctr., 61 NY2d 67, 69 [1984] [concluding that section 50-i’s “Statute of Limitations for municipal tort liability is tolled” under CPLR 204 when the plaintiff seeks permission to file a late notice of claim]).

In Baez v New York City Health & Hosps. Corp. (80 NY2d 571, 576 [1992]), we observed that at the time plaintiff executor’s wrongful death cause of action commenced, “[a] one-year and 90-day Statute of Limitations period . . . applied to actions commenced against employees of municipal defendants or public corporations (General Municipal Law § 50-i).” More recently, in Henry v City of New York (94 NY2d 275 [1999]), we considered whether an infant’s action against the City was time-barred when the infant (through a parent) timely filed a notice of claim pursuant to General Municipal Law § 50-e, but failed to commence the action within the year-and-90-day period of section 50-i. We held that CPLR 208 tolled the statute of limitations for the period of infancy and that the infant’s suit was not time-barred, thus again treating the year-and-90-day requirement of section 50-i as a statute of limitations subject to CPLR article 2 tolling.

The City presents no valid reason for departing from this consistent precedent.

Mistakenly relying on Yonkers Contr. Co. v Port Auth. Trans-Hudson Corp. (93 NY2d 375 [1999]), the City maintains that the year-and-90-day limitation in section 50-i constitutes a waiver of sovereign immunity. In Yonkers, we addressed whether the requirement for bringing an action against the Port Authority within one year under McKinney’s Unconsolidated Laws of NY § 7107 (L 1950, ch 301, § 7) was a condition precedent to suit or a statute of limitations. In concluding that the statute contained a condition precedent to suit, we observed that section 7107 was a single enactment of the Legislature both consenting to suits against the Port Authority and incorporating a timeliness requirement as “an integral part of its waiver of sovereign immunity” (93 NY2d at 379). We underscored that if a statute not only creates a cause of action but also attaches a time limitation to its commencement, then “time is an ingredient of the cause” (id., quoting Romano v Romano, 19 NY2d 444, 447 [1967]) and its limitation is a condition precedent to the maintenance of the suit. In section 7107, the Legislature explicitly stated that a suit against the Port Authority could go forward only “upon the condition [that it] be commenced within one year” (McKinney’s Uncons Laws of NY § 7107 [emphasis added]).

The express terms of section 50-i and its legislative background are distinctly different. Nowhere in section 50-i does the term “condition” appear. Rather, the section states that “[n]o action or special proceeding shall be prosecuted or maintained against a city . . . unless . . . the action or special proceeding shall be commenced within one year and ninety days after the happening of the event upon which the claim is based.”

Nor, in the case of actions against the City, was there a single enactment consenting to suit and incorporating a time limitation as an integral part of a waiver of sovereign immunity. As we recognized in Florence v Goldberg (44 NY2d 189, 194-195 [1978]), when the State of New York waived its sovereign immunity in 1929, its subdivisions, including the City, also lost their protection from suit. While the State placed time limitations on suits against itself, it did not likewise set forth time limitations for suits against municipalities (see Court of Claims Act § 10). It was not until 1959 that the Legislature evinced its intent to make uniform the provisions for commencing actions against municipalities by enacting section 50-i (see La Fave v Town of Franklin, 20 AD2d 738 [3d Dept 1964] [citing Governor’s Approval Mem, 1959 NY Legis Ann, at 458]). Thus, there is no evidence that the Legislature intended the year-and-90day provision of section 50-i as a condition precedent to suit.

Accordingly, the order of the Appellate Division should be reversed, with costs, and defendant City of New York’s motion to dismiss denied.

G.B. Smith, J. (dissenting).

Because I believe that the time period of one year and 90 days for bringing an action, contained in General Municipal Law § 50-i, is a condition precedent and not a statute of limitations in this case, I dissent.

On December 17, 1997, plaintiff, an inmate in the custody of the New York City Department of Correction, who was suffering from a broken leg, was being transported in a wheelchair in a van. Plaintiff claims that the wheelchair “flipped over” because he was not properly secured, causing him to fall and be injured. Pursuant to General Municipal Law § 50-e, plaintiff filed a timely notice of claim on the City on March 19, 1998.

On March 5, 1999, plaintiff filed a federal action in the Southern District of New York pursuant to 42 USC § 1983 claiming violations of his Eighth and Fourteenth Amendment rights. The federal action was dismissed on April 8, 2002 for failure to exhaust administrative remedies pursuant to 42 USC § 1997e (a). After dismissing the federal questions, federal court declined to assert pendent jurisdiction over the state law claims.

On July 22, 2002, plaintiff filed a state court action against the City. On October 21, 2002, the City filed an answer and on October 28, 2002, the City moved to dismiss pursuant to CPLR 3211 (a) (7).

Supreme Court, on December 13, 2002, granted the motion to dismiss. Supreme Court reasoned that because the action against the City was not brought “within one year and ninety days” after the filing of the notice of claim against the City, it was barred and the statute of limitations could not be tolled because CPLR 205 (a) “could not be used to obviate the requirements of a statutory condition precedent to suit.”

On March 2, 2004, Appellate Division affirmed the order of Supreme Court, determining that plaintiff was not helped by CPLR 205 (a) which allowed for a six month tolling of the statute of limitations because General Municipal Law § 50-i was a condition precedent to the suit, not a statute of limitations. This Court granted the plaintiff leave to appeal.

Before this Court, plaintiff argues that General Municipal Law § 50-i, entitled “Presentation of tort claims; commencement of actions,” is a statute of limitations which was tolled pursuant to CPLR 205 (a). Defendant City argues, on the other hand, that General Municipal Law § 50-i is a condition precedent for filing a suit against the City.

In Yonkers Contr. Co. v Port Auth. Trans-Hudson Corp. (93 NY2d 375, 378 [1999]), this Court held that the one year time period for commencing a lawsuit against the Port Authority, contained in McKinney’s Unconsolidated Laws of NY § 7107 (L 1950, ch 301, § 7), was a condition precedent that could not be tolled by CPLR 205. Section 7107 reads:

“The foregoing consent is granted upon the condition that any suit, action or proceeding prosecuted or maintained under this act shall be commenced within one year after the cause of action therefor shall have accrued, and upon the further condition that in the case of any suit, action or proceeding for the recovery or payment of money, prosecuted or maintained under this act, a notice of claim shall have been served upon the port authority by or on behalf of the plaintiff or plaintiffs at least sixty days before such suit, action or proceeding is commenced. The provisions of this section shall not apply to claims arising out of provisions of any workmen’s compensation law of either state.”

In Yonkers, this Court distinguished between a statute of limitations and a statutory time restriction for commencing a lawsuit. There, this Court stated, “The former merely suspends the remedy provided by a right of action, but the latter conditions the existence of a right of action, thereby creating a substantive limitation on the right” (93 NY2d at 378). This Court determined that the time in which to sue was a condition for bringing the lawsuit.

The statute at issue in this case, General Municipal Law § 50-i, is similar to section 7107 in that it also establishes a time condition for bringing a lawsuit. Section 50-i, first enacted in 1959 (L 1959, ch 788, § 1), now reads as follows:

“1. No action or special proceeding shall be prosecuted or maintained against a city . . . unless, (a) a notice of claim shall have been made and served upon the city ... in compliance with section fifty-e of this chapter, (b) it shall appear by and as an allegation in the complaint or moving papers that at least thirty days have elapsed since the service of such notice and that adjustment or payment thereof has been neglected or refused, and (c) the action or special proceeding shall be commenced within one year and ninety days after the happening of the event upon which the claim is based ....
“2. This section shall be applicable notwithstanding any inconsistent provisions of law, general, special or local, or any limitation contained in the provisions of any city charter.
“3. Nothing contained herein or in section fifty-h of this chapter shall operate to extend the period limited by subdivision one of this section for the commencement of an action or special proceeding.”

The statute establishes three requirements for a lawsuit—a notice of claim that complies with General Municipal Law § 50-e, a time lapse of at least 30 days following service of the notice of claim and a lawsuit brought within one year and 90 days after the claim arises. Put another way, if any one of these three requirements is not met, an action or special proceeding sounding in tort cannot be prosecuted or maintained against a city. A reading of General Municipal Law § 50-i, which is written in the conjunctive, that seeks to sever the one-year-and 90-day time period from the other two express statutory requirements, fails to give effect to the entire statute, in direct contravention to one of the most basic rules of statutory construction. Thus, because section 50-i, on its face, creates a time condition for bringing an action, similar in purpose and function to the time condition in Unconsolidated Laws § 7107, CPLR 205 (a) is inapplicable here.

The legislative history supports this interpretation of General Municipal Law § 50-i.

In an April 10, 1959 letter “Re: Assembly Int. 4048, Print No. 4218” from Thomas McCoy, Counsel to the Judicial Conference of the State of New York, to Roswell B. Perkins, Counsel to Governor Rockefeller, recommending approval of the bill, the following statement is made:

“Section 50-i would bar suits against cities, counties, towns or villages based upon negligent acts of their employees unless, one, notice of claim is made under § 50-e; two, thirty days have elapsed since service of notice without settlement, and three, the section is commenced within one year and ninety days after the event upon which the claim is based.” (Bill Jacket, L 1959, ch 788.)

In a March 30, 1959 “Memorandum in relation to Assembly Bill Int. 4048, Pr. 4218,” William Sanford, Counsel to the Association of Towns, described the legislation in this way:

“This legislation would add a new section to the General Municipal Law to be known as section 50-i, which would require as a condition precedent to the prosecution or maintenance of an action against a city, county, town or village for personal injuries or property damage [ ] that notice of claim be made and filed pursuant to section 50-e of the General Municipal Law, that it be alleged that at least 30 days have elapsed since the service of such notice and no adjustment or payment has been arrived at, and that the action was commenced within one year and 90 days from the happening of the event upon which the claim is based. It is further provided that these restrictions shall be applicable notwithstanding any inconsistent provision of law, general, special or local” {id. [emphasis supplied]).

In an April 16, 1959 letter to Roswell B. Perkins, “Re: A. Int. 4048, Pr. 4218-Approved; Comment,” Sheldon Oliensis, Chairman of the Committee on State Legislation of the Association of the Bar of the City of New York, commented:

“Furthermore, we are concerned that Paragraph 3 may act as a trap for the unwary. Under the present practice, at least in New York City, the parties frequently stipulate to an extension of time for the completion of the City’s examination of the claim; such stipulations have heretofore not prejudiced the plaintiff because Section 50 (h) of the General Municipal Law and Section 24 of the Civil Practice Act interact to toll the period of limitations. This tolling will now be eliminated” (id. [emphasis supplied]).

The words “herein or” contained in section 50-i (3), cited above, were added by chapter 151 of the Laws of 1960. A footnote to chapter 151 states, “This bill is recommended by the Joint Legislative Committee on Municipal Tort Liability. Its purpose is to make it clear that the period within which actions and special proceedings against municipalities are required to be brought is not intended to be tolled or extended by reason of its provisions.”

The cases cited by the majority do not compel a different result. Cohen v Pearl Riv. Union Free School Dist. (51 NY2d 256 [1980]) and Henry v City of New York (94 NY2d 275 [1999]) involved infancy and the tolling provision of CPLR 208. Baez v New York City Health & Hosps. Corp. (80 NY2d 571 [1992]) also involved an argument for the infancy toll of CPLR 208, an argument which this Court rejected. In Pierson v City of New York (56 NY2d 950 [1982]), this Court held that an application to file a late notice of claim could not be made after the statute of limitations had run. It also stated that the notice of claim could not be served after one year and 90 days after the cause of action accrued, unless tolled, and cited Cohen v Pearl Riv. Union Free School Dist. (51 NY2d at 262-263), a case with an infancy toll.

CPLR 205 (a) authorizes a new action within six months after an action, which is timely commenced, is terminated other than “by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits.” As noted by the Appellate Division, section 205 does not apply when the statutory time bar to the commencement of an action is not a statute of limitations but is a condition precedent (see Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]; Matter of Morris Invs., Inc. v Commissioner of Fin. of City of N.Y., 69 NY2d 933 [1987]).

Accordingly, I dissent and vote to affirm the order of the Appellate Division.

Judges Cipabick, Rosenblatt, Gbaffeo, Read and R.S. Smith concur with Chief Judge Kaye; Judge G.B. Smith dissents and votes to affirm in a separate opinion.

Order reversed, etc.

      . In Baez, the statute could not he tolled, however, because plaintiff, as executor, could have sought appointment as the personal representative for the estate and commenced the wrongful death action—the CPLR 208 infancy toll did not apply because the infant distributees could not “commence the action.” (80 NY2d at 577.)

      . By contrast, the notice of claim requirement contained in section 50-i (1) (a) directs parties to General Municipal Law § 50-e, which treats a notice of claim as a condition precedent (see e.g. O’Brien v City of Syracuse, 54 NY2d 353, 358 [1981]).

      . Since section 50-i conditions a lawsuit against the City upon the meeting of three requirements, it is clear that the absence of the word “condition” is not determinative as to whether one exists.

      . CPLR 205 (a):
      “New action by plaintiff. If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff, or, if the plaintiff dies, and the cause of action survives, his or her executor or administrator, may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period.”


source: Caselaw Access Project

author: Rosenblatt, J.

license: Public Domain

text:
    [825 NE2d 117, 791 NYS2d 876]
    Quantum Corporate Funding, Ltd., Respondent, v Westway Industries, Inc., Defendant, and United States Fidelity and Guaranty Company, Appellant.
    Argued January 11, 2005;
    decided February 17, 2005

      POINTS OF COUNSEL

      Westermann Hamilton Sheehy Aydelott & Keenan, LLP, Garden City (David Westermann, Jr. of counsel), for appellant.
    I. The language of State Finance Law § 137 controls—assignees are excluded. (Mowczan v Bacon, 92 NY2d 281; Riley v County of Broome, 95 NY2d 455; Specialty Prods. & Insulation Co. v St. Paul Fire & Mar. Ins. Co., 99 NY2d 459; Chittenden Lbr. Co. v Silberblatt & Lasker, 288 NY 396; Tri-State Empl. Servs. v Mountbatten Sur. Co., 99 NY2d 476; People v Backus, 117 NY 196; Uvalde Asphalt Paving Co. v City of New York, 191 NY 244; Davis Acoustical Corp. v Hanover Ins. Co., 22 AD2d 843; Windsor Metal Fabrications v General Acc. Ins. Co. of Am., 94 NY2d 124; Jackson v Citizens Cas. Co. of N.Y., 277 NY 385.) II. There is a conflict between Quantum Corporate Funding v Fidelity & Deposit Co. of Md. (258 AD2d 376 [1999]) and Quantum Corporate Funding v Westway Indus. (303 AD2d 483 [2003]). (People ex rel. Makin v Wilkins, 22 AD2d 497; Specialty Prods. & Insulation Co. v St. Paul Fire & Mar. Ins. Co., 99 NY2d 459; Chittenden Lbr. Co. v Silberblatt & Lasker, 288 NY 396; Aquilino v United States, 10 NY2d 271; Canron Corp. v City of New York, 214 AD2d 115.) III. State Finance Law § 137 bond rights are not commercial collateral. (Messersmith v American Fid. Co., 232 NY 161; Jackson v Citizens Cas. Co. of N.Y., 277 NY 385.)

      Hancock & Estabrook, LLP, Syracuse (Stewart F. Hancock, Jr.
      and Alan J. Pierce of counsel), for respondent.
    I. State Finance Law § 137 should not be construed as precluding the right of an assignee of a subcontractor to proceed against the surety; a contrary holding would effectively curtail the rights of subcontractors to obtain financing by assigning their accounts receivable. (Matter of Mittleman, 282 App Div 587; Chittenden Lbr. Co. v Silberblatt & Lasker, 288 NY 396; City Bank Farmers’ Trust Co. v New York Cent. R.R. Co., 253 NY 49; Stillman v Northrup, 109 NY 473; Claflin v Ostrom, 54 NY 581; Craig v Parkis, 40 NY 181; Transit Commn. v Long Is. R.R. Co., 253 NY 345; Goncalves v Regent Intl. Hotels, 58 NY2d 206; Parker v Hoefer, 2 NY2d 612; Bertles v Nunan, 92 NY 152.) II. United States Fidelity and Guaranty Company’s arguments that State Finance Law § 137 payment bonds should not be assignable are without merit. (Speciality Prods. & Insulation Co. v St. Paul Fire & Mar. Ins. Co., 99 NY2d 459; United States for Benefit of Sherman v Carter, 353 US 210; Wolther v New Hampshire Fire Ins. Co., 173 F Supp 529; Orinoco Realty Co. v Bandler, 233 NY 24; R.J. Russo Trucking & Excavating v Pennsylvania Resource Sys., 169 AD2d 239; Dutchess Quarry & Supply Co. v Firemen’s Ins. Co., 190 AD2d 36; Scaccia Concrete Corp. v Hartford Fire Ins. Co., 212 AD2d 225.)

      Wolff & Samson PC, New York City (Adam P. Friedman of counsel), for Surety Association of America, amicus curiae.
    A lender-assignee is not a proper claimant against the labor and material payment bond mandated by State Finance Law § 137. (Caristo Constr. Corp. v Diners Fin. Corp., 21 NY2d 507; Brewster Shirt Corp. v Commissioner of Internal Revenue, 159 F2d 227; GMAC Commercial Credit LLC v Springs Indus., Inc., 171 F Supp 2d 209; American Blower Corp. v James Talcott, Inc., 18 Misc 2d 1031,11 AD2d 654,10 NY2d 282; Tri-State Empl. Servs. v Mountbatten Sur. Co., 99 NY2d 476; Leader v Maroney, Ponzini & Spencer, 97 NY2d 95; People v Mobil Oil Corp., 48 NY2d 192; United States v Munsey Trust Co., 332 US 234; Dutchess Quarry & Supply Co. v Firemen’s Ins. Co., 190 AD2d 36; Specialty Prods. & Insulation Co. v St. Paul Fire & Mar. Ins. Co., 287 AD2d 852, 99 NY2d 459.)

      Goetz Fitzpatrick LLP, New York City (Bernard Kobroff of counsel), for Subcontractors Trade Association, Inc., amicus curiae.
    An assignee of a proper claimant on a labor and material payment bond required by State Finance Law § 137 is itself a proper claimant. (Chittenden Lbr. Co. v Silberblatt & Lasker, 288 NY 396; Matter of Asman v Ambach, 64 NY2d 989; Triangle

      Erectors v James King & Son, 41 Misc 2d 12; United States for Benefit of Sherman v Carter, 353 US 210; Caristo Constr. Corp. v Diners Fin. Corp., 21 NY2d 507; American Blower Corp. v James Talcott, Inc., 10 NY2d 282; Tri-State Empl. Servs. v Mountbatten Sur. Co., 99 NY2d 476; Tri-City Elec. Co. v People, 96 AD2d 146, 63 NY2d 969; R.J. Russo Trucking & Excavating v Pennsylvania Resource Sys., 169 AD2d 239; Specialty Prods. & Insulation Co. v St. Paul Fire & Mar. Ins. Co., 99 NY2d 459.)

      . We are comforted in this conclusion by the continued successful functioning of public works and the surety market in those jurisdictions that have maintained long-standing rules allowing for assignments. For example, the federal analogue to our section 137, 40 USC § 270a et seq. (now 40 USC § 3131 et seq.), allows for assignment of subcontractors’ claims (see United States for Benefit of Sherman v Carter, 353 US 210 [1957]), as do the statutory analogues of our sister states (see e.g., Shoshoni Lbr. Co v Fidelity & Deposit Co. of Md., 46 Wyo 241, 24 P2d 690 [1933]; Finch v Enke, 54 SD 164, 222 NW 657 [1929]).

   OPINION OF THE COURT

Rosenblatt, J.

We hold today that State Finance Law § 137 allows subcontractors’ assignees to recover payment from bond sureties. The statute requires general contractors on public works projects to purchase payment bonds, which work like insurance policies designed to guarantee payment to the general contractors’ suppliers, employees and subcontractors. The statute is silent, however, on who may sue on the bond. In our view, section 137 should be read to allow suit by the subcontractor’s assignee.

L

Atlas Concrete Cutting LLC served as a subcontractor for Westway Industries, Inc., a general contractor hired to complete various public works projects in Westchester and Queens counties. After completing the work, Atlas sold its accounts receivable at a substantial discount to Quantum Corporate Funding, Ltd., for cash up front. Westway then failed to pay its debts and went out of business. To recover on Atlas’s claims, Quantum pursued United States Fidelity and Guaranty Company (Guaranty), the surety for the section 137 payment bonds that West-way had purchased.

After Guaranty refused to honor Quantum’s demands for the payments due to Atlas, Quantum brought suit in Supreme Court and obtained a default judgment against Westway, establishing that Atlas’s invoices to Westway were proper and payable. Supreme Court, however, granted Guaranty’s motion for summary judgment, dismissing Quantum’s claims under section 137 against Guaranty in reliance on the Appellate Division, First Department’s holding that the subcontractor’s right to recover on payment bonds is nonassignable (see Quantum Corporate Funding v Fidelity & Deposit Co. of Md., 258 AD2d 376 [1st Dept 1999]).

On appeal, the Appellate Division, Second Department, reversed the dismissal, acknowledging that its holding conflicts with the First Department’s decision in Fidelity. Quantum then won summary judgment in Supreme Court. To resolve the split between Appellate Division departments, we granted Guaranty’s motion for leave to appeal directly to this Court {see CPLR 5602 [a] [1] [ii]). We now affirm.

II

The bonding requirement in State Finance Law § 137 first passed in 1938 to protect laborers and material suppliers from defaulting employers.* An additional purpose was to reduce the cost of state projects by encouraging lower-cost bids from contractors (see Governor’s Counsel’s Mem to Governor, Bill Jacket, L 1938, ch 707, at 3 [“Those (contractors) who do (undertake state work) materially raise their bids in order to allow for outside financing pending the receipt of the state moneys.”]). The bond requirement guarantees that subcontractors will receive payment for their work once they complete the project. That assurance is not always enough. Some subcontractors, often smaller or newer companies, may have difficulty financing their work even before the job is done. For example, a gravel company working on a six-month project might run out of gravel after three months. If it lacked the means to obtain more gravel, the company would be unable to complete its contract obligations. Subcontractors in that position seek to trade their certain right to future payment in exchange for present financing.

Similarly, small subcontractors who have completed projects and await payment may be ill equipped to pursue their payment claims, preferring not to spend limited company resources on the extra paperwork and potential litigation costs connected with such claims. Such companies, like Atlas here, have therefore sold their accounts receivable to factors, companies that specialize in financing and collecting these payments (see Black’s Law Dictionary 630 [8th ed 2004]; see also James J. White, A Symposium on the Code After 25 Years: 1978-2003, Death and Resurrection of Secured Credit, 12 Am Bankr Inst L Rev 139, 153-154 [2004]).

Whether parties may sell an enforceable right to receive payments under bonds required by section 137 is an open question before this Court. In construing the statute, we bear in mind the background principle that claims typically remain transferrable (see General Obligations Law § 13-101 [“Any claim or demand can be transferred . . . .”]; see also Restatement [Second] of Contracts § 317 [2] [setting transferability of rights as the default and outlining narrow exceptions]). As a second guiding principle, we note that the original section 137 and every subsequent amendment were designed to protect workers, material suppliers and subcontractors from the hardship that accompanied the previous instability in the financing of public works (see e.g. Spanos Painting Contrs., Inc. v Union Bldg. & Constr. Corp., 334 F2d 457, 459 [2d Cir 1964] [“The primary purpose of § 137 ... is to provide subcontractors a remedy by which they may recover sums due them where they would have failed under the old, more stringent lien law.”]).

Guaranty argues that, despite the law generally favoring transferability, an exception applies in this case. Guaranty asserts that a subcontractor’s right under Lien Law article 2 (to place a hen on the general contractor’s proceeds) is not assignable, and argues that the same restriction should apply to bonds under section 137. We are not persuaded. As Guaranty and amicus Surety Association of America acknowledge, section 137 is aimed at providing greater protection to laborers, suppliers and subcontractors than the Lien Law. To adopt Guaranty’s analogy would set the statutory beneficiaries back to the financial inflexibility and risk they endured before section 137’s passage.

Guaranty also argues that by explicitly granting labor trustees the right to stand in place of the actual workers, suppliers and subcontractors under section 137 (5) (b),* ** the Legislature intended to make that grant exclusive. The better interpretation is that the clause is the Legislature’s way of allowing parties not directly connected to the project to sue on behalf of the named statutory beneficiaries. If the Legislature wanted to exclude those with merely a financial interest in the work performed from collecting on behalf of the statutory beneficiaries, it would not have expressly allowed labor representatives to sue. The text itself points to this interpretation: by defining what claims are recoverable with the phrase “payable to or on behalf of’ the workers, section 137 (5) (b) explicitly authorizes that some payments will go to parties acting “on behalf of’ the direct statutory beneficiaries.

Guaranty argues that affirmance would not be consistent with the legislative goal of reducing the cost of state projects, because sureties would have to raise the premiums charged for bonds to cover the increased risk. Subcontractors and Quantum counter that sureties set the price of the bond before the general contractor begins work on the project, because having the bond is a prerequisite to hiring the subcontractors. In determining the risk that the bond will be paid out (i.e., that the general contractor will fail to make all necessary payments), the surety evaluates solely the risk posed by the general contractor, not the financial health of the laborers, suppliers and subcontractors. Therefore, the subcontractors assert, whether the eventual claimant turns out to be either Atlas or Quantum makes no difference to the price the surety establishes at the start of the project.

The sureties argue, in effect, that by having to pay out money rightfully due to those who earned it—and who are entitled to it by statute—the sureties will have to raise rates because they are no longer able to keep that money. Given the Legislature’s avowed interest in protecting suppliers, workers and subcontractors, we will not construe the statute in the manner suggested by Guaranty.

Nor do we find merit in Guaranty’s related contention that making sureties liable to factors like Quantum would generally expand the class of claimants, and thereby increase the sureties’ risk of payment on the bonds. For the purpose of making a claim on the bond, the factor stands in the shoes of the subcontractor. Here, Quantum submitted for payment the very same invoices created by Atlas, on Atlas letterhead and authorized by Atlas officials, with the only indication of Quantum’s role being a stamped statement that Atlas had assigned the accounts to Quantum. Quantum seeks no more money than Atlas would have been entitled to, nor could it. Any defenses that Guaranty might have had against Atlas were good against Quantum.

In sum, the only apparent reason Quantum might pose a greater threat to Guaranty than Atlas is that Quantum is more efficient at collecting bill payments than Atlas would have been. The statute does not allow sureties to resist payment merely because some of section 137’s beneficiaries are too economically weak to recover on their deserving and lawful claims against the bonds.

Accordingly, the judgment of Supreme Court appealed from and the order of the Appellate Division brought up for review should be affirmed, with costs.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Graffeo, Read and R.S. Smith concur.

Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs.

      . This is a suit by a factor against a surety, with the subcontractor and general contractor uninvolved. At least one writer has commented on the nature of this party lineup in the context of structured annuities:
      “The attack [on factoring] has not come from the consumer lobby, though criticism of factoring is often (and sometimes deservedly) clothed in the language of consumer protection. Nor has it come primarily from disgruntled sellers, though many have claimed to stand in their shoes. Instead, the attack has come primarily from the insurance industry .... One might reasonably ask why these entities would care, given that their payment obligations would presumably be unaffected by any transfer thereof to a factoring company.” (Adam F. Scales, Against Settlement Factor-

        ing? The Market in Tort Claims Has Arrived, 2002 Wis L Rev 859, 900-901.)

      . In relevant part, section 137 provides the following:
      “1. [The Comptroller or other appropriate public official may] nevertheless require prior to the approval of any [public works] contract a bond guaranteeing prompt payment of moneys due to all persons furnishing labor or materials to the contractor or his subcontractors in the prosecution of the work provided for in such contract. . . .
      “3. Every person who has furnished labor or material, to the contractor or to a subcontractor of the contractor, in the prosecution of the work provided for in the contract and who has not been paid in full therefor before the expiration of a period of ninety days after the day on which the last of the labor was performed or material was furnished by him for which the claim is made, shall have the right to sue on such payment bond in his own name for the amount, or the balance thereof, unpaid at the time of commencement of the action . . .

      . In arguing against the transferability of payment rights, Guaranty attempts to identify its position with increased protection of the statutory beneficiaries. We do not understand, however, how offering subcontractors like Atlas both the substantive benefit and the right to sell that benefit is less protective of them than denying one of those rights. Indeed, the Subcontractors Trade Association, Inc., has argued as amicus that the protected parties would obviously prefer both rights over just one. Guaranty has not shown us that the subcontractors do not know what is best for themselves. Of course, this issue is only one component of our analysis.

      . The statute reads,
      “The expression ‘moneys due to persons furnishing labor to the contractor or his subcontractors’ includes all sums payable to or on behalf of persons furnishing labor to the contractor or his subcontractors, . . . payment of which is required . . .by the contract in connection with which the bond is furnished .... A trustee or other person authorized to collect such payments shall have the right to sue on the payment bond in his own name and subject to the same conditions as if he were the person performing the labor upon which such sums are computed.”


author: R.S. Smith, J.

text:
    [825 NE2d 128, 791 NYS2d 887]
    In the Matter of Thomas Von Essen, as Fire Commissioner of the City of New York, et al., Respondents, v New York City Civil Service Commission, Respondent, and Robert Joel, Appellant.
    Argued January 11, 2005;
    decided February 22, 2005

      POINTS OF COUNSEL

      Sullivan Papain Block McGrath & Cannavo, PC., New York City (Michael N. Block and Stephen C. Glosser of counsel), for appellant.
    The Appellate Division erred as a matter of law in holding that the New York City Civil Service Commission has no subject matter jurisdiction under Civil Service Law § 76 to review a penalty of dismissal imposed by the Fire Commissioner of the City of New York against a firefighter for misconduct where, when viewed within the context of Matter of Montella v Bratton (93 NY2d 424 [1999]): (i) Civil Service Law §§ 75 and 76 authorize such review generally as to all civil servants; and (ii) in contrast to the situation presented when police officers are disciplined under Administrative Code of the City of New York §§ 14-115 and 14-116—which specifically restrict review of disciplinary penalties of police officers to a CPLR article 78 proceeding—Administrative Code § 15-113, governing discipline of New York City firefighters, is silent with regard to the procedure to use to review such penalty decisions. (Elliot v Green Bus Lines, 58 NY2d 76; People v Walker, 81 NY2d 661; Pajak v Pajak, 56 NY2d 394; People v Tychanski, 78 NY2d 909; Matter of Smithwick v Levitt, 154 AD2d 240; People ex rel. Sibley v Sheppard, 54 NY2d 320; Matter of Rockland County Patrolmen’s Benevolent Assn, v Town of Clarkstown, 149 AD2d 516; Matter of Wein v City of New York, 56 NY2d 758; Matter of New York City Dept, of Envtl. Protection v New York City Civ. Serv. Commn., 78 NY2d 318.)

      Michael A. Cardozo, Corporation Counsel, New York City (Julie Steiner and Barry P. Schwartz of counsel), for Thomas Von Essen and another, respondents.
    The Appellate Division majority correctly held that a disciplined firefighter may not appeal to the New York City Civil Service Commission, because the Commission does not have subject matter jurisdiction to review such matters. Rather, a firefighter may only bring a CPLR article 78 proceeding. This Court’s 1999 unanimous decision in Matter of Montella v Bratton (93 NY2d 424 [1999]), which pertained to the identical issue as here but with respect to police officer disciplinary determinations, is dispositive. (Matter of Finegan v Cohen, 275 NY 432; Burke v Kern, 287 NY 203; Matter of City of New York v MacDonald, 201 AD2d 258, 83 NY2d 759; Ferrin v New York State Dept. of Correctional Servs., 71 NY2d 42; Patrolmen’s Benevolent Assn. of City of N.Y. v City of New York, 41 NY2d 205; Rangolan v County of Nassau, 96 NY2d 42; Riley v County of Broome, 95 NY2d 455; People v Brancoccio, 83 NY2d 638; Matter of Tucker v Board of Educ., 82 NY2d 274; Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d 669.)
   OPINION OF THE COURT

R.S. Smith, J.

In Matter of Montella v Bratton (93 NY2d 424 [1999]) we held that uniformed police officers disciplined pursuant to section 14-115 of the Administrative Code of the City of New York could not appeal their discipline to the New York City Civil Service Commission. We hold today that the same rule applies to firefighters disciplined pursuant to section 15-113 of the Administrative Code.

Procedural History

Firefighter Robert Joel was charged with violating Fire Department regulations by calling in two false alarms. At a hearing before an administrative law judge, Joel admitted his guilt and the judge recommended that he be terminated from his position with the department. The Fire Commissioner adopted the recommendation, and ordered termination.

Joel sought to appeal this ruling to the New York City Civil Service Commission. The Civil Service Commission ordered the parties to brief the question of whether it had jurisdiction over the appeal, and after receiving the briefs determined that it did. The Fire Commissioner then filed the present CPLR article 78 proceeding, seeking to annul the Civil Service Commission’s determination. Supreme Court upheld the Civil Service Commission’s jurisdiction, and dismissed the article 78 proceeding. The Appellate Division reversed, holding in a thorough and well-reasoned opinion that Montella was controlling. We agree with the Appellate Division and affirm.

Discussion

The Civil Service Commission claims jurisdiction here pursuant to Civil Service Law § 76 (1), which permits an appeal to that Commission from punishment “imposed pursuant to the provisions of section seventy-five of this chapter.” Thus the dis-positive issue is whether Joel was disciplined pursuant to Civil Service Law § 75, which prescribes certain procedures for the removal or penalizing of civil servants charged with “incompetency or misconduct.”

We held in Montella that Civil Service Law §§ 75 and 76 did not apply to Police Department discipline because we found in provisions of the New York City Charter and Administrative Code a legislative direction that such discipline be left to the discretion of the Police Commissioner, subject only to review by the courts under article 78. Specifically, we relied on NY City Charter § 434 (a), which provides that the Police Commissioner “shall have cognizance and control of the government, administration, disposition and discipline of the department, and of the police force of the department”; and on Administrative Code § 14-115 (a), providing that the Police Commissioner “shall have power, in his or her discretion ... to punish the offending party” in specified ways. Since these provisions were in existence before Civil Service Law §§ 75 and 76 were enacted, and since Civil Service Law § 76 (4) provides that “[n]othing contained in section seventy-five or seventy-six of this chapter shall be construed to repeal or modify any general, special or local law or charter provision relating to the removal or suspension of officers or employees . . . ,” we concluded that the Civil Service Law sections did not affect the Police Commissioner’s power to discipline police officers.

The Charter and Administrative Code provisions applicable to Fire Department discipline closely parallel those on which we relied in Montella. The relevant Charter provision, section 487 (a), is even more strongly worded than NY City Charter § 434 (a). While the latter provision, governing Police Department discipline, refers to “cognizance and control,” section 487 (a) provides that the Fire Commissioner “shall have sole and exclusive power and perform all duties for the government, discipline, management, maintenance and direction of the fire department.” The Administrative Code section governing Fire Department discipline is section 15-113, which uses the same words quoted above from Administrative Code § 14-115. Section 15-113, like its counterpart applicable to the police, says that the Commissioner “shall have power, in his or her discretion ... to punish the offending party.”

Since the Charter and Code provisions governing Fire Department discipline, like those governing Police Department discipline, were in existence before Civil Service Law §§75 and 76 were enacted, the saving clause of Civil Service Law § 76 (4), providing that neither section 75 nor section 76 “shall be construed to repeal or modify” other laws, is applicable here as it was in Montella. Fire Department discipline, like Police Department discipline, is outside the scope of Civil Service Law §§ 75 and 76 and thus not subject to the jurisdiction of the Civil Service Commission.

The Civil Service Commission and Supreme Court found Montella to be distinguishable because in Montella we relied on two provisions of law that have no counterpart here: Civil Service Law § 75 (3-a), which specifically provides that the Police Commissioner “may punish [a] police officer pursuant to the provisions of sections 14-115 and 14-123 of the administrative code of the city of New York,” and Administrative Code § 14-116, which authorizes the bringing of an article 78 proceeding within four months to review discipline imposed by the Police Commissioner. But while section 75 (3-a) and section 14-116 supported our holding in Montella, they were not indispensable to it, for the reasons explained by the Appellate Division opinion in the present case. In Montella, sections 75 (3-a) and 14-116 provided confirmation of what other legislative provisions also made clear: that Police Department discipline was not subject to Civil Service Commission review. Even without corresponding confirmatory evidence, we reach the same conclusion with respect to the Fire Department.

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

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

Order affirmed, with costs.


author: Graffeo, J.

text:
    [825 NE2d 585, 792 NYS2d 370]
    In the Matter of Jeremy W. Alderson, Respondent, v New York State College of Agriculture and Life Sciences at Cornell University et al., Appellants.
    Argued January 11, 2005;
    decided February 17, 2005

      POINTS OF COUNSEL

      James J. Mingle, Ithaca, Nelson E. Roth, Michael G. Kimberly and Patricia A. McClary for appellants.
    I. This Court’s prior decision in Matter of Stoll v New York State Coll, of Veterinary Medicine at Cornell Univ. (94 NY2d 162 [1999]) compels reversal of the lower courts’ rulings. II. The decision in Matter of Stoll v New York State Coll, of Veterinary Medicine at Cornell Univ. (94 NY2d 162 [1999]) should be clarified to require clear legislative intent. (Kimel v Florida Bd. of Regents, 528 US 62; Lugo v Scenic Hudson, 258 AD2d 626; Matter of Knight-Ridder Broadcasting v Greenberg, 70 NY2d 151.)

      LoPinto, Schlather, Solomon & Salk, Ithaca (Diane L. Campbell of counsel), for respondent.
    I. Both the trial court and the Appellate Division properly applied Matter of Stoll v New York State Coll, of Veterinary Medicine at Cornell Univ. (94 NY2d 162 [1999]). (Matter of Citizens for Alternatives to Animal Labs v Board of Trustees of State Univ. of N.Y., 92 NY2d 357; Matter of Buffalo News v Buffalo Enter. Dev. Corp., 84 NY2d 488.) II. The statutory colleges may be construed as agencies pursuant to the Freedom of Information Law. (Matter of Buffalo News v Buffalo Enter. Dev. Corp., 84 NY2d 488; Matter of Mohawk Book Co. v State Univ. of N.Y., 288 AD2d 574; Matter of Encore Coll. Bookstores v Auxiliary Serv. Corp., 87 NY2d 410; Matter of Fink v Lefkowitz, 47 NY2d 567; Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562.) III. The documents requested are disclosable pursuant to the Freedom of Information Law. (Matter of Encore Coll. Bookstores v Auxiliary Serv. Corp., 87 NY2d 410; Matter of Russo v Nassau County Community Coll., 81 NY2d 690; Matter of Mohawk Book Co. v State Univ. of N.Y., 288 AD2d 574; Lugo v Scenic Hudson, 258 AD2d 626; Matter of Knight-Ridder Broadcasting v Greenberg, 70 NY2d 151.)
   OPINION OF THE COURT

Graffeo, J.

Since the 19th century, the State of New York and Cornell University, a private educational institution, have had a unique partnership relating to the provision of higher educational services in the state. Under the Education Law, the University manages four “statutory colleges” that are supported, in part, by public funds. Cornell has significant autonomy over academic activities at the colleges but is accountable to the trustees of the State University of New York (SUNY) and other state agencies for the manner in which public funds are expended.

In Matter of Stoll v New York State Coll, of Veterinary Medicine at Cornell Univ. (94 NY2d 162 [1999]), we addressed whether Cornell University, as administrator and manager of the statutory colleges, was a state agency subject to the Freedom of Information Law (FOIL) (Public Officers Law art 6). We began with the proposition that Cornell University is a private educational institution not ordinarily subject to FOIL. That said, we recognized that there were “public aspects” of Cornell’s role as steward of the statutory colleges implicating the open government policies underlying FOIL. Noting that the Legislature had vested Cornell University with substantial private discretion over the colleges that placed many of its actions beyond state control, we determined that there remained “public aspects” of Cornell’s management function that could, in some circumstances, render Cornell the equivalent of a state agency for purposes of FOIL.

We therefore reviewed the nature of the FOIL request, concluding that where documents requested relate to subject matter over which Cornell exercises statutory authority or control, Cornell is operating in its private capacity and is not mandated to disclose the requested materials. Thus, in Stoll, we held that Cornell was not required to comply with a FOIL request seeking complaints filed under the Cornell University Campus Code of Conduct because the University retained authority, by statute, over disciplinary matters at the statutory colleges. Put another way, because Cornell is responsible for discipline at the statutory colleges, the Court concluded that it was not a state agency subject to FOIL.

In this case, we must again determine whether Cornell University must comply with a FOIL request relating to its management of the statutory colleges. The courts below held that Cornell was a state agency for purposes of an inquiry seeking research and financial documents relating to its management of the New York State College of Agriculture and Life Sciences and the New York State Agricultural Experiment Station. While we agree that some of the document requests appear to relate to Cornell’s receipt of public monies implicating “public aspects” of its management function subject to FOIL, we conclude that others—those involving prospective and ongoing research projects and activities—intruded into matters over which Cornell exercises statutory autonomy in its private capacity.

I.

Petitioner Jeremy W Alderson hosts a talk radio program in Geneva, New York, that addresses political issues of local, regional and national interest. Respondent Cornell University is a private educational institution that operates respondents New York State College of Agriculture and Life Sciences (CALS) and New York State Agricultural Experiment Station, a research institution affiliated with CALS, under the supervision of the trustees of the State University of New York (see Education Law §§ 5712, 5713).

In June and July 2000, petitioner submitted FOIL requests for documents relating to research activities and financial matters involving the Agricultural Experiment Station and a proposed Agricultural Technology Park to be built adjacent thereto. Without differentiating among the types of documents requested, Cornell declined to provide any of the items sought on the ground that it was not a state agency subject to FOIL, relying on Stoll.

Petitioner then commenced this proceeding against CALS, the Station and Cornell, seeking a declaration that they were required to respond to the FOIL requests. On behalf of all three, Cornell moved to dismiss, submitting affidavits from the Associate Director for Research at CALS and the Director of the Office of Sponsored Programs at Cornell University describing the nature of the educational partnership between New York State and Cornell as established in the Education Law. In particular, Cornell noted that it had complete autonomy over research work at CALS and the Station as authorized by Education Law §§ 5712 and 5713 and that the State did not participate in the selection, approval or oversight of research projects at respondent institutions.

Supreme Court denied the motion to dismiss and, after further proceedings, ultimately held that Cornell was required to respond to the FOIL requests because the Agricultural Experiment Station was a state agency in that it had been created to fulfill a “public purpose”—agricultural research. The Appellate Division affirmed and, after an in camera inspection of more than 100 documents on remittal, Supreme Court issued a judgment directing Cornell to turn over most of the requested documents, although some were deemed protected from disclosure under specific FOIL exemptions, such as the trade secret exception (see Public Officers Law § 87 [2] [d]).

Cornell appeals from Supreme Court’s judgment bringing up for review the Appellate Division decision holding that Cornell is a state agency subject to FOIL with respect to each of petitioner’s document demands.

II.

“The Legislature enacted FOIL to provide the public with a means of access to governmental records in order to encourage public awareness and understanding of and participation in government and to discourage official secrecy” (Matter of Newsday, Inc. v Sise, 71 NY2d 146, 150 [1987], cert denied 486 US 1056 [1988]). The statute mandates disclosure of public records by state agencies, defined as “any state or municipal department ... or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature” (Public Officers Law § 86 [3]). “Each agency shall . . . make available for public inspection and copying all records, except that such agency may deny access to records or portions thereof that” fall within one of the enumerated exemptions (Public Officers Law § 87 [2]). Where documents are held by a state agency, they are subject to FOIL regardless of the purpose for which they are generated (see Matter of Citizens for Alternatives to Animal Labs, Inc. v Board of Trustees of State Univ. of N.Y., 92 NY2d 357, 361 [1998]).

Ordinarily, the question whether a record-holder is a state agency is relatively straightforward. For example, we have held that SUNY, a public university, is a state agency subject to FOIL, as are the county community colleges (see Matter of Encore Coll. Bookstores, Inc. v Auxiliary Serv. Corp. of State Univ. of N.Y. at Farmingdale, 87 NY2d 410, 417 [1995]; Matter of Russo v Nassau County Community Coll., 81 NY2d 690 [1993]). However, we recognized in Stoll that the Cornell statutory colleges are a blend of specified private and governmental activities that may not be categorically deemed agencies of the State under FOIL because the Legislature has vested many aspects of their administration to the discretion of a private university. At the same time, the SUNY Trustees and other state agencies have authority to oversee financial issues relating to the expenditure of public funds.

Due to the unique, sui generis nature of the statutory colleges and the blend of public/private activities undertaken by Cornell as it carries out its educational mission, we concluded in Stoll that it was necessary to depart from the general rule that the function to which a document relates is irrelevant under FOIL. We therefore held that the activity underlying the FOIL request is significant in deciding whether Cornell may be deemed a state agency required to disclose documents relating to the statutory colleges. Because the relationship between the State and Cornell is governed by statute, courts must look to the legislative scheme to determine whether the subject matter of the FOIL request involves private matters beyond the reach of the statute or the more public aspects of the statutory colleges which could be subject to FOIL.

The FOIL request at issue in Stoll was submitted by the attorney of a Cornell University professor who had been disciplined by the University for having sexually harassed several female students. Petitioner sought copies of any complaints filed under the University’s Campus Code of Conduct by or against any professor, administrator or student at any of the statutory colleges. All four statutory colleges were named in the request, including CALS, one of the institutions at issue in this case. To resolve whether the documents were subject to FOIL, this Court focused on the activity to which the documents related—the maintenance of discipline at the statutory colleges. The Court then reviewed the statutes defining the State’s relationship with Cornell to determine whether the activity involved a private function committed to Cornell’s discretion or a public matter over which the State had retained some authority or control. Noting that the Legislature had expressly granted Cornell “discretion over the ‘maintenance of discipline’ at the four statutory colleges (see, Education Law § 5711 [2]; § 5712 [2]; § 5714 [3]; § 5715 [6])” (Stoll, 94 NY2d at 167), the Court concluded that the disciplinary records sought related to private matters not subject to disclosure under FOIL.

It is evident from our decision in Stoll that the issue is not, as petitioner suggests, whether the Agricultural Experiment Station or the proposed Agricultural Technology Park are intended to fulfill a public purpose. If it were, we would have held that the disciplinary records requested in Stoll were subject to FOIL, since the statutory colleges named in that case (including CALS) also fulfill significant public purposes. Rather, the proper inquiry is whether the documents requested under FOIL relate to an activity over which Cornell, as manager of the statutory colleges, exercises autonomy and control.

Here, petitioner sought documents or correspondence relating to tenants of the proposed Agricultural Technology Park, current field research tests of genetically modified organism crops being conducted at the Agricultural Experiment Station, compliance by the University with federal research safety protocols for biotechnology (particularly field-testing of genetically modified organisms), and financial reports or records showing the source of all monies received by the Agricultural Experiment Station and its financial status. The document requests therefore fall into two categories: those pertaining to research and other academic activities at the Agricultural Experiment Station and proposed Agricultural Technology Park, and those involving financial records and expenditures or sources of funding.

As to the first category, the courts below erred in concluding the documents were subject to FOIL. Education Law § 5712, the enabling legislation for CALS, provides that Cornell University “shall. . . administer the said college of agriculture and life sciences as to the establishment óf courses of study, the creation of departments and positions, the determination of the number and salaries of members of the faculty and other employees thereof, the appointment and employment thereof, the maintenance of discipline and as to all other matters pertaining to its educational policies, activities and operations, including research work.” (Education Law § 5712 [2].) The statute authorizing the Agricultural Experiment Station, a unit of CALS, similarly denotes that the “station shall be managed, controlled and administered by Cornell university ... in the manner and with the powers provided by [Education Law § 5712]” (Education Law § 5713 [1]).

Consistent with these statutory directives, Cornell’s submissions indicate that the University in fact exercises complete autonomy and control over research and academic activities at the statutory colleges, including CALS and the Agricultural Experiment Station. Neither the SUNY trustees nor any other state agency participate in decisions relating to prospective or ongoing research pursuits. Because Cornell is vested by statute with broad authority over all “matters pertaining to . . . educational policies, activities and operations, including research work” at CALS and the Agricultural Experiment Station, documents relating to those activities involve a private function and are therefore not subject to FOIL.

With respect to petitioner’s request for financial and funding documents, however, we reject Cornell’s argument that it is categorically exempt from FOIL compliance. As we observed in Stoll, Cornell is subject to certain financial reporting requirements to allow state officials to track the expenditure of state funds. Of particular relevance, Education Law § 5712 (4) requires that Cornell submit an annual statement detailing the expenditure of public funds for the operation of CALS. The Legislature did not cede complete control of financial issues to the discretion of Cornell, but has maintained the right to oversee Cornell’s use of public funding in the management of the statutory colleges. To the extent that Cornell is accountable for the expenditure of public funds, it is performing a public function. Documents relating to this activity are subject to FOIL.

Due to the limited nature of respondents’ appeal and the fact that the documents submitted for in camera review are not part of the record before this Court, we are unable to determine which of the produced documents relate to proposed and ongoing research activities, thereby falling within Cornell’s private management sphere and outside the scope of FOIL, and which are financial documents relating to the expenditure of public funds, thereby implicating the “public aspects” of its administration of the statutory colleges. We therefore remit this matter to Supreme Court for review of the documents it ordered respondents to disclose to determine which, if any, relate to the University’s public accounting function such that they are subject to FOIL.

Accordingly, the judgment appealed from and the order of the Appellate Division brought up for review should be modified, without costs, and this matter remitted to Supreme Court for further proceedings in accordance with this opinion and, as so modified, affirmed.

Chief Judge Kaye and Judges G.B. Smith, Cipakick, Rosenblatt, Read and R.S. Smith concur.

Judgment appealed from and order of the Appellate Division brought up for review modified, etc.

      . The University is composed of 18 academic units, four of which are “[statutory or contract colleges” as defined in Education Law § 350 (3), meaning they are “[c]olleges furnishing higher education, operated by independent institutions on behalf of the state pursuant to statute or contractual agreements.” In addition to CALS, Cornell manages the New York State College of Veterinary Medicine, the New York State College of Human Ecology, and the New York State School of Industrial and Labor Relations (see Education Law §§ 5711, 5714, 5715).

      . In the petition filed in December 2000, petitioner alleged that Cornell was considering the development of an Agricultural Technology Park and surmised that creation of the park would require action by the Legislature and the expenditure of public funds. The record does not indicate the present status of the Agricultural Technology Park.

      . The specific documents have not been made part of the record on appeal to this Court.

      . The Legislature has cabined the manner in which some public funds are spent, directing, for example, that Cornell expend federal funds provided for agricultural research in a specific proportion, with nine tenths applied for the use of CALS and one tenth for the use of the Agricultural Experiment Station (see Education Law § 5713 [4]).

      . After its unsuccessful appeal to the Appellate Division, Cornell produced 134 documents for in camera review and Supreme Court applied the FOIL exemptions and issued a judgment directing respondent to turn over particular documents. Petitioner did not appeal from the judgment of Supreme Court and Cornell’s appeal in this Court is limited to challenging the Appellate Division’s categorical determination that it is a state agency subject to FOIL for purposes of each of petitioner’s document requests (see CPLR 5602 [a] [1] [ii]). In other words, although Cornell contended that the documents relating to its research activities were not subject to FOIL (a point with which we agree), neither party has challenged Supreme Court’s application of the FOIL exemptions. Thus, we have no occasion to address it.


author: Read, J.

text:
    [825 NE2d 590, 792 NYS2d 375]
    Douglas Boles et al., Plaintiffs, v Dormer Giant, Inc., Doing Business as Dormers Are Us, Defendant and Third-Party Plaintiff-Appellant. Personal Touch Home Improvements, Inc., Third-Party Defendant-Respondent.
    Argued January 11, 2005;
    decided February 22, 2005

      POINTS OF COUNSEL

      Baxter & Smith, P.C., Jericho (Sim R. Shapiro and Robert C. Baxter of counsel), for third-party plaintiff-appellant.
    I. Since third-party defendant-respondent did not purchase workers’ compensation insurance for its employee, Douglas Boles, it is not entitled to the benefit of the statutory bar of third-party actions pursuant to Workers’ Compensation Law § 11. (Castro v United Container Mach. Group, 96 NY2d 398; Dole v Dow Chem. Co., 30 NY2d 143; Barbieri v Mount Sinai Hosp., 264 AD2d 1.) II. Since the court of original jurisdiction for the determination of the employer-employee relationship is the Workers’ Compensation Board, this matter should be remanded to the Workers’ Compensation Board for the purpose of determining whether Douglas Boles was an employee or independent contractor of Personal Touch Home Improvements, Inc. (Botwinick v Ogden, 59 NY2d 909; Calhoun v Big Apple Wrecking Corp., 162 AD2d 574; Decavallas v Pappantoniou, 300 AD2d 617; O’Rourke v Long, 41 NY2d 219; Matter of Wint v Hotel Waldorf Astoria, 251 AD2d 696; Karakaya v Better Energy Group, 201 AD2d 419; Oro v General Motors Corp., 277 AD2d 437.)

      Shayne, Docks, Stanisci, Corker & Sauer, Mineola (Norman H. Dachs of counsel), for third-party defendant-respondent.
    I. The statutory exemption is applicable notwithstanding Personal Touch Home Improvement, Inc.’s failure to purchase workers’ compensation coverage. (American Tr. Ins. Co. v Sartor, 3 NY3d 71; Matter of Chemical Specialties Mfrs. Assn. v Jorling, 85 NY2d 382; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; Dole v Dow Chem. Co., 30 NY2d 143; Lawrence Constr. Corp. v State of New York, 293 NY 634; Desiderio v Ochs, 100 NY2d 159; Pajak v Pajak, 56 NY2d 394; Bay Shore Family Partners v Foundation of Jewish Philanthropies of Jewish Fedn. of Greater Fort Lauderdale, 239 AD2d 373; Todisco v Econopouly, 155 AD2d 441; People v Chapman, 69 NY2d 497.) II. The issue of plaintiffs status was properly determined by the lower courts in this action and should not be reviewed by this Court. (Scheemaker v State of New York, 70 NY2d 985; Murray v City of New York, 43 NY2d 400; Shine v Duncan Petroleum Transp., 60 NY2d 22; Levine v State of New York, 105 AD2d 289; O’Rourke v Long, 41 NY2d 219; Botwinick v Ogden, 59 NY2d 909; Matter of Hertz Corp. [Commissioner of Labor], 2 NY3d 733; Laverne v Incorporated Vil. of Laurel Hollow, 18 NY2d 635; Sabato v New York Life Ins. Co., 259 AD2d 535; Long v Danforth Co., 236 AD2d 781.)
   OPINION OF THE COURT

Read, J.

Workers’ Compensation Law § 11 limits an employer’s liability to third parties for contribution or indemnity to those cases of workplace injury where its employee has suffered a grave injury. This appeal calls upon us to decide whether section 11 shields an employer that has failed to secure workers’ compensation for its injured employee. For the reasons that follow, we conclude that such an employer does not enjoy the protection from third-party liability afforded by section 11.

I.

On April 5, 2001, plaintiff Douglas Boles was installing vinyl siding on a two-story one-family house when the scaffold on which he was standing collapsed, causing him to fall eight feet to the ground and suffer a crush injury of his right foot with multiple fractures, ankle dislocation and related nerve damage. The homeowners on whose house plaintiff was installing the siding had hired the Dormer Giant, Inc., doing business as Dormers Are Us, as their general contractor for this remodeling project. Dormer Giant subcontracted the siding work to Personal Touch Home Improvements, Inc., and plaintiff was working for Personal Touch at the time of his accident.

Plaintiff, with his wife suing derivatively, commenced a personal injury action against Dormer Giant, the general contractor. Dormer Giant, in turn, brought a third-party action against the subcontractor, Personal Touch, seeking, among other things, common-law indemnification and contribution. When plaintiff moved for partial summary judgment on liability under Labor Law § 240 (1), Personal Touch cross-moved against Dormer Giant for summary judgment to dismiss the third-party complaint on the basis that Dormer Giant’s claim for common-law indemnification and contribution was barred by Workers’ Compensation Law § 11. Dormer Giant opposed the motion, arguing that section 11 did not apply because plaintiff was a self-employed, independent contractor, not an employee of Personal Touch; or, alternatively, that section 11 did not bar the third-party action because Personal Touch had failed to secure workers’ compensation for plaintiff.

Supreme Court granted plaintiff’s motion for partial summary judgment “to the extent that it shall be deemed resolved that [Dormer Giant’s] violation of Labor Law [§] 240 (1) was the sole proximate cause of plaintiff’s fall”; and granted Personal Touch’s cross motion for summary judgment dismissing the third-party complaint. The trial court held that there was “no real question but that plaintiff was an employee of [Personal Touch] and [Dormer Giant’s] claims are barred by [section 11].”

On appeal, Dormer Giant argued that plaintiff was not an employee of Personal Touch or, alternatively, that the question of whether he was an employee should have been determined initially by the Workers’ Compensation Board, not the courts; and that, in any event, plaintiff’s use of a makeshift scaffold was the sole proximate cause of his fall. Dormer Giant also again contended that Personal Touch should not benefit from the protection of section 11 of the Workers’ Compensation Law because it did not secure workers’ compensation for plaintiff.

The Appellate Division affirmed (5 AD3d 417 [2d Dept 2004]), concluding that Dormer Giant had failed to raise a triable issue of fact as to its liability under the Labor Law; that Personal Touch was plaintiffs employer; and that plaintiff did not sustain a “grave injury” within the meaning of Workers’ Compensation Law § 11. Opining that the “statutozy bar [under section 11], unlike the bar on personal injury actions by employees, is not affected by the failure of Personal Touch to secure the payment of workers’ compensation for [plaintiff]” (id. at 418-419), the Appellate Division affirmed Supreme Court’s dismissal of Dormer Giant’s third-party complaint against Personal Touch. We granted Dormer Giant’s motion for leave to appeal the dismissal, and now reverse.

II.

Section 10 (1) of the Workers’ Compensation Law provides that “[e]very employer subject to this chapter shall . . . secure compensation to his employees and pay or provide compensation for their disability or death from injury arising out of and in the course of the employment without regard to fault as a cause of the injury . . . .”

Section 11, entitled “Alternative Remedy,” is composed of several undesignated paragraphs, the first of which specifies that

“[t]he liability of an employer prescribed by [section 10] shall be exclusive and in place of any other liability whatsoever, to such employee ... or any person otherwise entitled to recover damages, contribution or indemnity. . . except that if an employer fails to secure the payment of compensation for his or her injured employees and their dependents as provided in section fifty of this chapter, an injured employee . . . may, at his or her option, elect to claim compensation under this chapter, or to maintain an action in the courts for damages on account of such injury ...” (emphasis added).

This provision derives from section 11 in the original Workers’ Compensation Law enacted in 1913 (see L 1913, ch 816; see also L 1922, ch 615). The emphasized wording has changed hardly at all and its substance has remained unchanged in the ensuing decades.

The third paragraph of section 11 was enacted in 1996 as part of the Omnibus Workers’ Compensation Reform Act. This paragraph provides that “[a]n employer shall not be liable for contribution or indemnity to any third person based upon liability for injuries sustained by an employee acting within the scope of his or her employment,” unless the employee suffered a “grave injury” as defined by the statute.

Personal Touch emphasizes that the first paragraph of section 11 expressly authorizes an injured employee to sue an employer that fails to secure workers’ compensation. Pointing out that this is the singular so-called “exception” in section 11, Personal Touch reasons that the Legislature did not similarly intend to condition an employer’s immunity from third-party liability on the securing of workers’ compensation. Dormer Giant takes the position that an employer may not benefit from section ll’s protections against third-party liability unless it first complies with section 10 and secures workers’ compensation for its employees. We agree with Dormer Giant.

Long after the Workers’ Compensation Law was originally enacted, we decided Dole v Dow Chem. Co. (30 NY2d 143 [1972]), which recognized the right of a third party to seek contribution or indemnity from an employer for its employees’ on-the-job injuries. In adopting the third paragraph of section 11 in 1996, the Legislature sought to reduce employers’ insurance premiums by restricting such third-party suits to those situations where the employee suffered a “grave injury” (see Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 584-585 [1998]). As we observed in Castro v United Container Mach. Group (96 NY2d 398, 401-402 [2001], quoting Governor’s Mem approving L 1996, ch 635, 1996 NY Legis Ann at 460), the 1996 legislation was the result of a conscious deal struck between labor and management: “[T]he bill restores the basis of the bargain between business and labor—that workers obtain necessary medical care benefits and compensation for workplace injuries regardless of fault while employers obtain a degree of economic protection from devastating lawsuits.” Indeed, “[t]he central component of the reform initiative was relief in the form of immunization from tort liability to employers . . . who provide workers’ compensation coverage” (Castro, 96 NY2d at 401 [emphasis added]).

In view of the deal struck between labor and management in 1996 and the Legislature’s desire to revive the statute’s original purpose, we read the term “[a]n employer” in the third paragraph of section 11 to mean employers that comply with section 10 and secure workers’ compensation for their employees. This is consistent with the first paragraph of section 11, which conditions an employer’s protection from employee lawsuits—the employer’s only potential tort exposure for an employee’s workplace injuries prior to Dole—on the securing of workers’ compensation for its employees.

Under Personal Touch’s reading of the statute, an employer would have had exposure to third-party liability under Dole when workers’ compensation was not secured for the injured employee, and the 1996 legislation freed the noncompliant employer from such tort liability. This proposition makes no sense. Employers that do not secure workers’ compensation for their employees are not holding up their end of the bargain between business and labor that undergirds section 11. The Legislature cannot have intended to extend the statute’s heavily negotiated protections from third-party liability to scofflaws, which would be unfair to law-abiding employers and might discourage compliance with section 10.

Accordingly, the order of the Appellate Division should be reversed, with costs, and third-party defendant Personal Touch’s motion for summary judgment dismissing the third-party complaint should be denied.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Graffeo and R.S. Smith concur; Judge Rosenblatt taking no part.

Order reversed, etc.

      . Because Dormer Giant did not raise this alternative argument until its brief in the Appellate Division, it is unpreserved for our review (see Parkin v Cornell Univ., 78 NY2d 523, 530-531 [1991]; McMillan v State of New York, 72 NY2d 871 [1988]).

      . Section 50 specifies three options for an employer to provide for payment of workers’ compensation benefits to its employees: a workers’ compensation insurance policy purchased from an insurance company authorized by the Superintendent of Insurance to provide this coverage; a policy purchased from the State Insurance Fund; and self-insurance as authorized by the Chair of the Workers’ Compensation Board.


author: Chief Judge Kaye.

text:
    [825 NE2d 1081, 792 NYS2d 887]
    The People of the State of New York, Respondent, v Randolfo Catu, Appellant.
    Argued February 15, 2005;
    decided March 24, 2005

      POINTS OF COUNSEL

      Kevin J. Keating, Garden City, and Laurie S. Hershey for appellant.
    I. As mandatory postrelease supervision is a direct consequence of a guilty plea, the absence of any advisement that the plea subjected appellant to this five-year term of supervision—with the possibility of significant further incarceration— violated appellant’s due process rights. Further, the harmless error doctrine should have no application to the failure to advise defendants of significant direct consequences of their pleas. (North Carolina v Alford, 400 US 25; Boykin v Alabama, 395 US 238; People v Ford, 86 NY2d 397; Brady v United States, 397 US 742; People v Loudenslager, 2 AD3d 1220; People v Grose, 2 AD3d 1211; People v Hamilton, 6 AD3d 979; Ferguson v United States, 513 F2d 1011; People v Selikoff, 35 NY2d 227, 419 US 1122; Santobello v New York, 404 US 257.) II. Trial counsel was ineffective in failing to inform appellant about postrelease supervision before he entered his guilty plea. (Hill v Lockhart, 474 US 52; McMann v Richardson, 397 US 759; United States v Gordon, 156 F3d 376; People v Butler, 94 AD2d 726; Ventura v Meachum, 957 F2d 1048; Nelson v Callahan, 721 F2d 397; Strickland v Washington, 466 US 668; People v Benevento, 91 NY2d 708; People v Baldi, 54 NY2d 137.)

      Robert M. Morgenthau, District Attorney, New York City (Beth Fisch Cohen and Donald J. Siewert of counsel), for respondent.
    I. Defendant’s guilty plea was knowing and voluntary, notwithstanding the absence of specific information about postrelease supervision. The motion to vacate judgment was properly denied since defendant failed to establish that he would have proceeded to trial had he been informed about the supervision. (People v Ford, 86 NY2d 397; People v Harris, 61 NY2d 9; Boykin v Alabama, 395 US 238; North Carolina v Alford, 400 US 25; People v Fiumefreddo, 82 NY2d 536; People v Latham, 90 NY2d 795; People v Kingston, 246 AD2d 316; People v Mitchell, 121 AD2d 403; People v Edwards, 96 AD2d 610; People v Sirianni, 89 AD2d 775.) II. Defendant received effective assistance of counsel with regard to his guilty plea. (Strickland v Washington, 466 US 668; People v McDonald, 1 NY3d 109; Hill v Lockhart, 474 US 52; People v Henry, 95 NY2d 563; People v Benevento, 91 NY2d 708;
      People v Baldi, 54 NY2d 137; People v Ford, 86 NY2d 397; Ventura v Meachum, 957 F2d 1048.)
   OPINION OF THE COURT

Chief Judge Kaye.

Indicted for robbery in the second degree, feloniously operating a motor vehicle while under the influence of alcohol and related charges, defendant pleaded guilty to attempted robbery in the second degree and operating a motor vehicle while under the influence of alcohol, as a felony, in exchange for an aggregate determinate sentence of three years in state prison and a $1,000 fine. Because defendant was a second felony offender, his sentence included a mandatory period of five years’ postrelease supervision, of which he was not advised by the court. We conclude that this failure to advise defendant of a direct consequence of his conviction requires that his plea be vacated.

While a trial court has no obligation to explain to defendants who plead guilty the possibility that collateral consequences may attach to their criminal convictions, the court must advise a defendant of the direct consequences of the plea (see People v Ford, 86 NY2d 397 [1995]). Collateral consequences “are peculiar to the individual and generally result from the actions taken by agencies the court does not control” (id. at 403). A direct consequence “is one which has a definite, immediate and largely automatic effect on defendant’s punishment” (id.).

Postrelease supervision is a direct consequence of a criminal conviction. In eliminating parole for all violent felony offenders in 1998, the Legislature enacted a scheme of determinate sentencing to be followed by periods of mandatory postrelease supervision (see L 1998, ch 1 [Jenna’s Law]), and defined each determinate sentence to “also include[ ], as a part thereof, an additional period of post-release supervision” (Penal Law § 70.45 [1]; see also Senate Mem in Support, 1998 McKinney’s Session Laws of NY, at 1489 [describing postrelease supervision as “a distinct but integral part of the determinate sentence”]). Whereas the term of supervision to be imposed may vary depending on the degree of the crime and the defendant’s criminal record (see Penal Law § 70.45 [2]), imposition of supervision is mandatory and thus “has a definite, immediate and largely automatic effect on defendant’s punishment.”

“A trial court has the constitutional duty to ensure that a defendant, before pleading guilty, has a full understanding of what the plea connotes and its consequences” (Ford, 86 NY2d at 402-403 [citations omitted]). Although the court is not required to engage in any particular litany when allocuting the defendant, “due process requires that the record must be clear that the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant” (id. at 403 [citations and internal quotation marks omitted]).

Postrelease supervision is significant. Upon release from the underlying term of imprisonment, a defendant must be furnished with a written statement setting forth the conditions of postrelease supervision in sufficient detail to provide for the defendant’s conduct and supervision (see Penal Law § 70.45 [3]). In addition to supervision by and reporting to a parole officer, postrelease supervision may require compliance with any conditions to which a parolee may be subject (see id.), including, for example, a curfew, restrictions on travel, and substance abuse testing and treatment. Moreover, postrelease supervision may require up to six months of participation in a residential treatment facility immediately following release from the underlying term of imprisonment (see id.; Correction Law § 2 [6]). A violation of a condition of postrelease supervision can result in reincarceration for at least six months and up to the balance of the remaining supervision period, not to exceed five years (see Penal Law § 70.45 [1]).

Because a defendant pleading guilty to a determinate sentence must be aware of the postrelease supervision component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action, the failure of a court to advise of postrelease supervision requires reversal of the conviction. The refusal of the trial court and Appellate Division to vacate defendant’s plea on the ground that he did not establish that he would have declined to plead guilty had he known of the postrelease supervision was therefore error (see also People v Coles, 62 NY2d 908, 910 [1984] [“harmless error rules were designed to review trial verdicts and are difficult to apply to guilty pleas”]).

In light of this result, we do not reach defendant’s alternative claim of ineffective assistance of counsel.

Accordingly, the order of the Appellate Division should be reversed and the case remitted to Supreme Court for further proceedings in accordance with this opinion.

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

Order reversed, etc.