author: Read, J.

text:
    [872 NE2d 236, 840 NYS2d 550]
    In the Matter of the Estate of Margaret M. Tomeck, Deceased. Edward M. Tomeck, as Executor of Margaret M. Tomeck, Deceased, Respondent-Appellant; Robert Christopher, as Commissioner of Social Services of Saratoga County, Appellant-Respondent, et al., Respondent.
    Argued May 31, 2007;
    decided June 28, 2007

      POINTS OF COUNSEL

      Mark M. Rider, County Attorney, Ballston Spa (Hugh G. Burke of counsel), for appellant-respondent.
    I. The Appellate Division erred in failing to find a case of fraud by the community spouse. (Commissioner of Dept. of Social Servs. of City of N.Y. v Spellman, 243 AD2d 45; Matter of Klink, 278 AD2d 883; Calvanese v Calvanese, 93 NY2d 111; Commissioner of Dept. of Social Servs. of City of N.Y. v Fishman, 280 AD2d 396; Vanderbilt Credit Corp. v Chase Manhattan Bank, 100 AD2d 544; State of New York v Coyle, 171 AD2d 288; Case v Fargnoli, 182 Misc 2d 996.) II. The estate is in violation of section 273 of the Debtor and Creditor Law. (Spanierman Gallery, PSP v Love, 320 F Supp 2d 108; Pfohl Bros. Landfill Site Steering Comm. v Allied Waste Sys., Inc., 255 F Supp 2d 134; United States v McCombs, 30 F3d 310; Miner v Edwards, 221 AD2d 934; United States v Alfano, 34 F Supp 2d 827; Matter of Gafco, Inc. v H.D.S. Merchantile Corp., 47 Misc 2d 661; United States v Hansel, 999 F Supp 694.) III. The estate is in violation of section 7-3.1 of the Estates, Powers and Trusts Law. (Case v Fargnoli, 182 Misc 2d 996; Vanderbilt Credit Corp. v Chase Manhattan Bank, 100 AD2d 544.) IV. The Appellate Division’s reliance upon Robbins v DeBuono (218 F3d 197 [2000]) is unfounded. (Wisconsin Dept. of Health & Family Servs. v Blumer, 534 US 473; Matter of Golf v New York State Dept. of Social Servs., 91 NY2d 656; Washington State Dept. of Social & Health Servs. v Guardianship Estate of Keffeler, 537 US 371; Ruck v Novello, 295 F Supp 2d 258; Binder & Binder PC v Barnhart, 399 F3d 128; Bianconi v Preston, 383 F Supp 2d 276; Rose v Rose, 481 US 619; Schweiker v Gray Panthers, 453 US 34; Weinberger v Wiesenfeld, 420 US 636; Califano v Boles, 443 US 282.) V. If Robbins v DeBuono (218 F3d 197 [2000]) is to be applied, the actions of the State do not violate its holding. VI. The Surrogate erred in ruling that it had no jurisdiction over the Margaret M. Tomeck Irrevocable Trust. (Matter of Peck, 79 Misc 2d 1053; Matter of Van Patten, 190 AD2d 322.)

      Pierro & Associates, LLC, Albany (Louis W. Pierro of counsel), for respondent-appellant.
    I. The Appellate Division erred in affirming the Surrogate’s Court’s order denying the estate’s request for attorney’s fees pursuant to 42 USC §§ 1983 and 1988. (Matter of Johnson v Blum, 58 NY2d 454; Matter of Northeast Cent. School Dist. v Sobol, 79 NY2d 598; Matter of Craig, 82 NY2d 388; Matter of Buhaina, 187 Misc 2d 312; Matter of Thomasel v Perales, 78 NY2d 561; Morenz v Wilson-Coker, 321 F Supp 2d 398, 415 F3d 230; Matter of Martinez v Perales, 135 AD2d 818.) II. The Appellate Division correctly affirmed the Surrogate’s Court’s holding that the automatic allocation of John Tomeck’s Social Security benefits to his wife, Margaret M. Tomeck, violated the anti-alienation provisions of the Social Security Act. (Matter of Schachner v Perales, 85 NY2d 316; Wisconsin Dept. of Health & Family Servs. v Blumer, 534 US 473; Matter of Golf v New York State Dept. of Social Servs., 91 NY2d 656; Robbins v DeBuono, 218 F3d 197; Matter of Craig, 82 NY2d 388; Washington State Dept. of Social & Health Servs. v Guardianship Estate of Keffeler, 537 US 371; A.R. v New York City Dept. of Educ., 407 F3d 65; Ruck v Novello, 295 F Supp 2d 258; Binder & Binder PC v Barnhart, 399 F3d 128; Bianconi v Preston, 383 F Supp 2d 276.) III. The Department of Social Service’s arguments regarding fraud, violations of the Debtor and Creditor Law and the Estates, Powers and Trusts Law, and jurisdiction over the irrevocable trust are barred from review as they were not part of its motion for leave to appeal. (Quain v Buzzetta Constr. Corp., 69 NY2d 376.) IV. Assuming arguendo that the Department of Social Services is not barred from raising the fraud and state law violation arguments, the Appellate Division properly affirmed the Surrogate’s Court’s holding that Margaret Tomeck did not commit fraud or violate Debtor and Creditor Law § 273 and EPTL 7-3.1. (Matter of Craig, 82 NY2d 388; Bourgeois v Stadtler, 256 AD2d 1095; Matter of John XX., 226 AD2d 79; Matter of Shah v DeBuono, 95 NY2d 148; Morenz v Wilson-Coker, 321 F Supp 2d 398; Spanierman Gallery, PSP v Love, 320 F Supp 2d 108; Pfohl Bros. Landfill Site Steering Comm. v Allied Waste Sys., Inc., 255 F Supp 2d 134; Case v Fargnoli, 182 Misc 2d 996; Matter of Spetz v New York State Dept. of Health, 190 Misc 2d 297; Vanderbilt Credit Corp. v Chase Manhattan Bank, 100 AD2d 544.) V. Assuming arguendo that the Department of Social Services is not barred from raising the issue of jurisdiction ruled on by the courts below, the Surrogate’s Court correctly held that it did not have jurisdiction over the Margaret M. Tomeck Irrevocable Trust. (Matter of Van Patten, 190 AD2d 322; Matter of Peck, 79 Misc 2d 1053.)

      Andrew M. Cuomo, Attorney General, Albany (Caitlin J. Halligan, Daniel Smirlock and Victor Paladino of counsel), amicus curiae.
    I. Robbins v DeBuono (218 F3d 197 [2000]) which is not binding on this Court, is no longer good law in light of the intervening decision of the Supreme Court in Washington State Dept. of Social & Health Seros, v Guardianship Estate of Keffeler (537 US 371 [2003]). (People v Kin Kan, 78 NY2d 54; Flanagan v Prudential-Bache Sec., 67 NY2d 500, 479 US 931; Binder & Binder PC v Barnhart, 399 F3d 128; Ruck v Novello, 295 F Supp 2d 258; Bianconi v Preston, 383 F Supp 2d 276.) II. Washington State Dept. of Social & Health Servs. v Guardianship Estate of Keffeler (537 US 371 [2003]) requires dismissal of the estate’s defense under 42 USC § 407 (a). (Bianconi v Preston, 383 F Supp 2d 276; Robbins v DeBuono, 218 F3d 197; Rose v Rose, 481 US 619; Weinberger v Wiesenfeld, 420 US 636; Califano v Boles, 443 US 282; Fetterusso v State of New York, 898 F2d 322; Schweiker v Gray Panthers, 453 US 34.)
   OPINION OF THE COURT

Read, J.

The Commissioner of the Saratoga County Department of Social Services (the County DSS) seeks to recoup Medicaid payments made on behalf of John M. Tomeck (the husband) from the estate of Margaret M. Tomeck (the wife) and a trust that she created. To resolve this appeal, we must consider the spousal impoverishment provisions of the Medicaid Act (42 USC § 1396r-5) and its state counterpart (Social Services Law § 366-c), the income-first policy adopted by New York to carry out these provisions (Social Services Law § 366-c [8] [c]), and the anti-alienation provision of the Social Security Act (42 USC § 407 [a]). In particular, we are called upon to decide whether New York’s income-first policy, which takes Social Security benefits into account, violates the federal anti-alienation provision. We hold that it does not.

I.

Medicaid’s Spousal Impoverishment Provisions

Medicaid, a joint federal-state program established pursuant to title XIX of the Social Security Act (42 USC § 1396 et seq.), pays for medical care for those unable to afford it, including nursing home care for medically needy older people who become eligible by incurring medical expenses that reduce their monthly income and assets below prescribed levels. Ordinarily, a local Medicaid agency employee calculates an applicant’s income and resources to figure out how much must be reduced or “spent down” in order for the applicant to meet the financial criteria to qualify for Medicaid benefits (see 42 USC § 1396r-5 [c] [1] [B]; Social Services Law § 366-c [7]; 18 NYCRR 360-4.8 [c]).

“Because spouses typically possess assets and income jointly and bear financial responsibility for each other, Medicaid eligibility determinations for married applicants have resisted simple solutions” (Wisconsin Dept. of Health & Family Servs. v Blumer, 534 US 473, 479 [2002]). Thus, as part of the Medicare Catastrophic Coverage Act of 1988 (MCCA) (42 USC § 1396r-5), Congress adopted the spousal impoverishment provisions, a complex set of standards governing the allocation of resources between the spouse residing in a nursing home (the institutionalized spouse) and the spouse residing in the community (the community spouse). In general, these provisions are designed to insure that the community spouse retains necessary, but not excessive, income and assets, which do not need to be depleted to make the institutionalized spouse eligible for Medicaid. “In the MCCA, Congress sought to protect community spouses from ‘pauperization’ while preventing financially secure couples from obtaining Medicaid assistance” (Blumer, 534 US at 480; see also Matter of Schachner v Perales, 85 NY2d 316, 319 [1995] [discussing prior law]).

The spousal impoverishment provisions include rules for assigning income to spouses, and for determining the community spouse’s “minimum monthly maintenance needs allowance” (MMMNA), an amount deemed sufficient for the community spouse to live at a modest level after the institutionalized spouse becomes eligible for Medicaid, subject to a statutory floor and ceiling (see 42 USC § 1396r-5 [b], [d] [3]; Social Services Law § 366-c [2] [h], Q]; [3]). Any shortfall between the MMMNA and the income allotted to the community spouse is denominated the “community spouse monthly income allowance” (CSMIA), which is one of the allowances or amounts “deducted” when determining the institutionalized spouse’s monthly income available to pay for nursing home care (see 42 USC § 1396r-5 [d] [1], [2]; Social Services Law § 366-c [2] [g]; [4]).

“The provision for [the CSMIA] ensures that income transferred from the institutionalized spouse to the community spouse to meet the latter’s basic needs is not also considered available for the former’s care. As a result, Medicaid [pays] a greater portion of the institutionalized spouse’s medical expenses than it would absent the CSMIA provision” (Blumer, 534 US at 482).

The spousal impoverishment provisions also encompass rules for computing and apportioning a married couple’s combined jointly and separately owned resources in order to protect the community spouse’s share, called the “community spouse resource allowance” (CSRA) (see 42 USC § 1396r-5 [f] [2]; Social Services Law § 366-c [2] [d]). The CSRA is generally equal to one half of the couple’s total countable (i.e., nonexempt) resources, subject to a statutory floor and ceiling (see 42 USC § 1396r-5 [c] [1], [5]; [f] [2]; Social Services Law § 366-c [2] [c], [d], [e]; see also Blumer, 534 US at 482 n 5). All of the institutionalized spouse’s countable resources and the community spouse’s countable resources exceeding the CSRA may be used to pay for nursing home care, and must be spent down in order for the institutionalized spouse to qualify for Medicaid (see 42 USC § 1396r-5 [c] [2]; Social Services Law § 366-c [5] [a]). Once Medicaid eligibility is established, however, “no resources of the community spouse shall be deemed available” to support the institutionalized spouse (see 42 USC § 1396r-5 [c] [4]; Social Services Law § 366-c [5] [c]).

Either spouse has the right to a fair hearing to challenge the adequacy of the MMMNA or the CSRA calculated by the state Medicaid agency (see 42 USC § 1396r-5 [e]; Social Services Law § 366-c [8]). A hearing examiner may raise the MMMNA when exceptional circumstances exist, and may increase the CSRA to generate additional income as necessary to meet the MMMNA (see 42 USC § 1396r-5 [e] [2] [B], [C]; Social Services Law § 366-c [8] [b], [c]).

Finally, Medicaid benefits may not be withheld from the institutionalized spouse in the event the community spouse declines to make spousal resources available to pay for medical expenses (see 42 USC § 1396r-5 [c] [3]; Social Services Law § 366 [3] [a]; see also § 366-c [5] [b]). Specifically, section 366 (3) (a) of the Social Services Law mandates that Medicaid

“shall be furnished to applicants in cases where, although such applicant has a responsible relative with sufficient income and resources to provide medical assistance as determined by the regulations of the department, the income and resources of the responsible relative are not available to such applicant because of . . . the refusal or failure of such relative to provide the necessary care and assistance. In such cases, however, the furnishing of such assistance shall create an implied contract with such relative, and the cost thereof may be recovered from such relative in accordance with title six of article three [‘Powers to Enforce Support’] and other applicable provisions of law.”

As we have explained, this “ ‘spousal refusal’ rule indicates that Medicaid must be provided to the institutionalized spouse who meets eligibility requirements even if the community spouse has income or resources in excess of the [CSRA], as long as the State may seek recovery of the cost of medical assistance from the community spouse” (Matter of Shah v DeBuono, 95 NY2d 148, 161 [2000], citing 42 USC § 1396r-5 [c] [3] and Social Services Law § 366 [3] [a]; see also 18 NYCRR 360-4.10 [c] [4]; Morenz v Wilson-Coker, 415 F3d 230 [2d Cir 2005] [institutionalized spouse who executed valid assignment of spousal support rights to state could not be deemed ineligible for Medicaid on account of community spouse’s assets]).

New York’s Income-First Policy

As previously noted, state and federal law require the CSRA to be increased if either spouse establishes at a fair hearing that it does not generate sufficient earnings to lift the community spouse’s monthly income above the MMMNA (see 42 USC § 1396r-5 [e] [2] [C]; Social Services Law § 366-c [8] [c]). New York allows the CSRA to increase, however, only after taking the institutionalized spouse’s monthly income into account. This approach — called the income-first method — deems or attributes income from the institutionalized spouse to the community spouse. Thus, the CSRA goes up only if the community spouse’s monthly income, including any sums that the institutionalized spouse is allowed to provide, still falls short of the MMMNA.

The Deficit Reduction Act of 2005 mandates the income-first method (see Pub L 109-171 § 6013, 120 US Stat 4, 64 [codified at 42 USC § 1396r-5 (d) (6)]). Prior to its enactment, though, some states had followed a resource-first policy whereby the community spouse was permitted to retain excess resources to produce additional monthly income before any of the institutionalized spouse’s income was applied for this purpose. This resource-first approach allowed a couple to retain assets that otherwise would have to have been expended in order for the institutionalized spouse to qualify for Medicaid. In Matter of Golf v New York State Dept. of Social Servs. (91 NY2d 656 [1998]), the petitioners challenged the local social services agency’s use of the income-first rather than the resource-first method to ascertain Medicaid eligibility. We upheld the agency’s policy, concluding that the state and federal statutes were ambiguous, and that the income-first method was “premised upon a reasonable interpretation of the relevant statutory provisions and [was] consistent with the underlying policy of the Medicaid statute” (id. at 658). Four years later in Blumer, the United States Supreme Court held that the State of Wisconsin’s application of the income-first method did not conflict with the MCCA’s spousal impoverishment provisions.

Social Security’s Anti-Alienation Provision

The anti-alienation provision of the Social Security Act prohibits the assignment or transfer of rights to payment of Social Security benefits, and protects monies paid to recipients from “execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law” (42 USC § 407 [a]). The purpose of this restriction is “to protect social security beneficiaries and their dependents from the claims of creditors” (Fetterusso v State of New York, 898 F2d 322, 327 [2d Cir 1990]).

II.

On July 29, 1996, the wife set up the Margaret M. Tomeck Irrevocable Trust, funded with $20,000, and on August 26, 1996, the husband transferred his undivided half interest in the marital home to the wife. The trust agreement provided that the wife would receive the income from the trust for life; she retained no right to invade the principal for herself, and the trust was irrevocable. In the event the trust held residential property “used” by the wife, she had “the right to occupy the . . . property ... for residential purposes.” If she “cease[d] to use such property as a residence (permanently or seasonally),” the trustees were authorized to hold the property as an investment or sell it. Upon the wife’s death, the trust’s remainder was to be paid to her living children, per capita.

On December 10, 1996, the husband filed an application with the County DSS for Medicaid benefits. Applying the spousal impoverishment provisions, the agency concluded that the husband and wife had excess resources and income, and denied the husband’s application by notice dated January 27, 1997. The husband, who was hospitalized in April 1997, asked for a reassessment. On April 30, 1997, the County DSS again denied the husband’s application on the ground of excess resources in the amount of $45,560.91, and excess monthly income in the amount of $287.92.

Meanwhile, the husband had also requested a fair hearing from the New York State Department of Health (DOH). He argued that his wife’s CSRA should be increased to allow her to keep the excess assets, which would then generate additional interest income. Since the wife’s income still would not reach the MMMNA, however, the County DSS could then attribute a portion of his income to her. DOH rejected this resource-first approach, deciding on July 1, 1997 that the County DSS’s “determination regarding the amount the [husband] must contribute to his wife as a [CSMIA] and the amount of excess resources was correct.”

In July 1997, another application was filed on behalf of the husband along with a spousal refusal. The wife attested that she needed all of her income and the couple’s assets (all of which had been transferred to her) to support herself in the community, and refused to contribute to the husband’s care. By virtue of this spousal refusal, the husband became eligible for Medicaid as of July 1, 1997.

The Medicaid worksheet compiled by the County DSS in conjunction with this last application shows combined countable resources or assets totaling $120,354.34 as of July 1997, the month that the husband entered a nursing home. While one half of this amount is $60,177.77, the minimum CSRA for 1997 was $74,820. The balance of $42,084.34 was considered excess resources. In short, absent the spousal refusal, the wife would have been required to spend down $42,084.34 in order for the husband to qualify for Medicaid.

The worksheet also shows that the wife’s net monthly income was $1,072.24, consisting of Social Security benefits ($456.80), her pension ($119.62) and interest payments on the CSRA ($539.62) minus a health insurance premium ($43.80); and that the husband’s net monthly income was $1,121.75, consisting of his pension ($218.75) and Social Security benefits ($946.80) minus a health insurance premium ($43.80). The MMMNA for 1997 was $1,976, producing a CSMIA of $903.76. Applying the income-first method, the County DSS attributed $903.76 of the husband’s income — all of his pension and most of his Social Security benefits — to the wife. The husband’s remaining income, or $167.99, was excess income available to pay for his medical expenses.

On June 13, 2001, after the husband had been receiving Medicaid for four years, the wife transferred the marital home to the trust. By a deed dated July 19, 2001, the trustees conveyed the home to a third party for a purchase price of $179,000, and the wife moved elsewhere.

The wife died on August 29, 2002 while the husband was still a patient at the nursing home. On January 12, 2004, the wife’s executor filed a petition and formal accounting to settle the estate, and served a citation on the County DSS, apparently because of its potential claim against the husband’s elective share.

The agency filed a claim and objections to the accounting, asserting that the wife owed $309,449.03 for Medicaid benefits provided to the husband from 1997 through January 2004. The County DSS took the position that the wife was a responsible relative with sufficient resources to pay for the husband’s care. As a result, when he was provided with medical services under the Medicaid program, an implied contract was created with the wife (see Matter of Craig, 82 NY2d 388, 391-392 [1993] [“When medical assistance is furnished to an applicant who has a responsible relative with sufficient income and resources to provide medical assistance, the furnishing of such assistance shall create an implied contract with such relative”]; Social Services Law § 366 [3] [a]).

On June 25, 2004, the County DSS moved for summary judgment, demanding that the estate pay over $280,742.99, which it characterized as “the full value of [the wife’s] net testamentary and non-testamentary estate.” The executor cross-moved for summary judgment seeking dismissal of the claim, approval of the accounting, a determination that the court did not have jurisdiction over the trust, and attorneys’ fees under 42 USC § 1988.

The Surrogate denied the agency’s motion, dismissed its claim against the estate and its objections to the accounting, granted summary judgment to the executor, and denied the executor’s request for attorneys’ fees. The Surrogate held that attribution of the husband’s Social Security benefits to the wife violated the anti-alienation provision. Since the wife’s income was “well below” the MMMNA absent the attribution, the Surrogate concluded that she would have been entitled to an increased CSRA, and did not, in fact, possess excess resources. Concomitantly, the Surrogate concluded that the wife’s spousal refusal did not create an implied contract for the husband’s care because it was based on the County DSS’s “incorrect determination” that the husband’s monthly Social Security income could be deemed or attributed to the wife to boost her income to reach the MMMNA.

Next, the Surrogate held that the wife’s transfer of the marital home to the trust in 2001 did not affect the husband’s Medicaid eligibility and, in any event, he did not have jurisdiction over the trust in an accounting proceeding for the estate. Finally, the Surrogate denied the executor’s request for attorneys’ fees without explanation. Both parties appealed.

The Appellate Division affirmed, concluding that “no implied contract arose because it was improper for [the County] DSS, in 1997, to allocate Social Security income from the husband to [the wife] to raise her income level to the [MMMNA]” in light of the anti-alienation provision (29 AD3d 156, 159 [3d Dept 2006]). The Appellate Division agreed with the Surrogate that the wife’s transfer of the marital home to the trust had no impact on the husband’s Medicaid eligibility. Further,

“because recovery for medical assistance from the estate . . . [could] only be had on proof that such spouse, at the time of the furnishing of the medical assistance [to the husband], was a financially responsible relative in that . . . she had sufficient income and resources to provide medical assistance, and in light of our holding that no implied contract arose at the time [the wife] executed the spousal refusal or at any point thereafter, we find that respondent has not established a cognizable claim against [the wife’s] estate” (id. at 162 [internal quotation marks and citation omitted]).

Because no implied contract existed and the County DSS had no cognizable claim, the Appellate Division also rejected the agency’s argument that the transfer of the marital home to the trust violated Debtor and Creditor Law § 273 and EPTL 7-3.1 “inasmuch as both of those provisions are designed to protect creditors from conveyances which would otherwise shield the assets from their reach”; similarly, the conclusion that the County DSS had “not asserted a valid claim against [the] estate obviate[d] any need to address” whether the Surrogate had jurisdiction over the trust’s assets (id.). Finally, the Court decided that the executor was not entitled to attorneys’ fees because “[although requiring an interpretation of the state and federal statutes governing Medicaid benefits, . . . [the] action [did] not equate with a claim asserted under 42 USC § 1983, rendering counsel fees under 42 USC § 1988 unavailable” (id. at 163). We subsequently granted the County DSS’s motion for permission to appeal, and the estate’s motion for permission to cross-appeal.

III.

The County DSS contends that the wife was a responsible relative with sufficient resources who refused to pay for the husband’s nursing home care, which resulted in an implied contract giving the agency the right to assert a claim against the estate to recover Medicaid payments made on the husband’s behalf. The key consideration is whether the wife possessed “sufficient means during the period the medical assistance was rendered. If . . . a responsible relative is available who had sufficient means at the time of accrual, the recovery [can] be obtained” (Craig, 82 NY2d at 393 [interpreting Social Services Law § 366 (3) (a)]). If the County DSS properly applied, the income-first method when it deemed the husband’s monthly Social Security income available to meet the MMMNA, the wife possessed excess resources in July 1997. Thus, we must decide whether this practice subjects Social Security benefits to “execution, levy, attachment, garnishment, or other legal process” in contravention of 42 USC § 407 (a), the anti-alienation provision.

In deciding that the anti-alienation provision was violated here, both lower courts relied on the decision of the United States Court of Appeals for the Second Circuit in Robbins v DeBuono (218 F3d 197 [2d Cir 2000]). In Robbins, as is the case here, the local social services agency determined that the community spouse had assets in excess of the CSRA. Some months after accepting the institutionalized spouse’s Medicaid application, however, the local social services agency “demanded that [the community spouse] contribute to the cost of [the institutionalized spouse’s] care from these ‘excess’ assets and threatened to sue her to recover the money it had spent for [the institutionalized spouse’s] care if she refused” (218 F3d at 198). The community spouse did not request a fair hearing to seek to increase her CSRA because she was aware of New York’s income-first policy. Instead, she sued in federal court, claiming that the income-first method, to the extent it attributed her spouse’s Social Security benefits to her, ran afoul of the anti-alienation provision.

The Second Circuit agreed for two reasons. First, the Court focused on its decision in a case involving a representative payee, Johnson v Harder (383 F Supp 174 [D Conn 1974], cert denied 423 US 876 [1975]), “[t]he seminal case in [the] circuit on deeming or attributing Social Security benefits” (Robbins, 218 F3d at 201). In Johnson, the Court concluded that although Social Security benefits were to “be used for the beneficiary’s needs, as he or his representative payee may best determine” (id.), the Connecticut policy at issue, in fact, forced the representative payee to exercise discretion in favor of herself. The Second Circuit reasoned that attribution similarly coerced the community spouse in Robbins into spending the institutionalized spouse’s Social Security benefits on herself, stripping away her ability to use them as she might “best determine.” That is, if the community spouse elected to pay these benefits for the institutionalized spouse’s current care, she jeopardized her own well-being since the local social services agency might sue her to obtain the assets she would need for her own support in the future. Second, the Robbins court concluded that the local social services agency’s “express threat” to sue to recover the Social Security benefits and its use of the income-first policy in a fair hearing fell within “legal process” as defined by the anti-alienation provision (id. at 202).

The United States Supreme Court in Washington State Dept. of Social & Health Servs. v Guardianship Estate of Keffeler (537 US 371 [2003]), however, subsequently emphasized its “restrictive” interpretation of “other legal process” as that term is used in the anti-alienation provision (537 US at 383-384, 386). The Court’s approach in Keffeler contrasts sharply with the Second Circuit’s admittedly “expansive” interpretation of “legal process” in Robbins (218 F3d at 201 [“legal process . . . embrace(s) not only the use of formal legal machinery but also resort to express or implied threats and sanctions” (internal quotation marks and citation omitted)]).

Washington State, which was the representative payee for certain foster care children who were receiving Social Security benefits, used these benefits to offset the cost of foster care by depositing them in a state account. In Keffeler, Washington’s high court held that section 407 (a) was intended to prohibit creditors from accessing Social Security benefits, and that the state’s scheme involved “creditor-type” acts (537 US at 380).

The Supreme Court disagreed, concluding that the key question under section 407 (a) — which the Court tellingly referred to as the Social Security Act’s “antiattachment” provision — was not whether Washington was a creditor, but whether the state’s “manner of gaining control of the federal funds involve[d] ‘other legal process’ ” (537 US at 383). In deciding that it did not, the Court noted “[t]hat restriction to the statutory usage of ‘other legal process’ is important here, for in the abstract the department does use legal process as the avenue to reimbursement: ... by a state legal process the department makes claims against the accounts kept by the state treasurer” (537 US at 383-384); however, section 407 (a)

“uses the term ‘other legal process’ far more restrictively .... ‘[0]ther legal process’ should be understood to be process much like the processes of execution, levy, attachment, and garnishment, and at a minimum, would seem to require utilization of some judicial or quasi-judicial mechanism, though not necessarily an elaborate one, by which control over property passes from one person to another in order to discharge or secure discharge of an allegedly existing or anticipated liability” (537 US at 384-385).

Moreover, Keffeler distinguished Philpott v Essex County Welfare Bd. (409 US 413 [1973]), on which the Second Circuit had relied in Robbins, and noted that Philpott “involved judicial actions in which a State sought to attach a beneficiary’s Social Security benefits as reimbursement for the costs of the beneficiary’s care and maintenance” (Keffeler, 537 US at 388).

The Second Circuit has subsequently recognized that Keffeler “subtly disturbed the law of this Circuit” (Binder & Binder PC v Barnhart, 399 F3d 128, 134 [2d Cir 2005]). Several lower courts have gone further. In Wojchowski v Novello (2006 WL 1888589, *3, 2006 US Dist LEXIS 46108, *8 [WD NY 2006], appeal pending [2d Cir Docket No. 06-3373-CV]), the United States District Court for the Western District of New York held that Keffeler undercut “the rationale upon which Robbins was based,” and accordingly declined to follow Robbins (see also Ruck v Novello, 295 F Supp 2d 258, 263 [WD NY 2003] [Keffeler “seriously undermines the Robbins rationale”]; Bianconi v Preston, 383 F Supp 2d 276, 278 n [D Mass 2005] [declining to follow Robbins and citing Binder as support for proposition that Keffeler “throws a shadow over Robbins”]). The federal district courts in Wojchowski, Ruck and Bianconi all concluded that attributing or deeming the institutionalized spouse’s monthly Social Security income to the community spouse does not violate the anti-alienation provision. We agree.

Attribution does not vest the local social services agency with control over the institutionalized spouse’s Social Security benefits. As the district court observed in Ruck, the fair hearing does “not directly involve control over property passing from one person to another to discharge some liability” as required under Keffeler (Ruck, 295 F Supp 2d at 264; see also Wojchowski, 2006 WL 1888589 at *3, 2006 US Dist LEXIS 46108 at *9 [attribution does not actually take or wrest control over the institutionalized spouse’s benefits]). Although the hearing examiner may approve of the attribution during a fair hearing, he cannot force the institutionalized spouse to hand over a Social Security check to the community spouse.

Second, attribution does not involve a judicial or quasi-judicial process (see Bianconi, 383 F Supp 2d at 278 [attribution “does not create any type of administrative or judicial mechanism bearing any resemblance to ‘execution, levy, attachment or garnishment’ ”]). It is essentially a budgeting methodology. The local social services agency prepares a worksheet on which it calculates the income of the institutionalized spouse and the community spouse, and computes and apportions their resources according to standards set out in the federal and state spousal impoverishment provisions (42 USC § 1396r-5; Social Services Law § 366-c; 18 NYCRR 360-4.10). The worksheet informs the community spouse how much to spend down in order for the institutionalized spouse to qualify for Medicaid. There is no court involved. Moreover, although the claim against the estate in this case is clearly “legal process,” the County DSS did not seek the husband’s Social Security benefits in this proceeding.

Finally, Keffeler requires more than coercion or the threat of litigation to meet the “other legal process” standard. It calls for actual judicial or quasi-judicial process, and thus contradicts Robbins to the extent that case indicates otherwise. In any event, there was no “express threat” of litigation here as occurred in Robbins. In fact, after the wife declined to spend down in compliance with the spousal impoverishment provisions, the County DSS did not even hint at much less commence a spousal recovery action, and the husband was never forced to do anything in particular with his Social Security benefits.

While married couples are faced with a difficult decision when choosing whether to spend down or pursue a spousal refusal, they do have a choice. The MCCA safeguards the community spouse from impoverishment; it does not guarantee that the community spouse can keep all the couple’s assets or maximize the community spouse’s wealth, or prevent the government from seeking to recoup Medicaid benefits when a spouse chooses to retain assets rather than spend down (see Wone, Don’t Want to Pay for Your Institutionalized Spouse? The Role of Spousal Refusal and Medicaid in Funding Long-Term Care, 14 Elder LJ 485, 515 [2006] [discussing spousal recoveiy and estate recovery and noting that “(u)nlike spousal recovery, the community spouse is protected from estate recovery until after his or her death”]).

In sum, because the federal anti-alienation provision did not foreclose the County DSS from attributing the husband’s Social Security benefits to the wife, she had sufficient means to pay for the husband’s nursing home care as a matter of law in July 1997 when the husband became eligible for Medicaid. Since the wife possessed sufficient resources at that time, an implied contract for the husband’s care was created under Social Services Law § 366 (3) (a). We do not reach any of the other issues raised by the County DSS, which the Surrogate should review in light of our decision. The Appellate Division must, however, first decide whether the Surrogate has jurisdiction over the trust, an issue that it did not reach in light of its disposition of the appeal. We deny the estate’s cross appeal requesting attorneys’ fees.

Accordingly, the order of the Appellate Division should be modified, without costs, by denying the estate’s motion for summary judgment in its entirety, granting the Commissioner’s motion for summary judgment as to liability and remitting to the Appellate Division for further proceedings in accordance with this opinion; and, as so modified, affirmed.

Chief Judge Kaye and Judges Ciparick, Graffeo, Smith, Pigott smd Jones concur.

Order modified, etc.

      . At some point, the husband commenced a CPLR article 78 proceeding to challenge DOH’s use of the income-first method. After we handed down our decision in Golf, he apparently discontinued this proceeding.

      . The parties do not dispute the accuracy of any of the figures on the worksheet.

      . The County DSS arrived at this number by first subtracting the CSRA of $74,820 from $120,354.34, the couple’s total countable resources. This yielded $45,534.34, from which the agency then subtracted $3,450, the amount of money that the institutionalized spouse was allowed to retain as a reserve in order to meet any potential needs without jeopardizing his Medicaid eligibility.

      . The wife’s actual interest income on all assets was $659.55.

      . On March 8, 2004, the husband’s guardian ad litem filed a report with the Surrogate in which he agreed with the estate’s attorneys that the husband’s elective share of the estate was $30,581.21, and that his elective share of the trust was $61,442.40. In his report dated November 8, 2004, the guardian remarked that it “appear[ed] from the estate[’s] papers” to be “conceded” that the County DSS was “entitled to the elective share,” or $92,023.61 altogether. The husband died in 2005 during the pendency of this litigation.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    [872 NE2d 247, 840 NYS2d 561]
    In the Matter of Jean Marshall, Justice of the Cuyler Town Court, Cortland County, Petitioner. State Commission on Judicial Conduct, Respondent.
    Argued June 7, 2007;
    decided July 2, 2007
    POINTS OF COUNSEL

      Lawrence H. Knickerbocker, Cortland, for petitioner.
    I. Petitioner, Jean Marshall, a Justice of the Cuyler Town Court, Cortland County, did not violate section 100.1 or section 100.2 (A) of the Rules of the Chief Administrator of the Courts (22 NYCRR) governing judicial conduct. (Matter of Seiffert, 65 NY2d 278; Poster v Poster, 4 AD3d 145; Slater v Links at N. Hills, 262 AD2d 299; Loughran v Cruickshank, 8 AD3d 799; Bellnier v Bellnier, 158 AD2d 947; Matter of Quinn v State Commn. on Jud. Conduct, 54 NY2d 386.) II. The Commission on Judicial Conduct’s determined sanction of removal should be rejected and such other sanction as this Court finds fair and just be imposed. (Matter of Reeves, 63 NY2d 105; Matter of Waltemade, 37 NY2d [a]; Matter of Kiley, 74 NY2d 364; Matter of Blackburne, 7 NY3d 213; Matter of Steinberg, 51 NY2d 74.)

      Robert J. Tembeckjian, New York City, and John J. Postel for respondent.
    I. The charges against petitioner are clearly established in the record. (Matter of Spector v State Commn. on Jud. Conduct, 47 NY2d 462; Matter of Quinn v State Commn. on Jud. Conduct, 54 NY2d 386; Matter of Mogil, 88 NY2d 749; Matter of Feinberg, 5 NY3d 206; Matter of Sims [State Commn. on Jud. Conduct], 61 NY2d 349; Matter of Reeves, 63 NY2d 105; Matter of Going, 97 NY2d 121; Matter of Collazo [State Commn. on Jud. Conduct], 91 NY2d 251; Matter of Kiley, 74 NY2d 364.) II. Petitioner’s egregious misconduct warrants her removal from office. (Matter of Jones, 47 NY2d [mmm]; Matter of Myers, 67 NY2d 550; Matter of Steinberg, 51 NY2d 74; Matter of Fabrizio, 65 NY2d 275; Matter of Gelfand, 70 NY2d 211; Matter of Intemann, 73 NY2d 580; Matter of Mogil, 88 NY2d 749; Matter of Collazo [State Commn. on Jud. Conduct], 91 NY2d 251.)
   OPINION OF THE COURT

Per Curiam.

By formal written complaint, the State Commission on Judicial Conduct brought two misconduct charges against petitioner Jean Marshall, Justice of the Cuyler Town Court, Cortland County. In charge one, the Commission alleged that petitioner had engaged in improper ex parte communications with the defendants in several building code violation cases and then dismissed the cases in advance of the adjourned dates without providing the prosecutor notice or an opportunity to be heard. Charge two alleged that, during the investigation, petitioner testified falsely at a Commission proceeding and altered her court calendar to conceal the deception. In her .answer, petitioner essentially admitted to the conduct alleged in charge one but did not respond to the accusations of false testimony and record alteration.

The Referee designated by the Commission to hear and report found that, as to charge one, petitioner failed to properly perform the duties of her office, but concluded that the Commission failed to prove the allegations of charge two. After its own hearing, the Commission upheld both charges and determined that petitioner should be removed. We agree with the Commission’s findings and conclusions, and accept its determined sanction.

Neither the Commission nor this Court is bound to accept the Referee’s findings (see Matter of Reeves, 63 NY2d 105 [1984]; 22 NYCRR 7000.6 [f] [1] [iii]). In judicial misconduct cases, this Court has the authority to review findings of fact as well as to determine the appropriate sanction (NY Const, art VI, § 22 [d]; Matter of Sims [State Commn. on Jud. Conduct], 61 NY2d 349, 353 [1984]).

The record demonstrates that, on December 29, 2003, petitioner engaged in improper ex parte conversations with three defendants concerning the merits of their cases and told them that they did not have to appear in court that evening, as had been scheduled. Hours later, at the court session, petitioner told the town’s attorney and the code enforcement officer that the cases would be adjourned to January 26, 2004, and she wrote that date in her court calendar. Prior to the adjourned date, however, on January 13, 2004, petitioner issued a letter order dismissing the cases sua sponte without providing the town’s attorney or code enforcement officer an opportunity to be heard.

When later questioned by the Commission, petitioner repeatedly testified falsely that she had not adjourned the cases. She also used white-out to conceal the adjourned date originally written in her court calendar. We are not persuaded by petitioner’s claim that this was merely a routine alteration intended only to update the status of the cases and therefore conclude that both charges should be sustained.

Petitioner’s actions violated the high standards of integrity and conduct required of the Judiciary. Although “the use of a Judge’s lack of candor’ as an aggravating circumstance should be approached cautiously to minimize the risk that the investigative process itself will be used to generate more serious sanctions,” removal is appropriate “where the Judge who was to be sanctioned gave patently false explanations to the Commission despite contrary objective proof’ (Matter of Kiley, 14: NY2d 364, 371, 370 [1989]). That is precisely what happened here.

Accordingly, the determined sanction should be accepted, without costs, and Jean Marshall removed from the office of Justice of the Cuyler Town Court, Cortland County.

Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur in per curiam opinion.

Determined sanction accepted, etc.


author: Graffeo, J.

text:
    [871 NE2d 1133, 840 NYS2d 307]
    In the Matter of Todd North, Appellant, v Board of Examiners of Sex Offenders of State of New York, Respondent.
    Argued June 5, 2007;
    decided July 2, 2007

      POINTS OF COUNSEL

      Burgett & Robbins, LLP, Jamestown (Robert A. Liebers of counsel), for appellant.
    I. The Appellate Division erred by requiring Mr. North to register as a sex offender under the March 11, 2002 amendments to the Sex Offender Registration Act. (Matter of Orens v Novello, 99 NY2d 180; Matter of Auerbach v Board of Educ. of City School Dist. of City of N.Y., 86 NY2d 198; People v Kennedy, 7 NY3d 87.) II. The Appellate Division erred by holding that Mr. North had to register because his federal sentence required him to register. (People v Kennedy, 7 NY3d 87; New York v United States, 505 US 144.)

      Andrew M. Cuomo, Attorney General, Albany {Andrea Oser, Barbara D. Underwood and Nancy A. Spiegel of counsel), for respondent.
    I. Petitioner is required to register by subsection (i) of Correction Law § 168-a (2) (d). (Matter of Millan, 189 Misc 2d 419, 295 AD2d 267; Post v 120 E. End Ave. Corp., 62 NY2d 19; Matter of Nadel, 188 Misc 2d 427; Matter of Mandel, 184 Misc 2d 897, 293 AD2d 750; People v Gonzalez, 61 NY2d 586; People v Olah, 300 NY 96; People v Lewis, 37 AD3d 689; People v Johnston, 28 AD3d 1125, 7 NY3d 707; General Dynamics Land Systems, Inc. v Cline, 540 US 581.) II. Petitioner is also required to register by subsection (iii) of Correction Law § 168-a (2) (d). (People v Ryan, 274 NY 149; Bragg v Genesee County Agric. Socy., 84 NY2d 544; Matter of Sutka v Conners, 73 NY2d 395; Matter of Roballo v Smith, 63 NY2d 485.)
   OPINION OF THE COURT

Graffeo, J.

In 2004, petitioner Todd North pleaded guilty to a federal possession of child pornography offense. Our task is to determine whether the Board of Examiners of Sex Offenders erred when it concluded that petitioner’s conviction in a foreign jurisdiction required him to register under New York’s Sex Offender Registration Act (SORA). We conclude that petitioner’s federal conviction warranted registration under SORA.

Federal agents executed a search warrant at petitioner’s home on February 6, 2002, seizing his computer. Examination of the computer revealed that petitioner had knowingly purchased a subscription to an Internet site that was tailored to appeal to individuals with a sexual interest in children. Petitioner acknowledged to federal authorities that, over a period of four or five months, he downloaded and viewed numerous images depicting children ages 7 to 17 years engaged in sexual acts. In November 2004, petitioner pleaded guilty in United States District Court for the Western District of New York to a possession of child pornography offense (18 USC § 2252A [a] [5] [B]) and was sentenced to five years probation with 24 days of electronic monitoring.

At the state level, the Board of Examiners of Sex Offenders, proceeding in accordance with Correction Law § 168-k, concluded that petitioner was required to register under SORA. The Board found that petitioner had been convicted of a sex offense as defined in Correction Law § 168-a (2) (d), which addresses when a person convicted in a foreign jurisdiction (such as federal court) must register in New York. After the Board rejected his request for reconsideration, petitioner commenced this CPLR article 78 proceeding challenging the registration determination. Although petitioner acknowledged that SORA had been amended in 2002 to explicitly cover certain federal convictions (including his child pornography offense) in Correction Law § 168-a (2) (d), he argued that the 2002 amendments did not apply to him. Petitioner claimed that he fell within a “loophole” created in the legislation’s complex effective date provision because he committed his offense before the effective date of the new amendments.

In response, the Board contended that, independent of the 2002 amendments, petitioner was required to register because his federal offense contained the same “essential elements” as the New York crime of possession of a sexual performance by a child, a registrable offense. The Board further asserted that the 2002 amendments specifically listing petitioner’s federal offense embraced petitioner because he was convicted in 2004 — two years after the legislation was enacted.

Supreme Court denied the petition and dismissed the proceeding, concluding that registration was required under SORA’s “essential elements” provision, which predated the 2002 amendments (see Correction Law § 168-a [2] [d] [i]). That provision mandates registration for a person convicted in a foreign jurisdiction of a crime containing the “essential elements” of a New York offense that is subject to registration. The court noted that the federal child pornography offense and New York’s most closely analogous offense (possession of a sexual performance by a child) were not identical because the federal offense criminalizes possession of pornographic images of children under age 18 while the New York offense covers pornographic images of children under 16 years of age. But finding it undisputed that petitioner possessed pornographic images of children under age 16, the court held that petitioner engaged in conduct addressed by the New York offense, thereby meeting the “essential elements” standard.

The Appellate Division agreed that petitioner was required to register under SORA but rejected Supreme Court’s rationale. The Court analogized the SORA “essential elements” analysis to the comparison undertaken when a court assesses whether a defendant’s criminal sentence should be enhanced as a result of a prior foreign conviction, and reasoned that the “essential elements” standard is not met unless the elements of the federal offense are virtually identical to the elements of the registrable state offense to which it is compared. Given the distinctions between the victim age provisions in the federal and New York offenses, the Court determined that standard was not met. However, noting that the 2002 amendments had been intended to clarify that individuals convicted of the federal offenses in question were required to register under SORA, the Court concluded that the 2002 amendments applied to petitioner and he must register under Correction Law § 168-a (2) (d) (iii). This Court granted petitioner leave to appeal and we now affirm.

Since the inception of SORA in 19.95, a person convicted of a felony in another jurisdiction, including conviction of a federal crime, has been subject to registration in New York if the foreign offense “includes all of the essential elements” of one of the New York offenses listed in SORA (see L 1995, ch 192, § 2). In 1999, the Legislature added another basis for registration arising from a foreign conviction — an offender must register in New York if that person committed a felony subject to registration in the foreign jurisdiction (see L 1999, ch 453, § 1). SORA was again amended in 2002 to clarify that particular federal offenses are subject to New York’s registration requirement and the amendments removed the requirement that the foreign offense be a felony (subject to a potential death sentence or prison sentence of more than one year) (see L 2002, ch 11, § 1). In addition, the foreign conviction provision was reorganized into three subsections. As a result of this legislative expansion, the definition of a registrable “sex offense” now includes

“a conviction of (i) an offense in any other jurisdiction which includes all of the essential elements of any such crime provided for in paragraph (a), (b) or (c) of this subdivision or (ii) a felony in any other jurisdiction for which the offender is required to register as a sex offender in the jurisdiction in which the conviction occurred or, (iii) any of the provisions of 18 U.S.C. 2251, 18 U.S.C. 2251A, 18 U.S.C. 2252, 18 U.S.C. 2252A, or 18 U.S.C. 2260, provided that the elements of such crime of conviction are substantially the same as those which are a part of such offense as of the date on which this subparagraph takes effect” (Correction Law § 168-a [2] [d]).

In People v Kennedy (7 NY3d 87 [2006]), we addressed whether a member of the United States Navy who was convicted by general court-martial of “indecent assault” under the Uniform Code of Military Justice was required to register under Correction Law § 168-a (2) (d) (ii). We concluded that registration was not warranted under subsection (ii) because the People failed to establish that the foreign jurisdiction where the defendant was convicted — the Navy — maintains a sex offender registry.

Here, the Board relies on two different subsections of the statute — subsections (i) and (iii). Subsection (i) directs that a person convicted of an offense in a foreign jurisdiction is required to register in New York when the foreign offense contains “all of the essential elements” of a New York offense that is subject to registration. Although the essential elements provision has been part of SORA since its enactment in 1995, this is our first occasion to interpret it.

The Board argues that petitioner’s federal possession of child pornography offense is comparable to the New York offense of possessing a sexual performance by a child (Penal Law § 263.16), a class E felony subject to registration under Correction Law § 168-a (2) (a) (i). Petitioner’s federal felony offense, codified at 18 USC § 2252A (a) (5) (B), makes it unlawful for any person to

“knowingly possess [ ] any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer, or that was produced using materials that have been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer.”

The term “child pornography” includes any “computer or computer-generated image or picture” involving “the use of a minor engaging in sexually explicit conduct” (18 USC § 2256 [8] [A]) and the term “ ‘minor’ means any person under the age of eighteen years” (18 USC § 2256 [1]).

Under Penal Law § 263.16, “[a] person is guilty of possessing a sexual performance by a child when, knowing the character and content thereof, he knowingly has in his possession or control any performance which includes sexual conduct by a child less than sixteen years of age.” The term “performance” includes any motion picture or photograph (Penal Law § 263.00 [4]). Petitioner does not dispute that, like the federal crime, the New York offense criminalizes possession of computer images of children engaged in sexually explicit activity — the conduct underlying his federal conviction.

In asserting that the New York crime is not sufficiently similar to the federal offense to meet SORA’s “essential elements” inquiry, petitioner focuses on the maximum victim age designations in the two offenses. While the federal offense criminalizes possession of pornography involving children under the age of 18, the New York provision deals only with possession of pornography involving children under the age of 16. Noting that Penal Law § 70.04 (1) (b) (i), the second violent felony offender statute, contains the phrase “essential elements,” petitioner suggests that this Court should import the same approach used to determine whether a prior foreign offense is a predicate for purposes of enhanced sentencing in criminal cases. In that context, our Court has applied a strict equivalency standard that examines the elements of the foreign conviction to determine whether the crime corresponds to a New York felony, usually without reference to the facts giving rise to that conviction (see People v Muniz, 74 NY2d 464 [1989]; People v Gonzalez, 61 NY2d 586 [1984]). Under this standard, technical distinctions between the New York and foreign penal statutes can preclude use of a prior felony as a predicate for enhanced sentencing, even though the actual criminal conduct leading to the foreign conviction would have fallen within the ambit of the New York offense (see e.g. Muniz, 74 NY2d 464 [1989]).

We are unpersuaded that the Legislature intended that the SORA “essential elements” inquiry involve the same strict equivalency approach used in the criminal enhanced sentencing context. The enhanced sentencing standard was developed by this Court more than 50 years ago in cases interpreting the second felony offender provision currently codified at Penal Law § 70.06 (1) (b) (i) — a provision that long predated the second violent felony offender statute (Penal Law § 70.04 [1] [b] [i]) and which has never included the “essential elements” language found in SORA (see e.g. People v Olah, 300 NY 96 [1949] [interpreting former Penal Law § 1941, a predecessor of Penal Law § 70.06]). In the enhanced sentencing cases, we have not used the phrase “essential elements,” much less characterized the relevant inquiry as an “essential elements” test (see e.g. Muniz, 74 NY2d 464 [1989]; Gonzalez, 61 NY2d 586 [1984]). Obviously, the strict equivalency requirement does not turn on the presence of “essential elements” language. As such, the Legislature’s decision to use that phrase in Correction Law § 168-a (2) (d) does not suggest an intent to incorporate the strict enhanced sentencing test in SORA proceedings.

In addition, the fact that the Legislature used the same phrase when it enacted SORA’s “essential elements” provision in 1995 as it used in Penal Law § 70.04 (1) (b) (i) in 1978 (L 1978, ch 481, § 4) would not, without more, compel that the language be interpreted identically (see People v Hernandez, 98 NY2d 175 [2002]). Certainly, words or phrases used in the same legislation or statutory scheme are commonly ascribed the same meaning. Here, however, the language on which petitioner relies appears in distinct legislation enacted in separate statutory schemes that fulfill different functions.

As part of the penal system, enhanced sentencing statutes serve to extend the term of incarceration attending a criminal conviction. In contrast, SORA is not a penal statute and the registration requirement is not a criminal sentence (Doe v Pataki, 120 F3d 1263 [2d Cir 1997], cert denied 522 US 1122 [1998]). Rather than imposing punishment for a past crime, SORA is a remedial statute intended to prevent future crime; its aim is to “protect! ] communities by notifying them of the presence of individuals who may present a danger and enhancing law enforcement authorities’ ability to fight sex crimes” (id. at 1276). While application of a strict equivalency standard is understandable in the enhanced sentencing context where the length of a defendant’s incarceration is to be determined, it may not be the optimal vehicle to effectuate SORA’s remedial purposes. The legislative history of SORA does not disclose any intent by lawmakers to import the test from the Penal Law.

We are similarly unpersuaded that language in Correction Law § 168-a (2) (d) (iii) compels a strict interpretation of the “essential elements” standard. Subsection (iii) — added in 2002 — enumerates specific federal offenses, including petitioner’s child pornography offense, as registrable offenses, “provided that the elements of such crime of conviction are substantially the same as those which are a part of such offense” as of the effective date of the legislation. Petitioner suggests that, by using the “substantially the same” language in subsection (iii), the Legislature was signaling that the “essential elements” language already included in subsection (i) must be strictly interpreted. But this linguistic distinction is explained by the fact that the “substantially the same” language relates to an entirely different inquiry than the “essential elements” test. Under subsection (i) the Board must compare the foreign offense to the analogous New York offense while subsection (iii) requires the Board to review the federal offense to make certain that it is “substantially the same” in content as it was at the time it was listed in SORA in 2002.

By including this proviso in subsection (iii), the Legislature accounted for the possibility that Congress might amend the enumerated federal statutes in the future and materially redefine those crimes, or renumber the provisions in title 18 of the United States Code so that the statutes listed in subsection (iii) no longer involve sex offenses, rendering the identified federal offenses inappropriate predicates for SORA registration. If that occurs (and to date it has not), the Board can rely on the “substantially the same” language in subsection (iii) to relieve a person convicted of one of the specified, but redefined, federal offenses of the duty to register. But the proviso simply does not direct how the Board should interpret or apply the “essential elements” standard in subsection (i).

Considering its context, we conclude that the “essential elements” provision in SORA requires registration whenever an individual is convicted of criminal conduct in a foreign jurisdiction that, if committed in New York, would have amounted to a registrable New York offense. This necessarily requires that the Board compare the elements of the foreign offense with the analogous New York offense to identify points of overlap. When the Board finds that the two offenses cover the same conduct, the analysis need proceed no further for it will be evident that the foreign conviction is the equivalent of the registrable New York offense for SORA purposes. In circumstances where the offenses overlap but the foreign offense also criminalizes conduct not covered under the New York offense, the Board must review the conduct underlying the foreign conviction to determine if that conduct is, in fact, within the scope of the New York offense. If it is, the foreign conviction is a registrable offense under SORA’s essential elements test.

In this case, comparison of the elements reveals that there is significant overlap between the conduct criminalized in the analogous New York offense and the activity covered by the federal child pornography offense. However, because the federal offense covers some activity — possession of child pornography involving children aged 16 and 17 — not encompassed in the New York offense, review of the conduct underlying petitioner’s federal conviction is necessary. Here, it is undisputed that petitioner possessed pornographic images of children under age 16 and therefore engaged in conduct that was criminal under both the federal and comparable New York offenses. As such, the Board did not err in determining that, by virtue of his federal child pornography conviction, petitioner was required to register under the “essential elements” provision in Correction Law § 168-a (2) (d) (i).

This result is consistent with statements in the legislative history of the 2002 SORA amendments relating to the inclusion of the specified federal offenses. The Governor’s Program Bill Memorandum and the Senate and Assembly sponsors’ memoranda indicate that the intent in listing the federal child pornography offense was to “clarify” that the offense was subject to registration, which was necessary because some federal offenders had contested the equivalency of the federal and New York offenses (see Governor’s Program Bill Mem # 102, 2002 NY Legis Ann, at 6, 8; Senate Mem in Support, 2002 McKinney’s Session Laws of NY, at 1646; Aubry Mem in Support of 2002 NY Assembly Bill A10367). By characterizing the new legislation as a “clarification,” rather than as a change in the law, the Legislature and the Governor indicated that the child pornography offense was already subject to registration under the existing “essential elements” provision. Hence, in their view, the victim age distinctions between the federal and state offenses did not preclude registration under that standard.

Because the Board did not err in requiring petitioner to register under Correction Law § 168-a (2) (d) (i), we need not address petitioner’s claim that, notwithstanding his 2004 conviction of a listed federal offense, he can avoid registration under subsection (iii) because of the effective date provision in the 2002 legislation.

Accordingly, the order of the Appellate Division should be affirmed, without costs.

Chief Judge Kaye and Judges Ciparick, Read, Smith, Pigott and Jones concur.

Order affirmed, without costs.

      . In dicta, the Appellate Division observed that registration might also be required under the terms of petitioner’s federal probation. Because this was not a ground on which the Board relied in its determination, we have no occasion to address it in this article 78 proceeding.

      . Our Court has never assessed whether petitioner’s federal child pornography offense would be an appropriate predicate for enhanced sentencing under the strict equivalency standard but, for the purpose of this appeal, we assume that it would not.

      . This was apparently a reference to litigation prior to the 2002 amendments in which courts had reached contradictory conclusions on the equivalency issue (see Matter of Millan, 189 Misc 2d 419 [Sup Ct 2001], revd 295 AD2d 267 [1st Dept 2002]; Matter of Nadel, 188 Misc 2d 427 [Sup Ct 2001]; Matter of Mandel, 184 Misc 2d 897 [County Ct 2000], affd 293 AD2d 750 [2d Dept 2002], appeal dismissed 98 NY2d 727 [2002]).


author: Pigott, J.

text:
    [872 NE2d 860, 840 NYS2d 748]
    Sonia Rosario et al., Respondents, et al., Plaintiffs, v Diagonal Realty, LLC, et al., Appellants, et al., Defendants.
    Argued May 31, 2007;
    decided July 2, 2007

      POINTS OF COUNSEL

      Horing Welikson & Rosen, EC., Williston Park (Richard T Walsh and Niles C. Welikson of counsel), for appellant.
    I. Appellant had the right under federal and state law to opt out of the Section 8 program. (Salute v Stratford Greens Garden Apts., 136 F3d 293; People To End Homelessness, Inc. v Develco Singles Apts. Assoc., 339 F3d 1; Mackey v 1525 Dorchester Co., 196 Misc 2d 662; 17th Holding v Rivera, 195 Misc 2d 531; Cipollone v Liggett Group, Inc., 505 US 504; American Ins. Assn. v Garamendi, 539 US 396; Sanango v 200 E. 16th St. Hous. Corp., 15 AD3d 36; Hoffman Plastic Compounds, Inc. v NLRB, 535 US 137; Tann Realty Co. v Thompson, 112 Misc 2d 392; Kulick & Rheingold Realty, LLC v Montero, 8 Misc 3d 1007[A], 2005 NY Slip Op 50974[U].) II. Section 8 benefits are not part of the rent-stabilized tenancy. (Kulick & Rheingold Realty, LLC v Montero, 8 Misc 3d 1007[A], 2005 NY Slip Op 50974[U]; Mackey v 1525 Dorchester Co., 196 Misc 2d 662; 17th Holding v Rivera, 195 Misc 2d 531; Matter of Century Operating Corp. v Popolizio, 60 NY2d 483; Matter of Missionary Sisters of Sacred Heart, III. v New York State Div. of Hous. & Community Renewal, 283 AD2d 284.) III. Plaintiff has no standing to assert claims against Diagonal Realty, LLC under the expired Housing Assistance Payments contract. (Board of Mgrs. of Alexandria Condominium v Broadway/72nd Assoc., 285 AD2d 422; Rosier v Brown, 158 Misc 2d 748.) IV. A landlord’s decision to opt out of the Section 8 program does not constitute discrimination under the J-51 statute. (Kulick & Rheingold Realty, LLC v Montero, 8 Misc 3d 1007[A], 2005 NY Slip Op 50974[U]; Salute v Stratford Greens Garden Apts., 136 F3d 293) V. Civil Court has jurisdiction to determine Sonia Rosario’s claims. (Post v 120 E. End Ave. Corp., 62 NY2d 19; Kanner v West 15th St. Owners, 236 AD2d 341; Ranter v East 62nd St. Assoc., 111 AD2d 26; Subkoff v Broadway-13th Assoc., 139 Misc 2d 176.) VI. Plaintiff was not entitled to a preliminary injunction. (Uniformed Firefighters Assn. of Greater N.Y. v City of New York, 79 NY2d 236; Wm. Rosen Monuments v Madonick Monuments, 62 AD2d 1053; Paine & Chriscott v Blair House Assoc., 70 AD2d 571; St. Paul Fire & Mar. Ins. Co. v York Claims Serv., 308 AD2d 347; Rosa Hair Stylists v Jaber Food Corp., 218 AD2d 793.)

      Legal Aid Society, New York City (Judith Goldiner, Steven Banks, Adriene Holder and Scott Rosenberg of counsel), for respondent.
    I. The Rent Stabilization Code requires continued acceptance of Section 8 subsidy payments as a “term and condition” of a rent-stabilized lease. (Roxborough Apts. Corp. v Becker, 296 AD2d 358; East 11th St. Assoc. v Breslow, 174 Misc 2d 994, 256 AD2d 110; Mehlman Mgt. Corp. v Meyers, 51 AD2d 949; Tann Realty Co. v Thompson, 112 Misc 2d 392; Matter of Fishel v New York City Conciliation & Appeals Bd., 123 Misc 2d 841; 7 Highland Mgt. Corp. v McCray, 9 Misc 3d 129[A], 2005 NY Slip Op 51530[U]; Licht v Moses, 11 Misc 3d 76; Kulick & Rheingold Realty, LLC v Montero, 8 Misc 3d 1007[A], 2005 NY Slip Op 50974[U]; People To End Homelessness, Inc. v Develco Singles Apts. Assoc., 339 F3d 1; Mackey v 1525 Dorchester Co., 196 Misc 2d 662.) II. The United States housing act does not preempt

      New York State’s Rent Stabilization Code. (California Fed. Sav. & Loan Assn. v Guerra, 479 US 272; Balbuena v IDR Realty LLC, 6 NY3d 338; Rowe v Pierce, 622 F Supp 1030; Independence Park Apts. v United States, 449 F3d 1235; Topa Equities, Ltd. v City of Los Angeles, 342 F3d 1065; Matter of Mott v New York State Div. of Hous. & Community Renewal, 211 AD2d 147; Sanango v 200 E. 16th St. Hous. Corp., 15 AD3d 36; Chevron U.S.A. Inc. v Natural Resources Defense Council, Inc., 467 US 837; Crosby v National Foreign Trade Council, 530 US 363; Salute v Stratford Greens Garden Apts., 136 F3d 293.) III. Section 11-243 of the Administrative Code of the City of New York requires recipients of J-51 tax abatements to accept Section 8 subsidies. (Cosmopolitan Assoc., L.L.C. v Fuentes, 11 Misc 3d 37.) IV. The Supreme Court was the appropriate forum for full resolution of this matter. (7 Highland Mgt. Corp. v McCray, 9 Misc 3d 129[A], 2005 NY Slip Op 51530[U]; North Waterside Redevelopment Co. v Febbraro, 256 AD2d 261; Manhattan Parking Sys.-Serv. Corp. v Murray House Owners Corp., 211 AD2d 534; Post v 120 E. End Ave. Corp., 62 NY2d 19.) V. Having consented, defendant may not now challenge conversion of plaintiff’s motion to one for summary judgment.

      Andrew M. Cuomo, Attorney General, New York City (Michelle Aronowitz, Barbara D. Underwood, Ann Zybert and Gary Con-nor of counsel), for New York State Division of Housing and Community Renewal, amicus curiae.
    I. A landlord’s acceptance of Section 8 rent subsidy payments as part of a rent-stabilized tenant’s lease is a term of the lease that must be continued in a renewal lease pursuant to New York’s Rent Stabilization Code. (Manocherian v Lenox Hill Hosp., 84 NY2d 385; Matter of David v New York City Conciliation & Appeals Bd., 59 NY2d 714; Roxborough Apts. Corp. v Becker, 296 AD2d 358; Matter of Fishel v New York City Conciliation & Appeals Bd., 123 Misc 2d 841; Tann Realty Co. v Thompson, 112 Misc 2d 392; 7 Highland Mgt. Corp. v McCray, 9 Misc 3d 129[A], 2005 NY Slip Op 51530[U]; Matter of Century Operating Corp. v Popolizio, 60 NY2d 483; Spaeda v Bakirtjy, 186 Misc 2d 557; Jandson Realty Corp. v Rogers, 192 Misc 2d 505.) II. Section 8’s eviction protection provision, 42 USC § 1437f (d) (1) (B) (ii), does not preempt Rent Stabilization Code (9 NYCRR) § 2522.5 (g) (1). (English v General Elec. Co., 496 US 72; New York Telephone Co. v New York State Dept. of Labor, 440 US 519; Balbuena v IDR Realty LLC, 6 NY3d 338; New York State Conference of Blue Cross & Blue Shield Plans v Travelers Ins. Co., 514 US 645; Jones v Rath Packing Co., 430 US 519; Rice v Santa Fe Elevator Corp.,
      331 US 218; Loretto v Teleprompter Manhattan CATV Corp., 458 US 419; Independence Park Apts. v United States, 449 F3d 1235; Kargman v Sullivan, 552 F2d 2; Ray v Atlantic Richfield Co., 435 US 151.)

      Borah, Goldstein, Altschuler, Nahins & Goidel, PC., New York City ((Jeffrey R. Metz of counsel), for Rent Stabilization Association of New York City, Inc., amicus curiae.
    Pursuant to the Supremacy Clause of the United States Constitution, the federal law allowing an owner to decline to participate in the Section 8 program, or to “opt out” of the program, must control. (Balbuena v IDR Realty LLC, 6 NY3d 338; Jones v Rath Packing Co., 430 US 519; Shaw v Delta Air Lines, Inc., 463 US 85; Cipollone v Liggett Group, Inc., 505 US 504; Manno v American Gen. Fin. Co., 439 F Supp 2d 418; Rice v Santa Fe Elevator Corp., 331 US 218; Malone v White Motor Corp., 435 US 497; Ingersoll-Rand Co. v McClendon, 498 US 133; Salute v Stratford Greens Garden Apts., 136 F3d 293; Knapp v Eagle Prop. Mgt. Corp., 54 F3d 1272.)

      South Brooklyn Legal Services, Inc., Brooklyn {John C. Gray and Edward Josephson of counsel), for Pratt Center for Community Development, amicus curiae.
    I. The holding of the Appellate Division advances the purposes of both the Rent Stabilization Code and federal Housing Law. (Manocherian v Lenox Hill Hosp., 84 NY2d 385.) II. Reversal of the holding below would set a precedent limiting New York’s ability to respond to the current housing crisis. (Balbuena v IDR Realty LLC, 6 NY3d 338; Matter of Holtzman v Oliensis, 91 NY2d 488; Medtronic, Inc. v Lohr, 518 US 470; Independence Park Apts. v United States, 449 F3d 1235; Kargman v Sullivan, 552 F2d 2; Conille v Secretary of Hous. & Urban Dev., 840 F2d 105; Topa Equities Ltd. v City of Los Angeles, 342 F3d 1065; Matter of Mott v New York State Div. of Hous. & Community Renewal, 211 AD2d 147; Catco Assoc., L.P. v Goodwin, 7 Misc 3d 1020[A], 2005 NY Slip Op 50679[U].)

      Michael A. Cardozo, Corporation Counsel, New York City (Edward F.X. Hart and Jane L. Gordon of counsel), for New York City Council and others, amici curiae.
    The courts below correctly recognized that, in amending the Section 8 voucher program to eliminate so-called “endless leases,” Congress did not preempt local laws of general application that protect tenants. (Cosmopolitan Assoc., L.L.C. v Fuentes, 11 Misc 3d 37; Manocherian v Lenox Hill Hosp., 84 NY2d 385; Medtronic, Inc.

      v Lohr, 518 US 470; New York State Conference of Blue Cross & Blue Shield Plans v Travelers Ins. Co., 514 US 645; Balbuena v IDR Realty LLC, 6 NY3d 338; United States v Shimer, 367 US 374; Topa Equities, Ltd. v City of Los Angeles, 342 F3d 1065.)

      Cadwalader, Wickersham & Taft LLP, New York City (Harry P. Cohen, Stacey A. Lara and Ryan J. Andreoli of counsel), and Susan A. Silverstein, Washington, D.C., for AARP Foundation Litigation, amicus curiae.
    I. The provisions of state and local law at issue here are not preempted by the 1996 and 1998 amendments to the Section 8 voucher program. (California Fed. Sav. & Loan Assn. v Guerra, 479 US 272; Pennsylvania Med. Socy. v Marconis, 942 F2d 842; Matter of Mott v New York State Div. of Hous. & Community Renewal, 211 AD2d 147; Drucker v Mauro, 30 AD3d 37, 7 NY3d 844; Pultz v Economakis, 8 Misc 3d 1022[A], 2005 NY Slip Op 51238[U]; Matter of David v New York City Conciliation & Appeals Bd., 59 NY2d 714.) II. Reversal of the Appellate Division’s decision would undermine the purpose of the Section 8 voucher program.
   OPINION OF THE COURT

Pigott, J.

We hold that a landlord’s determination to accept federal “Section 8” rent subsidy payments is a “term and condition” of a lease executed with a rent-stabilized tenant, within the meaning of Rent Stabilization Code (9 NYCRR) § 2522.5 (g) (1), so that a renewal lease must continue with that term and condition. Moreover, 42 USC § 1437f (d) (1) (B) (ii) does not preempt a rent-stabilized tenant’s right to a renewal lease that includes the landlord’s acceptance of a Section 8 subsidy.

Respondent Sonia Rosario has lived in a rent-stabilized apartment in New York City, owned by appellant Diagonal Realty, LLC, for over 30 years. For most of that time, she has received Section 8 benefits from the New York City Housing Authority (NYCHA). The Section 8 system (Tenant Based Assistance: Housing Choice Voucher Program) is a federal program that provides housing assistance to eligible low-income families by giving subsidies to landlords who rent apartments to them {see 42 USC § 1437f). Once NYCHA has issued a Section 8 voucher to an eligible family, and the family has found a landlord willing to accept it, the landlord and NYCHA must sign a Housing Assistance Payments (HAP) contract {see 24 CFR 982.451). The HAP contract specifies the terms of the landlord’s participation in the Section 8 program. Section 8 tenants make rental payments based on their ability to pay, and NYCHA issues subsidy payments to the landlords to cover the balance of the agreed rent.

In February 2003, Diagonal informed NYCHA that it no longer wished to participate in the Section 8 program with respect to Rosario, and refused NYCHA’s subsidy payments for her apartment. It then commenced a proceeding in the Civil Court of the City of New York to evict Rosario for nonpayment of rent.

Rosario and several other similarly situated plaintiffs commenced these actions against their respective landlords in Supreme Court, seeking a declaration that defendant landlords may not opt out of the Section 8 program. Supreme Court consolidated the actions and granted summary judgment in plaintiffs’ favor, declaring that defendants “are obligated to continue accepting [plaintiffs’] section 8 rent subsidies and are not permitted to opt out of the federal section 8 rent subsidy program” (9 Misc 3d 681, 704 [2005]).

The Appellate Division affirmed, and then granted Diagonal’s motion for leave to appeal to this Court. We now affirm.

New York State’s Rent Stabilization Code requires that landlords provide renewal leases requested by rent-stabilized tenants (9 NYCRR 2522.5 [b] [1]), and that every renewal

“shall be on the same terms and conditions as the expired lease, except where the owner can demonstrate that the change is necessary in order to comply with a specific requirement of law or regulation applicable to the building or to leases for housing accommodations subject to the RSL, or with the approval of the DHCR” (9 NYCRR 2522.5 [g] [1] [emphasis added]).

Diagonal does not claim that any of the exceptions apply, and the first question before us therefore is whether a landlord’s prior acceptance of a Section 8 subsidy is a term of a lease that must be continued on a renewal lease. We hold that it is.

Landlords who accept Section 8 payments are required to include, in the leases that they sign with Section 8 beneficiaries, a “tenancy addendum” prescribed by the United States Department of Housing and Urban Development (HUD) {see 24 CFR 982.305 [a] [3]; 982.308 [b] [2]) or, if the landlord uses its own lease form, a “word-for-word” addition of the addendum’s text (24 CFR 982.308 [f] [2]). The tenancy addendum must specify, among other things, that “[t]he owner is leasing the contract unit to the tenant for occupancy by the tenant’s family with assistance for a tenancy under the Section 8 housing choice voucher program” and that “[t]he tenant is not responsible for paying the portion of rent to [the] owner covered by the . . . housing assistance payment.” By requiring such a tenancy addendum, the code makes acceptance of Section 8 subsidies a term of every lease that a landlord signs with a Section 8 tenant. Consequently, the obligation to accept Section 8 subsidy payments must continue in a renewal lease, as required by Rent Stabilization Code (9 NYCRR) § 2522.5 (g) (1).

Diagonal suggests that this section of the Rent Stabilization Code is inapplicable because, when Rosario first signed a lease, she was not a Section 8 beneficiaiy. But 9 NYCRR 2522.5 (g) (1) makes no mention of a tenant’s initial lease. It requires that a renewal lease “be on the same terms and conditions as the expired lease” — not necessarily the original lease. “Expired lease” means the lease that will have just expired when the renewal lease is to become effective.

Diagonal further argues that the Rent Stabilization Code protections are preempted by federal law, citing 42 USC § 1437f. Section 1437f restricts the ability of landlords receiving Section 8 subsidies to evict tenants. It provides that “during the term of the lease, the owner shall not terminate the tenancy except for serious or repeated violation of the terms and conditions of the lease, for violation of applicable Federal, State, or local law, or for other good cause” (42 USC §. 1437f [d] [1] [B] [ii]). The phrase “during the term of the lease” was added on October 21, 1998 (effective permanently) (Pub L 105-276, 112 US Stat 2461, 2607). Before that date, landlords participating in the Section 8 program could not evict a tenant without establishing good cause, even if the tenant was at the end of a lease term; this was commonly referred to as the “endless lease rule.” Diagonal contends that the 1998 amendment allows landlords receiving Section 8 subsidies to terminate a tenancy without cause when the lease term is over, and that it preempts New York law requiring landlords to renew — with the same terms and conditions— rent-stabilized tenants’ leases.

In deciding whether state law is preempted by federal law, the Court’s “sole task is to ascertain the intent of Congress” (California Fed. Sav. & Loan Assn. v Guerra, 479 US 272, 280 [1987]; see also Guice v Charles Schwab & Co., 89 NY2d 31, 39 [1996]).

“Congressional preemptive intent may be discerned in three ways: (1) expressly in the language of the Federal statute; (2) implicitly, when the Federal legislation is so comprehensive in scope that it is inferable that Congress intended to fully occupy the ‘field’ of its subject matter; or (3) implicitly, when State law actually ‘conflicts’ with Federal law” (Drattel v Toyota Motor Corp., 92 NY2d 35, 42 [1998]; see also Guice, 89 NY2d at 39; Barnett Bank of Marion Cty., N. A. v Nelson, 517 US 25, 31 [1996]).

Diagonal’s preemption theory is belied by the legislative history, which shows that no preemption was intended. Indeed, the Senate Committee on Banking, Housing, and Urban Affairs could not have made the point more clearly when it reported that it did “not anticipate that the repeal of [the ‘endless lease’ rule] will adversely affect assisted households because protections will be continued under State, tribal, and local tenant laws as well as Federal protections under the Fair Housing Act and the Americans with Disabilities Act” (S Rep 195, 104th Cong, 1st Sess, at 32; S Rep 21, 105th Cong, 1st Sess, at 36 [identical language in both Senate Reports] [emphasis added]). The intent of Congress was to “streamline and simplify the [Section 8] program by reducing the involvement of the Federal government” and housing agencies (S Rep 195 at 31-32; S Rep 21 at 36). In other words, the legislative intent was to remove federal obstacles to landlords’ participation in the Section 8 program.

HUD, moreover, introduced regulatory language clarifying that “[n]othing in part 982 [the federal regulations governing the Section 8 program] is intended to pre-empt operation of State and local laws that prohibit discrimination against a Section 8 voucher-holder because of status as a Section 8 voucher-holder” (24 CFR 982.53 [d]). This language was added in direct response to the 1998 amendments (see 64 Fed Reg 26632, 26641 [1999]). Thus, no intent to preempt state law is expressed in 42 USC § 1437f; in fact, the contrary is evident.

Turning to the question of implied preemption, it is clear that federal law does not so occupy the field of housing law that there is no room for state regulation. To the contrary, the states “have broad power to regulate housing conditions in general and the landlord-tenant relationship in particular” (Loretto v Teleprompter Manhattan CATV Corp., 458 US 419, 440 [1982]). In this area, federal and state law depend on each other; neither excludes the other.

Finally, there is no conflict between federal and state law such as would suggest implied preemption. First, it is not impossible to comply with both federal and state law in this area; a law-abiding landlord receiving Section 8 subsidies will follow both 42 USC § 1437f (tenants in general will not be evicted without good cause during their leases) and Rent Stabilization Code (9 NYCRR) § 2522.5 (g) (1) (rent-stabilized tenants’ leases will be renewed with the same terms and conditions). Second, Rent Stabilization Code (9 NYCRR) § 2522.5 (g) (1) is no obstacle to accomplishing and executing the purpose of 42 USC § 1437f. The state regulation applies only to landlords of rent-stabilized property. The effectiveness of 42 USC § 1437f — as amended in 1998 — in encouraging free-market landlords to participate in the Section 8 program is unaffected by the state regulation. We conclude that it was not the intent of Congress, when it ended the so-called endless lease rule, to remove state and local law protections afforded to Section 8 recipients.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be affirmed, with costs. The certified question should not be answered upon the ground that it is unnecessary.

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

Order, insofar as appealed from, affirmed, etc.

      . Her daughter and two grandchildren reside with her.

      . The New York State Division of Housing and Community Renewal (DHCR) states in its amicus brief that it has abandoned the contrary view it expressed in Matter of Highland Management Corp. (No. QB10041RO, DHCR, Nov. 6, 2002).

      . Rent Stabilization Code (9 NYCRR) § 2523.5 (a) uses the clearer term “expiring lease” in the same context.

      . The phrase was first added on April 26, 1996, effective for fiscal year 1996 only (Pub L 104-134, 110 US Stat 1321, 1321-281).

      . Diagonal receives a “J-51” tax abatement, pursuant to Administrative Code of the City of NY § 11-243. That section contains an antidiscrimination provision prohibiting landlords that receive J-51 abatements from discriminating against tenants who receive, or are eligible to receive, Section 8 assistance (see Administrative Code § 11-243 [k]). This local law is not preempted by federal Section 8 law for the same reasons that Rent Stabilization Code (9 NYCRR) § 2522.5 (g) (1) is not preempted (see especially 24 CFR 982.53 [d]).


text:
    [861 NE2d 102, 828 NYS2d 287]
    Maria C. Cruz, Appellant, v New York City Transit Authority, Respondent.
    Decided January 9, 2007

      APPEARANCES OF COUNSEL

      Ephrem J. Wertenteil, New York City, for appellant.

      Wallace D. Gossett, Brooklyn, and Anita Isola for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, for the reasons stated in the memorandum by the Appellate Division (31 AD3d 688 [2006]).

Concur: Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith and Pigott.


text:
    Gisele Ambroise, Appellant, v New York City Transit Authority, Respondent.
    Submitted November 13, 2006;
    decided January 9, 2007
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that denied appellant’s motion to renew, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Charmayne Coates, Appellant, v Gregory Lee, Respondent.
    Submitted November 27, 2006;
    decided January 9, 2007
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Hunts Point Terminal Produce Cooperative Association, Inc., Appellant, v New York City Economic Development Corporation et al., Respondents.
    Submitted November 20, 2006;
    decided January 9, 2007
   Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    Muriel Siebert & Co., Inc., Appellant, v Intuit Inc., Respondent.
    Submitted January 2, 2007;
    decided January 9, 2007
   Motion by New York State Trial Lawyers Association for leave to file a brief amicus curiae on the appeal herein granted. Three copies of the brief may be served and an original and 24 copies filed within seven days.


text:
    Julius R. Nasso, Appellant, v Loeb & Loeb, LLP, Respondent.
    Submitted November 13, 2006;
    decided January 9, 2007
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of John Park, Respondent, v John A. Kapica et al., Appellants.
    Submitted January 2, 2007;
    decided January 9, 2007
   Motion by New York State Conference of Mayors and Municipal Officials for leave to file a brief amicus curiae on the appeal herein granted. Two copies of the brief may be served and 24 copies filed within seven days.


text:
    In the Matter of John Park, Appellant, v John A. Kapica et al., Respondents.
    Submitted January 2, 2007;
    decided January 9, 2007
   Motion by New York State Conference of Mayors and Municipal Officials for leave to file a brief amicus curiae on the appeal herein granted. Two copies of the brief may be served and 24 copies filed within seven days.


text:
    Eric Parker, Appellant, v Mobil Oil Corporation et al., Respondents. (And Third-Party Actions.)
    Submitted December 4, 2006;
    decided January 9, 2007
   Motion for reargument denied [see 7 NY3d 434].


text:
    Ryszard Pilch, Appellant, v Board of Education of City of New York et al., Respondents.
    Submitted November 13, 2006;
    decided January 9, 2007
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    Frances Ragusa, Appellant, v Philip Ragusa, Respondent.
    Submitted November 13, 2006;
    decided January 9, 2007
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Chaskie J. Rosenberg, Appellant, v Metlife, Inc., et al., Respondents.
    Submitted December 18, 2006;
    decided January 9, 2007
   Motion by National Employment Lawyers Association/New York for an order permitting movant to participate in oral argument on consideration of the certified question denied.


text:
    Chaskie J. Rosenberg, Appellant, v Metlife, Inc., et al., Respondents.
    Submitted December 18, 2006;
    decided January 9, 2007
   Motion by the Securities Industry and Financial Markets Association for leave to appear amicus curiae on consideration of the certified question herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief may be served and 24 copies filed within seven days.


text:
    Chaskie J. Rosenberg, Appellant, v Metlife, Inc., et al., Respondents.
    Submitted January 2, 2007;
    decided January 9, 2007
   Motion by Liddle & Robinson, L.L.P. for leave to appear amicus curiae on consideration of the certified question herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief may be served and 24 copies filed within seven days.


text:
    In the Matter of Sabina Jessica S. Suffolk County Department of Social Services, Respondent; Pasquale S., Appellant.
    Submitted December 11, 2006;
    decided January 9, 2007
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Leroy J. Taylor, Respondent, v Tammy J. Staples, Appellant. (Proceeding No. 1.) In the Matter of Tammy Staples, Appellant, v Leroy Taylor, Respondent. (Proceeding No. 2.)
    Submitted November 20, 2006;
    decided January 9, 2007
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed the denial of appellant’s motion to vacate an order of Family Court, dismissed upon the ground that such portion of the Appellate Division order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of the Estate of Margaret M. Tomeck, Deceased. Edward M. Tomeck, as Executor of Margaret M. Tomeck, Deceased, Respondent-Appellant; Robert Christopher, as Commissioner of Social Services of Saratoga County, Appellant-Respondent, et al., Respondent.
    Submitted December 18, 2006;
    decided January 9, 2007
   Motion by Andrew M. Cuomo, as Attorney General of the State of New York, for an order permitting movant to participate in oral argument of the appeal granted.


text:
    U.S. Bank National Association, Respondent, v APP International Finance Company, B.V., et al., Appellants. (And Another Action.)
    Submitted November 13, 2006;
    decided January 9, 2007
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    [862 NE2d 472, 830 NYS2d 525]
    In the Matter of the Claim of Thomas Somers, Respondent, v Demco et al., Respondents, and Special Disability Fund, Appellant. Workers’ Compensation Board, Respondent.
    Decided January 11, 2007
    APPEARANCES OF COUNSEL

      Melissa A. Day, Albany, for appellant.

      Thomas P. Etzel, Buffalo, for State Insurance Fund, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed with costs.

In order to promote the employment of disabled people, the Legislature created the Special Disability Fund. That Fund reimburses carriers and employers for part of their liability under the Workers’ Compensation Law to a worker who becomes permanently disabled, if that worker was previously suffering from a “permanent physical impairment,” and the preexisting impairment causes the permanent disability to be “materially and substantially greater” than it would have been otherwise (Workers’ Compensation Law § 15 [8] [a], [d], [h]).

Workers’ Compensation Law § 15 (8) (f) provides that, in cases where the Special Disability Fund is required to pay for reimbursement, “notice or claim of the right to such reimbursement shall be filed with the [workers’ compensation] board in writing prior to the final determination that the resulting disability is permanent, but in no case more than one hundred four weeks after the date of disability or death or fifty-two weeks after the date that a claim for compensation is filed with the chair, whichever is later, or in the event of the reopening of a case theretofore closed, no later than the determination of permanency upon such reopening” (emphasis added).

At issue here is the interpretation of the emphasized clause. A worker’s claim was closed, without a finding of permanent disability, after the 104-week period had expired, but the case was later reopened. The carrier, the State Insurance Fund, filed a claim with the Special Disability Fund after the reopening. The case ultimately resulted in a determination of permanency, and it is conceded that the Special Disability Fund has liability if the claim was timely.

As the Special Disability Fund points out, applying the final clause of section 15 (8) (f) to this case produces a somewhat odd result: A claim that became time-barred on the expiration of the statutory 104-week period is revived solely because the workers’ compensation case was subsequently closed and then reopened. The Fund argues that, to avoid this result, we should read the final clause as applicable only to cases that are closed before the expiration of the 104-week period, and reopened thereafter (cf. Matter of Hirschhorn v L & N Fruit & Produce, 43 AD2d 1007, 1008 [3d Dept 1974] [Greenblott, J., concurring]). This reading, however, is not supported by the language of the statute and would undermine its purpose — to permit an application to the Fund where a claim that initially seemed unlikely to result in a finding of permanent disability turns out, on reopening, to be a more serious claim than it first appeared. We therefore interpret section 15 (8) (f) to provide that the 104-week limitation does not apply to a case that has been closed without a finding of permanent disability and then reopened, even when the closure occurs more than 104 weeks after the date of disability (see Matter of Burch v Hawkins, 9 AD2d 6, 8 [3d Dept 1959]). The Appellate Division was correct in holding the State Insurance Fund’s claim to be timely.

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

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, in a memorandum.


text:
    Mitchell Benesowitz, Appellant, v Metropolitan Life Insurance Company et al., Respondents.
    Submitted January 2, 2007;
    decided January 11, 2007
   Certification of question by the United States Court of Appeals for the Second Circuit, pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), accepted and the issues presented are to be considered after briefing and argument.

Concur: Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith and Pigott.


text:
    In the Matter of Hasaun Grigger, Appellant, v Glenn S. Goord, as Commissioner of Correctional Services, Respondent.
    Submitted November 20, 2006;
    decided January 11, 2007
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Craig Joosten, Sr., Appellant, v Carol Joosten, Also Known as Carol Boothe, Respondent.
    Submitted November 20, 2006;
    decided January 11, 2007
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Mauhoi Tung, Appellant, v Henry Chiu, D.D.S., Doing Business as Mott Street Dental Services, P.C., Respondent.
    Submitted December 4, 2006;
    decided January 11, 2007
   Motion for reargument of motion for leave to appeal denied [see 7 NY3d 861].


text:
    Muriel Siebert & Co., Inc., Appellant, v Intuit Inc., Respondent.
    Submitted January 8, 2007;
    decided January 11, 2007
   Motion by the Association of the Bar of the City of New York for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    P & N Tiffany Properties, Inc., Appellant, v Village of Tuckahoe, Respondent.
    Submitted January 8, 2007;
    decided January 11, 2007
   Motion by Vivian L. Hausch to withdraw as counsel for appellant on the appeal herein granted.


text:
    In the Matter of John Park, Respondent, v John A. Kapica et al., Appellants. In the Matter of John Park, Appellant, v John A. Kapica et al., Respondents.
    Submitted January 8, 2007;
    decided January 11, 2007
   Motion by Police Conference of New York, Inc. for leave to file a brief amicus curiae on the appeals herein granted. Three copies of a brief with amended caption may be served and an original and 24 copies filed within seven days.