author: Chief Judge Lippman.

text:
    [15 NE3d 1199, 992 NYS2d 190]
    Christopher Hamilton, Appellant, v John Miller et al., Respondents. Shawn Giles, Also Known as Shawn Anthony Coffee, Appellant, v A. Gi Yi et al., Respondents, et al., Defendants.
    Argued May 7, 2014;
    decided June 12, 2014

      POINTS OF COUNSEL

      Athari & Associates, LLC, Utica (Mo J. Athari of counsel), for appellant in the first above-entitled action.
    I. Judicial notice of 42 USC § 4851 affords the non sui juris plaintiff injured by lead poisoning the necessary rebuttable presumptions. (Walton v Albany Community Dev. Agency, 279 AD2d 93; Adams v Rizzo, 13 Misc 3d 1235[A], 2006 NY Slip Op 52135[U]; Robinson v Bartlett, 95 AD3d 1531; People v Wesley, 83 NY2d 417; Chapman v Silber, 97 NY2d 9; Matter of Viemeister, 179 NY 235; DeMatteo v DeMatteo, 194 Misc 2d 640; Van Wert v Randall, 100 AD3d 1079; Matter of William A., 13 Misc 3d 367; Parker v Mobil Oil Corp., 7 NY3d 434.) II. Plaintiff was entitled to a protective order as plaintiff has already made a prima facie case of causation as a matter of law. (Adams v Rizzo, 13 Misc 3d 1235[A], 2006 NY Slip Op 52135[U]; Gayle v City of New York, 92 NY2d 936; Robinson v Bartlett, 95 AD3d 1531; Juarez v Wavecrest Mgt. Team, 88 NY2d 628; Parker v Mobil Oil Corp., 7 NY3d 434; Nawrocki v Coastal Corp., 45 AD3d 1341; Walton v Albany Community Dev. Agency, 279 AD2d 93; Matter of New York City Coalition to End Lead Poisoning v Vallone, 100 NY2d 337; Williamsburg Around the Bridge Block Assn. v Giuliani, 223 AD2d 64; Rivera v City of New York, 11 NY2d 856.) III. Plaintiff’s particulars were sufficient to place the landlord defendants on notice to properly prepare a defense. (Graves v County of Albany, 278 AD2d 578; Jakubowski v Lengen, 86 AD2d 398; Lipin v Bender, 84 NY2d 562; Hoenig v Westphal, 52 NY2d 605; Diamantstein v Friedman, 199 AD2d 458; Dorato v Schilp, 130 AD2d 348; Pierson v Yourish, 122 AD2d 202; Ciriello v Virgues, 156 AD2d 417; Kelly v Tarnowski, 213 AD2d 1054; Davidson v Steer/Peanut Gallery, 277 AD2d 965.)

      Ward Greenberg Heller & Reidy LLP, Rochester (Eric J. Ward, Thomas E. Reidy, and Joshua M. Agins of counsel), for Jules Musinger and others, respondents in the first above-entitled action.
    I. The trial court properly refused to take judicial notice of 42 USC § 4851 as law or fact. (Pfleuger v Pfleuger, 304 NY 148; Hardy v Sicuranza, 133 AD2d 138; Sweet v Sheahan, 235 F3d 80; Skerritt v Bach, 23 AD3d 1080; Brown v Maple3, LLC, 88 AD3d 224; Hotel Dorset Co. v Trust for Cultural Resources of City of N.Y., 46 NY2d 358; Bethlehem Steel Corp. v Board of Educ. of City School Dist. of Lackawanna, 61 AD2d 147; Hunter v New York, Ontario & W. R.R. Co., 116 NY 615; Butler v Stagecoach Group, PLC, 72 AD3d 1581; Sleasman v Sherwood, 212 AD2d 868.) II. The trial court providently exercised its discretion in granting defendants’ motion to compel and preclude under the express provisions of 22 NYCRR 202.17. (Andon v 302-304 Mott St. Assoc., 94 NY2d 740; Brady v Ottaway Newspapers, 63 NY2d 1031; Those Certain Underwriters at Lloyds, London v Occidental Gems, Inc., 11 NY3d 843; Kavanagh v Ogden Allied Maintenance Corp., 92 NY2d 952; Giles v Yi, 105 AD3d 1313; Adams v Rizzo, 13 Misc 3d 1235[A], 2006 NY Slip Op 52135[U]; Nero v Kendrick, 100 AD3d 1383; Marable v Hughes, 38 AD3d 1344; Jessica H. v Spagnolo, 41 AD3d 1261; Davidson v Steer/Peanut Gallery, 277 AD2d 965.)

      The Law Offices of Sliwa & Lane, Buffalo (Stanley J. Sliwa of counsel), for John Miller and another, respondents in the first above-entitled action.
    I. A court is not required to take judicial notice of a federal statute that contains only legislative fact-findings where the underlying statutory provision is not relevant to any issue in the case. Thus, the trial court did not abuse its discretion as a matter of law in refusing to take judicial notice of such legislation. (Robinson v Bartlett, 95 AD3d 1531; Sleasman v Sherwood, 212 AD2d 868; Hunter v New York, Ontario & W. R.R. Co., 116 NY 615; Town of Massena v Niagara Mohawk Power Corp, 45 NY2d 482; Majauskas v Majauskas, 61 NY2d 481; Brady v Ottaway Newspapers, 63 NY2d 1031; Matter of Von Bulow, 63 NY2d 221; Patron v Patron, 40 NY2d 582; Van Wert v Randall, 100 AD3d 1079; Pfleuger v Pfleuger, 304 NY 148.) II. Special Term did not abuse its discretion in requiring plaintiff to produce reports reflecting only those injuries actually incurred by him and further causally connecting these injuries to exposure to lead-based paint. (Bates Adv. USA, Inc. v 498 Seventh, LLC, 7 NY3d 115; Glenbriar Co. v Lipsman, 5 NY3d 388; Those Certain Underwriters at Lloyds, London v Occidental Gems, Inc., 11 NY3d 843; Andon v 302-304 Mott St. Assoc., 94 NY2d 740; Kavanagh v Ogden Allied Maintenance Corp., 92 NY2d 952; Brady v Ottaway Newspapers, 63 NY2d 1031; Small v Lorillard Tobacco Co., 94 NY2d 43; Matter of U. S. Pioneer Elecs. Corp. [Nikko Elec. Corp. of Am.], 47 NY2d 914; Matter of De Zimm v Connelie, 64 NY2d 860; Giles v Yi, 105 AD3d 1313.)

      Athari & Associates, LLC, Utica (Mo J. Athari of counsel), for appellant in the second above-entitled action.
    I. Neither CPLR 3121 nor 22 NYCRR 202.17 compels plaintiff to produce a “medical report,” prove “causation,” and amend plaintiffs bill of particulars. (Graves v County of Albany, 278 AD2d 578; Caldwell v Cablevision Sys. Corp., 20 NY3d 365; Jakubowski v Lengen, 86 AD2d 398; Lipin v Bender, 84 NY2d 562; Kavanagh v Ogden Allied Maintenance Corp., 92 NY2d 952; Abbene v Chrysler Corp., 112 AD2d 964; Antonelli v Yale Materials Handling Corp., 239 AD2d 951; D'Amico v Manufacturers Hanover Trust Co., 182 AD2d 462; Hoenig v Westphal, 52 NY2d 605; Popick v Jonas, 112 AD2d 705.) II. The court failed to provide a reasonable basis for invoking CPLR 3103 (a). (O’Neill v Oakgrove Constr., 71 NY2d 521; Rothstein v City Univ. of N.Y., 194 AD2d 533; Lipin v Bender, 84 NY2d 562; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222.) III. Even assuming, arguendo, that it cannot be said that the court abused its discretion, at law, in invoking CPLR 3103 (a), there was sufficient proof in this record to establish causation at law. (Parker v Mobil Oil Corp., 7 NY3d 434; Gayle v City of New York, 92 NY2d 936; Robinson v Bartlett, 95 AD3d 1531; Juarez v Wavecrest Mgt. Team, 88 NY2d 628; Hamilton v Miller, 106 AD3d 1476; Walton v Albany Community Dev. Agency, 279 AD2d 93.)

      Hiscock & Barclay, LLP, Rochester (Gary H. Abelson and Sanjeev Devabhakthuni of counsel), for Gerald Breen, respondent in the second above-entitled action.
    I. The standard of review is whether the trial court abused its discretion. (Kavanagh v Ogden Allied Maintenance Corp., 92 NY2d 952; Marable v Hughes, 38 AD3d 1344; MS Partnership v Wal-Mart Stores, 273 AD2d 858.) II. Supreme Court properly exercised its discretion in granting defendant’s motion for an order directing plaintiff to produce medical reports detailing plaintiffs injuries that are causally related to exposure to lead-based paint and to amend his bill of particulars to reflect those injuries prior to an independent medical examination by defendant’s expert. (Marable v Hughes, 38 AD3d 1344; MS Partnership v Wal-Mart Stores, 273 AD2d 858; Adams v Rizzo, 13 Misc 3d 1235[A], 2006 NY Slip Op 52135[U]; Jessica H. v Spagnolo, 41 AD3d 1261; Hoenig v Westphal, 52 NY2d 605; Greuling v Breakey, 56 AD2d 540; Brooks v Hausauer, 51 AD2d 660; Kavanagh v Ogden Allied Maintenance Corp., 92 NY2d 952; Kelly v Tarnowski, 213 AD2d 1054; Ciriello v Virgues, 156 AD2d 417.) III. The court did not improperly invoke CPLR 3103. (Finnegan v Peter, Sr. & Mary L. Liberatore Family Ltd. Partnership, 90 AD3d 1676; Kavanagh v Ogden Allied Maintenance Corp., 92 NY2d 952.) IV There is no evidence in the record establishing as a matter of law that plaintiffs alleged injuries were caused by exposure to lead paint nor is that issue before this Court.

      Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains (Debra A. Adler and William Wingertzahn of counsel), for A. Gi Yi, respondent in the second above-entitled action.
    The order of the Fourth Department was properly made. (Nero v Kendrick, 100 AD3d 1383; Adams v Rizzo, 13 Misc 3d 1235[A], 2006 NY Slip Op 52135[U]; Breen v Laric Entertainment Corp., 2 AD3d 298; Hamer v City of New York, 106 AD3d 504; Marable v Hughes, 38 AD3d 1344; Jessica H. v Spagnolo, 41 AD3d 1261.)
   OPINION OF THE COURT

Chief Judge Lippman.

We hold that, in these personal injury actions, it was an abuse of discretion to order plaintiffs to produce, prior to the defense medical examinations, medical reports detailing a diagnosis of each injury alleged to have been sustained by plaintiffs and causally relating those injuries to plaintiffs’ exposure to lead-based paint.

I

Giles v Yi

In January 2009, plaintiff Shawn Giles commenced this personal injury action against A. Gi Yi and Gerald Breen, the alleged owners of certain rental units in which he lived as a child. Giles alleges that he was exposed to lead-based paint in those rental units and suffered numerous injuries as a result. Giles’s bill of particulars lists 34 injuries, including physical, neurological, and psychological problems.

In July 2011, defendant Breen served medical examination notices under CPLR 3121 and requested “copies of any reports of any physicians who have treated or examined the plaintiff’ in advance of the examination. Giles disclosed certain medical and educational records that showed that he had lead poisoning as a young child and that he subsequently had academic problems. These records, however, did not substantiate the 34 alleged injuries, nor did they causally relate the documented problems to lead poisoning.

Defendants Breen and Yi then moved to compel Giles to comply with 22 NYCRR 202.17 (b) (1) and produce medical reports detailing a diagnosis of the injuries allegedly caused by exposure to lead-based paint, or be precluded from introducing proof of these injuries at trial. Without this evidence, they argued, they would be required to pay for multiple medical professionals to examine plaintiff. They requested also that plaintiff be ordered to amend his bill of particulars to reflect those injuries actually sustained. Giles cross-moved for a protective order, arguing that defendants were prematurely requesting expert reports.

Supreme Court granted defendants’ motion and denied Giles’s motion. It ordered Giles “to produce . . . medical. . . reports of any treating or examining medical service provider detailing a diagnosis of any injuries alleged to have been sustained by the plaintiff . . . and causally relating said injuries to plaintiffs alleged exposure to lead-based paint,” and further, to amend his bill of particulars to reflect those injuries actually sustained, or be precluded from offering evidence of those injuries at trial.

The Appellate Division affirmed, holding that “Supreme Court did not abuse its broad discretion in directing plaintiff to produce a medical report containing a diagnosis of the alleged injuries sustained by plaintiff and causally relating such injuries to lead exposure before any CPLR 3121 examinations are conducted” (Giles v Yi, 105 AD3d 1313, 1316 [4th Dept 2013]). Justice Whalen dissented. In his view, the majority’s holding imposed unnecessary burdens on plaintiff and was akin to forcing him to retain an expert prior to the defense’s medical examination, something not required at that stage of the litigation (id. at 1319-1321).

The Appellate Division subsequently granted plaintiff leave to appeal and certified the question of whether the order was properly made (107 AD3d 1647 [2013], 2013 NY Slip Op 79247[U] [2013]).

Hamilton v Miller

Plaintiff Christopher Hamilton, represented by the same counsel as Giles, commenced a similar personal injury action in July 2009 against John Miller, David Miller, Jules Musinger, Doug Musinger, and Singer Associates, the alleged owners of properties in which Hamilton lived as a child. Hamilton filed a bill of particulars alleging that he suffered 58 injuries from exposure to lead-based paint at defendants’ properties. They included physical, psychological, psychiatric, and developmental problems.

During discovery, Hamilton disclosed certain medical and educational records that showed that he had lead poisoning as a young child and that he subsequently had academic, behavior, and speech problems. Just as in Giles, however, the records did not substantiate the 58 alleged injuries, nor did they causally relate them to lead poisoning.

Defendants’ noticed medical examinations and requested that Hamilton comply with 22 NYCRR 202.17 (b) (1) and provide medical reports from his treating or examining medical service providers diagnosing his injuries and causally relating them to lead-based paint. Hamilton claimed that he was not obligated to provide any further records.

Defendants moved to compel Hamilton to disclose the reports and to amend the bill of particulars to reflect those injuries actually sustained, or otherwise be precluded from introducing proof of his alleged injuries at trial. Hamilton cross-moved for a protective order under CPLR 3103 and for the court to take judicial notice under CPLR 4511 of a federal statute codifying Congress’s findings justifying the Residential Lead-Based Paint Hazard Reduction Act of 1992 (42 USC § 4851).

Supreme Court denied Hamilton’s motion and granted defendants’ motion, ordering Hamilton to produce medical reports of a treating or examining medical service provider detailing any injuries alleged to have been sustained as a result of defendants’ negligence and causally relating them to exposure to lead-based paint. The court further ordered that, should Hamilton fail to produce these records, he would be precluded from introducing proof of his injuries at trial. Finally, the court ordered Hamilton to amend his bill of particulars.

The Appellate Division affirmed (Hamilton v Miller, 106 AD3d 1476, 1478 [4th Dept 2013]), granted plaintiff leave to appeal, and certified the question of whether the order was properly made (107 AD3d 1648 [2013], 2013 NY Slip Op 79248[U] [2013]).

II

CPLR 3121 (a) provides that when a party’s mental or physical condition is in issue, any other party may serve on the party whose condition is in controversy notice “to submit to a physical, mental or blood examination by a designated physician.” A noticed party then is obligated under 22 NYCRR 202.17 (b) (1) to deliver:

“copies of the medical reports of those medical providers who have previously treated or examined the party seeking recovery. These shall include a recital of the injuries and conditions as to which testimony will be offered at the trial, referring to and identifying those X-ray and technicians reports which will be offered at the trial, including a description of the injuries, a diagnosis and a prognosis.”

In most personal injury cases, disclosure under this rule is straightforward. The injured plaintiff goes to the doctor for diagnosis and treatment. The doctor drafts a report. The plaintiff turns over the report to the defendant.

This case is more complicated. Plaintiffs allegedly suffered lead poisoning as children. Now adults, plaintiffs allege that their childhood exposure to lead caused them numerous injuries. It appears from the dearth of medical evidence in the record that plaintiffs may never have been treated for or diagnosed with many of the alleged injuries. This raises the question of what plaintiffs must disclose in order to comply with rule 202.17 (b) (1).

Plaintiffs argue that the rule requires them to turn over only those reports that currently exist from providers who have “previously treated or examined” them. They argue that they are not required to document or create medical evidence of every alleged injury. To the extent that plaintiffs are arguing that the rule does not obligate them to hire a medical provider to examine them and create a report solely for purposes of the litigations, we agree. Requiring a personal injury plaintiff to hire a medical professional to draft a report purely to satisfy 22 NYCRR 202.17 (b) (1) could make it prohibitively expensive for some plaintiffs to bring legitimate personal injury suits. Some plaintiffs may not be able to afford a medical examination or may not even have access to a doctor. Plaintiffs therefore need only produce reports from medical providers who have “previously treated or examined” them.

To the extent, however, that plaintiffs claim that they need to turn over only those medical reports that currently exist, we disagree. The rule obligates plaintiffs to provide comprehensive reports from their treating and examining medical providers— the reports “shall include a recital of the injuries and conditions as to which testimony will be offered at the trial” (22 NYCRR 202.17 [b] [1] [emphasis added]). Plaintiffs therefore cannot avoid disclosure simply because their treating or examining medical providers have not drafted any reports within the meaning of rule 202.17 (b) (1) (see Ciriello v Virgues, 156 AD2d 417, 418 [2d Dept 1989] [“(T)he fact that a report never was prepared does not obviate the party’s obligation under the rules”]; Davidson v Steer/Peanut Gallery, 277 AD2d 965, 965 [4th Dept 2000]; Pierson v Yourish, 122 AD2d 202, 203 [2d Dept 1986]). If plaintiffs’ medical reports do not contain the information required by the rule, then plaintiffs must have the medical providers draft reports setting forth that information (see id.). If that is not possible, plaintiffs must seek relief from disclosure and explain why they cannot comply with the rule (see 22 NYCRR 202.17 [j]).

We conclude therefore that Supreme Court abused its discretion in requiring plaintiffs to provide medical evidence of each alleged injury or otherwise be precluded from offering evidence of that injury at trial. Supreme Court’s motivation for granting that relief is understandable. Plaintiffs’ counsel filed boilerplate bills of particulars and then did not disclose medical records substantiating the alleged injuries. To that end, plaintiffs should amend their respective bills of particulars to reflect those injuries actually sustained. Nonetheless, although Supreme Court had wide, inherent discretion to manage discovery, foster orderly proceedings, and limit counsel’s gamesmanship (see Kavanagh v Ogden Allied Maintenance Corp., 92 NY2d 952, 954 [1998]), the ordered relief exceeded the court’s power.

Supreme Court also granted relief beyond that contemplated by 22 NYCRR 202.17 (b) (1) by requiring plaintiffs to produce, prior to the defense examination, a medical report causally relating plaintiffs’ injuries to lead paint exposure or be precluded from offering proof of such injuries at trial. The rule requires that the medical reports “include a recital of the injuries and conditions as to which testimony will be offered at the trial, . . . including a description of the injuries, a diagnosis and a prognosis.” There is no requirement that medical providers causally relate the injury to the defendant’s negligence or, in this case, the lead paint exposure.

If determining causation requires evidence from a medical professional, causation is more appropriately dealt with at the expert discovery phase and pursuant to CPLR 3101 (d). If defendants wish to expedite expert discovery, they can move in Supreme Court for amendment of the scheduling orders. Should plaintiffs fail to produce any evidence of causation, then defendants can move for and obtain summary judgment.

III

Supreme Court properly denied plaintiff Hamilton’s CPLR 4511 motion to take judicial notice of 42 USC § 4851. That provision contains Congress’s findings justifying legislation aimed at reducing lead — findings such as: “at low levels, lead poisoning in children causes intelligence quotient deficiencies, reading and learning disabilities, impaired hearing, reduced attention span, hyperactivity, and behavior problems”; and “the Federal Government must take a leadership role in building the infrastructure — including an informed public, State and local delivery systems, certified inspectors, contractors, and laboratories, trained workers, and available financing and insurance— necessary to ensure that the national goal of eliminating lead-based paint hazards in housing can be achieved as expeditiously as possible” (42 USC § 4851 [2], [8]). Hamilton apparently sought judicial notice of the federal provision in order to avoid having to prove general causation — that lead paint exposure can cause some or all of his alleged injuries.

CPLR 4511 allows a court to take notice of federal and foreign state law, not facts, that is relevant to a proceeding (CPLR 4511; Pfleuger v Pfleuger, 304 NY 148, 151 [1952]). The congressional findings in support of legislation seeking to reduce amounts of lead in homes, though codified in a federal statute, are not “law” that is relevant to Hamilton’s case. Taking judicial notice of them under CPLR 4511 would be inappropriate.

What Hamilton really wanted was to have Supreme Court take judicial notice of the fact that exposure to lead paint can cause injury. “To be sure, a court may take judicial notice of facts which are capable of immediate and accurate determination by resort to easily accessible sources of indisputable accuracy” (People v Jones, 73 NY2d 427, 431 [1989] [internal quotation marks omitted]). But general causation, at least in scientifically complex cases, is not such a fact. Hamilton needs to prove, through scientific evidence, that exposure to lead-based paint can cause the injuries of which he complains (see Parker v Mobil Oil Corp., 7 NY3d 434, 448 [2006]). He cannot avoid that burden simply because Congress, in statutory preambles, has opined on the dangers of lead-based paint.

Accordingly, in each case, the order of the Appellate Division should be modified, without costs, by remitting to Supreme Court for further proceedings in accordance with this opinion and, as so modified, affirmed, and the certified question answered in the negative.

Judges Graffeo, Read, Pigott, Rivera and Abdus-Salaam concur with Chief Judge Lippman; Judge Smith dissents and votes to affirm for the reasons stated in the memorandum of the Appellate Division (106 AD3d 1476 [2013]).

In Hamilton v Miller: Order modified, without costs, by remitting to Supreme Court, Monroe County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed, and certified question answered in the negative.

Judges Graffeo, Read, Pigott, Rivera and Abdus-Salaam concur with Chief Judge Lippman; Judge Smith dissents and votes to affirm for the reasons stated in the memorandum of the Appellate Division (105 AD3d 1313 [2013]).

In Giles v Yi: Order modified, without costs, by remitting to Supreme Court, Monroe County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed, and certified question answered in the negative.

      . Supreme Court dismissed the complaint as against the Miller defendants during the pendency of this appeal.

      . We note that prior to April 17, 1998, rule 202.17 (b) (1), which had required the plaintiff in advance of the examination to serve on all parties reports of physicians who had previously treated or examined the plaintiff, also required the reports to “include a ‘detailed recital of the injuries’ about which testimony is to be offered at trial, and this was generally construed to require a narrative report rather than the briefer notations found in . . . insurance and workers’ compensation forms” (73 Siegel’s Practice Review 1, Amendment of Rules Dispenses with “Detailed” Recitation of Injuries [July 1998]). The April 17, 1998 amendment struck out the word “detailed” which, according to a member of the committee that recommended the amendment, would “allow the plaintiff to prosecute his personal injury case from inception through trial without ever obtaining a narrative report if his provider form(s) contains the essential information, i.e., a description of the injuries, a diagnosis and a prognosis, and, if X-rays or technicians’ reports will be offered at trial, a reference to those reports” (id. [emphasis added]; see Siegel, NY Prac § 363 [5th ed 2011] [Note: online treatise]).


source: Caselaw Access Project

author: Graffeo, J. Rivera, J.

license: Public Domain

text:
    [17 NE3d 491, 993 NYS2d 236]
    The People of the State of New York, Respondent, v Churchill Andrews, Appellant. The People of the State of New York, Respondent, v Kevin Kruger, Appellant. The People of the State of New York, Appellant, v Vinod Patel, Respondent.
    Argued April 29, 2014;
    decided June 12, 2014

      POINTS OF COUNSEL

      Lynn W.L. Fahey, Appellate Advocates, New York City (Lisa Napoli of counsel), for appellant in the first above-entitled action.
    Churchill Andrews’s coram nobis petition should have been granted under People v Syville (15 NY3d 391 [2010]) because defense counsel failed to protect his right to appeal, correct the court’s erroneous statement that he had waived that appeal, or explain the potential benefits of appealing the conviction that rendered him, a hardworking family man who been a lawful permanent resident of the United States for his entire adult life, mandatorily and permanently removable. (Roe v Flores-Ortega, 528 US 470; People v Droz, 39 NY2d 457; People v Caban, 5 NY3d 143; People v White, 56 NY2d 110; People v Settles, 46 NY2d 154; Evitts v Lucey, 469 US 387; Penson v Ohio, 488 US 75; People v Pride, 3 NY2d 545; People v Crimmins, 36 NY2d 230.)

      Kenneth P. Thompson, District Attorney, Brooklyn (Joyce Slevin, Leonard Joblove and Solomon Neubort of counsel), for respondent in the first above-entitled action.
    I. The appeal should be dismissed because defendant has been deported. (People v Diaz, 7 NY3d 831; People v Parmaklidis, 38 NY2d 1005; People v Del Rio, 14 NY2d 165; People v Ventura, 17 NY3d 675.) II. Defendant has not preserved for appellate review his claim that he was denied effective assistance of counsel on the ground that counsel allegedly failed at sentencing to advise him that he would be deported if he did not appeal. Moreover, denial of defendant’s coram nobis petition was proper because he failed to provide sworn allegations of fact to support any of his claims. In any event, all of defendant’s claims are meritless. (People v Syville, 15 NY3d 391; People v Ford, 69 NY2d 775; Mikulski v Battaglia, 112 AD3d 1355; Hoyte v Epstein, 12 AD3d 487; Santillo v Thompson, 71 AD3d 1587; Schissler v Athens Assoc., 19 AD3d 979; People v Ozuna, 7 NY3d 913; People v Crimmins, 38 NY2d 407; People v Melton, 35 NY2d 327; People v Usher, 172 AD2d 1075.)

      Ostrer & Hoovler, P.C., Chester (Benjamin Ostrer and David A. Brodsky of counsel), for appellant in the second above-entitled action.
    I. The Appellate Division erred by failing to consider the merits of appellant’s petition for a writ of error coram nobis. (Simon v Usher, 17 NY3d 625; People v Syville, 15 NY3d 391; People v Callaway, 24 NY2d 127.) II. The Appellate Division should have considered the merits of appellant’s petition for a writ of coram nobis under People v Syville (15 NY3d 391 [2010]) or an extension to it. (Gideon v Wainwright, 372 US 335; Evitts v Lucey, 469 US 387; Cuyler v Sullivan, 446 US 335; Roe v Flores-Ortega, 528 US 470; Perez v Wainwright, 640 F2d 596;
      Ross v Moffitt, 417 US 600; Wainwright v Torna, 455 US 586; Baldwin v Reese, 541 US 27; Picard v Connor, 404 US 270.) III. The issue to be raised on appeal is meritorious since appellant’s rights were violated when County Court coerced him to withdraw his plea without identifying grounds capable of review on appeal. (People v Seaberg, 74 NY2d 1; People v Hidalgo, 91 NY2d 733; People v Selikoff, 35 NY2d 227, 419 US 1122; People v Danny G., 61 NY2d 169; People v McConnell, 49 NY2d 340; Spence v Superintendent, Great Meadow Correctional Facility, 219 F3d 162; People v Hill, 9 NY3d 189; North Carolina v Alford, 400 US 25; People v Brown, 14 NY3d 113; People v Murray, 15 NY3d 725.)

      Francis D. Phillips, II, District Attorney, Middletown (Andrew R. Kass of counsel), for respondent in the second above-entitled action.
    I. The Appellate Division correctly denied defendant’s application for a writ of error coram nobis that sought permission to file a late leave application. (People v Syville, 15 NY3d 391; People v Kruger, 104 AD3d 875; Sumner v Mata, 449 US 539; People v West, 100 NY2d 23; Evitts v Lucey, 469 US 387; Williams v Oklahoma City, 395 US 458; Douglas v California, 372 US 353; Jones v Barnes, 463 US 745; People v Stultz, 2 NY3d 277.) II. Defendant’s remaining claims are not properly before the Court. (People v Thomas, 47 NY2d 37.)

      Richard A. Brown, District Attorney, Kew Gardens (John M. Castellano, Johnnette Traill and John F. McGoldrick of counsel), for appellant in the third above-entitled action.
    The Appellate Division erroneously granted coram nobis relief because (a) that procedure is not available where, as here, a defendant can obtain review of his claim under the CPL, and (b) even if further review were available, defendant’s inconsistent allegations and failure to support his claims mandated denial. (People v De Renzzio, 14 NY2d 732; People v Callaway, 24 NY2d 127; People v O’Bryan, 26 NY2d 95; People v Thomas, 47 NY2d 37; People v Corso, 40 NY2d 578; People v Syville, 15 NY3d 391; Evitts v Lucey, 469 US 387; Ross v Moffitt, 417 US 600; People v Evans, 94 NY2d 499; Matter of Dondi v Jones, 40 NY2d 8.)

      Lynn W.L. Fahey, Appellate Advocates, New York City, for respondent in the third above-entitled action.
    The Appellate Division had the power to grant respondent’s coram nobis application regardless of its earlier denial of his timely but far more cursory pro se CPL 460.30 motion. (People v Corso, 40 NY2d 578; People v Syville, 15 NY3d 391; People v Thomas, 47 NY2d 37; People v Ventura, 17 NY3d 675; People v Rivera, 39 NY2d 519; People v Pitts, 6 NY2d 288; People v Lassalle, 20 NY3d 1024; People v D’Alessandro, 13 NY3d 216; People v Turner, 5 NY3d 476; People v Ramsey, 23 NY2d 656.)
   OPINION OF THE COURT

Graffeo, J.

In these three cases, we consider whether our decision in People v Syville (15 NY3d 391 [2010]) entitled defendants to a common-law writ of error coram nobis in order to pursue untimely appeals.

I

The appellate process is a statutory creation in New York (see e.g. People v Romero, 7 NY3d 633, 636-637 [2006]; People v West, 100 NY2d 23, 26 [2003], cert denied 540 US 1019 [2003]). The review of a criminal conviction is authorized by article 450 of the Criminal Procedure Law. There is a right to a first-tier, direct appeal to an intermediate appellate court (see CPL 450.10 [1]), whereas secondary review is more commonly discretionary 0compare CPL 450.90 with CPL 450.70 and CPL 450.80). An appeal is initiated by filing a notice of appeal, usually within 30 days after sentence is imposed (see CPL 460.10 [1] [a]).

Although there is no constitutional entitlement to an appeal (see e.g. Halbert v Michigan, 545 US 605, 610 [2005]; McKane v Durston, 153 US 684, 687 [1894]), it has long been recognized that a statutory right to a direct appeal triggers a guarantee of effective legal assistance (see Evitts v Lucey, 469 US 387, 393-394 [1985]; Douglas v California, 372 US 353, 357 [1963]). A lawyer who disregards a timely request to file a notice of appeal “acts in a manner that is professionally unreasonable” (Roe v Flores-Ortega, 528 US 470, 477 [2000]). A corresponding loss of appellate rights results in a deprivation of due process of law (see Evitts, 469 US at 396-397; Roe, 528 US at 477).

The procedure for raising such a claim has evolved over time. Historically, the ancient writ of “error coram nobis” was used by courts to correct errors for which no other avenue of judicial relief was apparent (see e.g. People v Hairston, 10 NY2d 92, 93-94 [1961]; People v Bachert, 69 NY2d 593, 598-600 [1987]). After the writ was resurrected in New York (see Matter of Lyons v Goldstein, 290 NY 19, 25 [1943]), it was enlarged to include claims premised on the loss of the right to an appeal caused by deficient legal performance (see e.g. People v Montgomery, 24 NY2d 130, 133-134 [1969]). This so-called “Montgomery claim,” if meritorious, restarted the 30-day period to file a notice of appeal (see id.).

Most of the common-law, coram nobis types of relief were abrogated when the Criminal Procedure Law was enacted (see People v Corso, 40 NY2d 578, 580 [1976], citing CPL 440.10). A modified form of Montgomery relief was codified in CPL 460.30 to permit a defendant to seek permission to file a late notice of direct appeal in certain circumstances. The motion “must be made with due diligence after the time for the taking of such appeal has expired, and in any case not more than one year thereafter” (CPL 460.30 [1]). The one-year grace period is strictly enforced (see People v Corso, 40 NY2d at 581) “since the time limits within which appeals must be taken are jurisdictional in nature and courts lack inherent power to modify or extend them” (People v Thomas, 47 NY2d 37, 43 [1979]). But the enactment of the Criminal Procedure Law “did not expressly abolish the common-law writ of coram nobis or necessarily embrace all of its prior or unanticipated functions” (People v Bachert, 69 NY2d at 599). As a result, we have authorized a limited exception to the one-year rule if diligent and good faith efforts to comply with the requirement were deliberately thwarted by the People (see People v Johnson, 69 NY2d 339, 341-342 [1987]; People v Thomas, 47 NY2d at 43).

In People v Syville (15 NY3d 391 [2010]), we considered yet another situation — whether an exception was warranted for a defendant who does not invoke CPL 460.30 within the one-year time frame because defense counsel inexcusably failed to comply with a timely request to file a notice of appeal. We acknowledged that coram nobis was significantly restricted by the adoption of the Criminal Procedure Law, but that the ancient writ “continues to be available to alleviate a constitutional wrong when a defendant has no other procedural recourse” (id. at 400). Consistent with the demands of due process, Syville recognized that a criminal defendant must be allowed to assert that a right to appeal was extinguished “due solely to the unconstitutionally deficient performance of counsel in failing to file a timely notice of appeal” (id. at 398). Consequently, we concluded that “the time limit imposed in CPL 460.30 should not categorically bar an appellate court from considering [an] application to pursue an untimely appeal” (id. at 399-400) in a particular type of “rare case” (id. at 400 n 2) where:

“an attorney has failed to comply with a timely request for the filing of a notice of appeal and the defendant alleges that the omission could not reasonably have been discovered within the one-year period” (id. at 399).

When this occurs, the proper procedure is a coram nobis application to the Appellate Division (see id. at 400-401). Nevertheless, “in most cases strict enforcement of the CPL 460.30 time limit is constitutionally permissible because attorneys usually accede to their clients’ requests to file notices of appeal and, when they fail to do so, most defendants are in a position to discover the omission within the statutory grace period” (id. at 400 n 2).

With this background in mind, we now turn to the facts of the three cases before us.

II

People v Vinod Patel-.

When defendant Vinod Patel pleaded guilty to possessing child pornography, he waived his right to appeal orally and in writing. Approximately 10 months after sentence was imposed — and within the one-year grace period provided by CPL 460.30 — Patel sought permission to file a late notice of appeal. He asserted that his attorney failed to advise him about his right to pursue a direct appeal, and claimed that he had requested that his lawyer file a notice of appeal. The Appellate Division rejected Patel’s application (see 2008 NY Slip Op 67328[U] [2d Dept 2008], lv dismissed 10 NY3d 962 [2008]).

More than three years later, after we decided Syville, Patel applied for coram nobis relief in the Appellate Division, arguing that his attorney had been ineffective for failing to file a notice of direct appeal following the plea bargain conviction. The Second Department granted Patel’s motion and reinstated his direct appeal (97 AD3d 701 [2d Dept 2012]). A Judge of this Court granted the People leave to appeal (20 NY3d 934 [2012]).

People v Churchill Andrews:

Defendant Churchill Andrews pleaded guilty to selling narcotics and executed a written waiver of his right to appeal in conjunction with a drug-treatment agreement. Following a series of adjournments, along with an arrest on new charges and failure to complete the treatment program, Andrews eventually accepted a sentence of time served. In accordance with that disposition, the court noted that Andrews had “previously waive[d] his right to appeal” and he was released from custody later that day. Andrews did not file a notice of appeal.

Andrews subsequently filed a CPL article 440 motion to vacate the judgment. It was denied by Supreme Court (2011 NY Slip Op 31216[U] [2011]) and the Appellate Division granted Andrews permission to appeal the order. Before the Appellate Division decided the case, Andrews moved for coram nobis relief under Syville, claiming that his lawyer had been ineffective for not filing a notice of direct appeal. At Andrews’ urging, the court stayed its resolution of the CPL 440 proceeding pending the outcome of the coram nobis motion. The court ultimately rejected both of Andrews’ applications (108 AD3d 727 [2d Dept 2013]; 108 AD3d 729 [2d Dept 2013]). A Judge of this Court granted Andrews permission to appeal in the coram nobis proceeding (22 NY3d 995 [2013]).

People v Kevin Kruger-.

Defendant Kevin Kruger pleaded guilty to first-degree burglary, waiving his right to appeal in writing and in court. Kruger appealed and the Appellate Division affirmed, concluding that his challenge to the guilty plea was encompassed by the waiver of appeal (68 AD3d 784 [2d Dept 2009]). Kruger did not file an application for discretionary permission to appeal to this Court, commonly referred to as a “criminal leave application” or “CLA” (see CPL 460.10 [5]; 460.20).

Several years later, Kruger sought coram nobis relief in order to file a late criminal leave application. He claimed that his lawyer agreed to file the CLA but had neglected to do so. The Appellate Division denied the coram nobis motion, concluding that Syville does not apply to untimely criminal leave applications (104 AD3d 875 [2013]). A Judge of this Court granted Kruger leave to appeal (21 NY3d 1017 [2013]).

III

These appeals present three related yet distinct questions arising under the reasoning of Syville and the precedent upon which it was based. In Patel, the People assert that the Appellate Division should not have granted the coram nobis motion because that relief is available only if no other procedural recourse exists, yet Patel availed himself of the CPL 460.30 procedure prior to the expiration of the one-year grace period. In Andrews, the primary issue is whether the motion for a writ of error coram nobis provided sufficient factual allegations to support Andrews’ assertion that his lawyer failed to inform him about the procedure for pursuing an appeal or whether Andrews’ attorney should have filed a notice of appeal to protect his interests. And in Kruger, we must consider whether the reasoning of Syville, which focused on an appeal as of right to an intermediate appellate court, applies with equal force to a discretionary criminal leave application to our Court.

As our historical analysis reveals, the holding of Syville — that coram nobis may be used to assert a claim that appellate rights were extinguished by ineffective legal assistance — was a narrow one. It was premised on the recognition that coram nobis is available only in “rare” cases in which a defendant “has no other procedural recourse” to raise such an issue (15 NY3d at 400 and n 2). In fact, we specifically noted that “strict enforcement” of CPL 460.30 is permissible in “most cases” since the majority of “defendants are in a position to discover” the failure to file a notice of appeal within the one-year grace period (id. at 400 n 2). Only defendants who “could not reasonably have . . . discovered” the omission during that period are entitled to utilize the coram nobis procedure (id. at 399).

Syville forecloses Patel’s claim. Unlike the Syville defendants, Patel realized that a notice of appeal had not been filed within 30 days of sentencing and moved for CPL 460.30 relief before the one-year grace period elapsed. By invoking that procedure, Patel could not later seek similar relief in a coram nobis proceeding (see e.g. People v Corso, 40 NY2d at 579). Cases preceding the adoption of the Criminal Procedure Law (see e.g. People v Lampkins, 21 NY2d 138 [1967]; People v Adams, 12 NY2d 417 [1963]; People v Stanley, 12 NY2d 250 [1963]) are not controlling since they were largely abrogated by the codification of the preexisting coram nobis remedies (see People v Bachert, 69 NY2d at 596, 599). The pertinent precedent now is CPL 460.30 and Syville, and since Patel was in a position to use the statutory mechanism — and actually did so within the one-year window — recourse to the common-law procedure was not available.

Andrews’ application for coram nobis relief suffered from a more fundamental flaw. Syville conditions coram nobis relief on a defendant’s ability to demonstrate that appellate rights were lost as a result of ineffective assistance (see 15 NY3d at 398). The Syville defendants, for example, offered specific factual allegations that supported their claims of ineffective assistance of counsel. The coram nobis application for Syville included his affidavit and one from his attorney “stating that, upon being convicted . . . Syville had requested” him to “file a notice of appeal on his behalf’ and the lawyer confirmed that he mistakenly failed to do so (id. at 395). In the companion case (People v Tony Council), the coram nobis motion was likewise supported by several affidavits establishing “that, at the time of his conviction, Council had asked his trial attorney to file a notice of appeal” and the lawyer “averred that he had neglected to file the notice of appeal as a result of ‘law office failure’ ” (id. at 396).

Andrews, in contrast, made only perfunctory claims that he asked his lawyer to file a timely notice of appeal and that it was impossible to discover the omission with reasonable diligence. In fact, most of the relevant information presented to the Appellate Division was established by Andrews’ counsel at sentencing, who sent an unsolicited response to Andrews’ allegation of professional ineptitude. The attorney states that she had discussions regarding the possibility of an appeal with Andrews (as she did with every client) and he decided not to pursue that route because he wanted to accept a sentence of time served and end his case. Those statements were consistent with Andrews’ execution of a written waiver of his right to appeal in the presence of the judge who presided at the guilty plea proceeding, which presumptively demonstrated a desire not to seek appellate review (see generally People v Parris, 4 NY3d 41, 50 [2004]). Defense counsel further recalled that it was the court’s usual practice to provide defendants with written notice of the right to appeal. Nothing Andrews offered countered these assertions — he did not claim that his attorney or the court failed to inform him about the appellate process, or that he asked for a notice of appeal to be filed. Nor did Andrews attempt to explain why he waited more than two years to seek coram nobis relief after he obtained an attorney to represent him on collateral review. Consequently, his Syville claim was properly rejected by the Appellate Division.

Kruger’s case is different in at least one important respect. He sought permission to file an untimely criminal leave application for discretionary review by our Court — not a late first-tier appeal as of right to an intermediate appellate tribunal as in Syville, Patel and Andrews. Unlike an appeal as of right, however, there is no federal constitutional entitlement to legal representation on a discretionary application for an appeal to a state’s highest court (see Ross v Moffitt, 417 US 600, 615-616 [1974]; Halbert v Michigan, 545 US at 611-612; Hernandez v Greiner, 414 F3d 266, 269-270 [2d Cir 2005]). Thus, the failure to file a CLA, standing alone, does not necessarily establish that Kruger was deprived of effective assistance of counsel or due process of law (see Wainwright v Torna, 455 US 586, 587-588 [1982]). He was therefore not entitled to coram nobis relief.

Furthermore, Kruger has not premised his ineffectiveness claim on independent state constitutional grounds so our analysis is grounded on federal constitutional precedent (see generally People v Kin Kan, 78 NY2d 54, 59-60 [1991]). Cases such as Wainwright v Torna (455 US 586 [1982]) and Ross v Moffitt (417 US 600 [1974]) clearly establish that the failure of Kruger’s attorney to pursue a CLA did not implicate the Sixth or Fourteenth Amendments, even though — as our dissenting colleague observes (see dissenting op at 619) — this affects Kruger’s ability to seek federal habeas corpus review of his underlying appellate issues (see O’Sullivan v Boerckel, 526 US 838, 848-849 [1999]). Because Kruger has not asked us to depart from that rationale as a matter of state law, or cited any New York statutes or regulatory provisions in support of such a position, it is inappropriate for us to decide today whether a more protective rule should be recognized under our State Constitution.

Accordingly, in People v Patel, the order of the Appellate Division should be reversed and defendant’s application for a writ of error coram nobis denied. In People v Andrews, the order of the Appellate Division should be affirmed. In People v Kruger, the order of the Appellate Division should be affirmed.

Rivera, J.

(concurring in People v Andrews, and dissenting in People v Kruger). I join the majority in People v Andrews because, as the majority states, Andrews’s petition for a writ of error coram nobis lacked his affirmative assertion that defense counsel failed to inform him about the appellate process or that he asked counsel to file a notice of appeal (majority op at 615-616).

However, of import is defense counsel’s conduct as related to her obligation to inform Andrews of his right to appeal. Counsel’s failure to provide Andrews with written notice, in person or by mail, of his right to appeal was in direct contravention of the rules of the Appellate Division, Second Department (see 22 NYCRR 671.3 [a] [“Upon conviction in the trial court ... it shall be the duty of the counsel for the defendant, immediately after the pronouncement of sentence ... to give, either by mail or personally, written notice to his client advising him of his right to appeal”]). Moreover, defense counsel’s conduct is particularly disconcerting because, according to her affirmation, she “ask[ed] Mr. Andrews if he wished to appeal” — no more than a cursory inquiry, lacking any semblance of counsel regarding Andrews’s right to appeal. Nevertheless, Andrews’s submissions were inadequate to support his request for a writ of error coram nobis, and I agree with the majority that the order of the Appellate Division should be affirmed.

However, I disagree with the majority’s decision in People v Kruger that defendant may not seek coram nobis relief when counsel fails to file a timely criminal leave application to our Court, despite defendant’s specific request, because such failure “does not necessarily establish” ineffective assistance of counsel or deprivation of due process of law (majority op at 616). The majority grounds its decision on the lack of a federal constitutional right to legal representation on a discretionary application for an appeal to our Court.

This reasoning is unpersuasive. It is within our discretion that we determine the expanse of coram nobis and “the longstanding recognition of coram nobis flexibility” (People v Bachert, 69 NY2d 593, 596 [1987]) empowers us to afford relief to a defendant who “has no other procedural recourse” (People v Syville, 15 NY3d 391, 400 [2010]). Here, defendant seeks relief to file an untimely criminal leave application. Denial of the opportunity to exhaust all available avenues for state appellate review has negative consequences that affect defendant’s rights, and potentially forecloses judicial correction of trial and appellate errors. Therefore, I dissent.

Once a state affords appellate review, it must do so in a constitutional manner (see Griffin v Illinois, 351 US 12, 20 [1956]; Evitts v Lucey, 469 US 387, 393 [1985]; People v West, 100 NY2d 23, 28 [2003]). Here, our appellate courts, both the Appellate Division and our Court of Appeals, are “ ‘an integral part of the . . . system for finally adjudicating the guilt or innocence of a defendant’ ” (Evitts, 469 US at 393, citing Griffin, 351 US at 18). Although a defendant has no right to a favorable outcome on appeal, our laws recognize a defendant’s right to request appellate consideration (see generally CPL 460.10).

It is undisputed that defendant sought to invoke his right to appellate review as guaranteed by our state. He asked his appellate counsel to file an application for leave to appeal and, although defense counsel told defendant that he would do so, counsel failed to file a timely criminal leave application. Moreover, counsel did not make a timely request for an extension to file, as provided by our Criminal Procedure Law (see CPL 460.30). As a direct result of counsel’s deficient performance in the exercise of his professional duties and responsibilities to his client, defendant has been denied the opportunity to request review of his conviction from this Court.

This denial is not inconsequential for several reasons. First, denial of the right to request review by the highest court of the state due to the mere fact that an attorney failed to comply with a client’s request to file a timely criminal leave application places in question the integrity of our criminal justice system and the fairness of the appellate process. While defendant, of course, could not be certain we would grant leave, his lawyer’s failure has eliminated even that possibility. Second, review by our Court is a meaningful part of New York’s appellate procedure, allowing us to

“consider and determine not only questions of law which were raised or considered upon the appeal to the [Appellate Division], but also any question of law involving alleged error or defect in the criminal court proceedings resulting in the original criminal court judgment, sentence or order, regardless of whether such question was raised, considered or determined upon the appeal to the [Appellate Division]” (CPL 470.35 [1]).

Third, defense counsel’s failure has jeopardized defendant’s potential request for federal habeas relief (Baldwin v Reese, 541 US 27, 29 [2004] [“Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies”], citing 28 USC § 2254 [b] [1]). Defendant’s interest in state and federal judicial review of his claims is of no less import and is no less worthy of protection than the interests at stake in Syville.

Defendant only seeks permission to submit a late criminal leave application to our Court. It is our Court that decides the expanse of coram nobis, and I would allow the writ to be used for this limited purpose. The writ is especially warranted where, as here, defendant has been unduly prejudiced due to no fault of his own hut, rather, solely as a result of his counsel’s deficient performance in failing to comply with the ministerial task of filing a timely criminal leave application.

Chief Judge Lippman and Judges Read, Smith, Pigott, Rivera and Abdus-Salaam concur with Judge Graffeo; Judge Rivera in a separate concurring opinion.

In People v Andrews: Order affirmed.

Chief Judge Lippman and Judges Read, Smith, Pigott and Abdus-Salaam concur with Judge Graffeo; Judge Rivera dissents in an opinion.

In People v Kruger: Order affirmed.

Chief Judge Lippman and Judges Read, Smith, Pigott, Rivera and Abdus-Salaam concur.

In People v Patel: Order reversed and defendant’s application for a writ of error coram nobis denied.

      . [1] The People have asked us to dismiss Andrews’ appeal because he has been involuntarily removed from the United States on the basis of the underlying drug-sale conviction in this case. We note, however, that this action by federal authorities occurred after a Judge of our Court granted Andrews leave to appeal and despite apparent assurances that removal would not occur while the appeal was pending. Under these circumstances, we reject the People’s argument that the appeal should be dismissed (see generally People v Ventura, 17 NY3d 675, 680-681 [2011]).

      . A defendant who acts diligently to obtain “unquestionable documentary proof’ that would “conclusively substantiate! ]” ineffective legal assistance in support of a motion to file a late notice of appeal (CPL 460.30 [3]), but is unable to comply with the jurisdictional one-year grace period through no fault of his own (see People v Thomas, 47 NY2d at 43; People v Corso, 40 NY2d at 581), could seek a -writ of error coram nobis because “no other procedural recourse” apparently exists “to alleviate [the] constitutional -wrong” in that particular situation (People v Syville, 15 NY3d at 400).

      . The People do not claim that Kruger erroneously filed his coram nobis application with the Appellate Division rather than our Court so we express no view on whether the motion was procedurally defective in that regard.

      . Every department imposes such requirements (see 22 NYCRR 606.5 [b] [First Department]; 22 NYCRR 821.2 [a] [Third Department]; 22 NYCRR 1022.11 [a] [Fourth Department]). These notification requirements imposed on counsel are not insignificant. In the Second Department, counsel’s written notice must inform defendant of “the applicable time limitations with respect to the making of the application for permission to appeal[,] . . . the manner of instituting the appeal and [obtaining applicable transcripts,] and the appellant’s right ... to make application to the appellate court for the following relief: for the assignment of counsel to prosecute the appeal; for leave to prosecute the appeal as a poor person and to dispense with printing; and [obtaining applicable transcripts at no cost]” (22 NYCRR 671.3 [b] [1], [2], [3]). Moreover, counsel’s written notice should “request the written instructions of his client, and if the client thereafter gives counsel timely written notice of his desire [to appeal] . . . counsel shall proceed promptly to do so” (22 NYCRR 671.3 [b] [4]). Every department has similar requirements for counsel’s written notice (see 22 NYCRR 606.5 [b] [1] [First Department]; 22 NYCRR 821.2 [a] [Third Department]; 22 NYCRR 1022.11 [a] [Fourth Department]).

      . Like the majority, I take no position on whether Kruger’s coram nobis petition was properly filed with the Appellate Division (majority op at 615 n 2).


author: Smith, J.

text:
    [16 NE3d 533, 992 NYS2d 475]
    The People of the State of New York, Respondent, v Lionel McCray, Appellant.
    Argued May 8, 2014;
    decided June 12, 2014

      POINTS OF COUNSEL

      Stanley Neustadter, Cardozo Appeals Clinic, New York City (Mark M. Baker of counsel), for appellant.
    I. The issue of the legal sufficiency of the evidence supporting the element of “dwelling” is reviewable by the Court of Appeals since it was addressed by the trial court on the merits, pursuant to counsel’s motion, at an appropriate point in the trial. (Jackson v Virginia, 443 US 307; Burks v United States, 437 US 1; People v Hawkins, 11 NY3d 484; People v Gray, 86 NY2d 10; People v Hines, 97 NY2d 56; People v Chestnut, 19 NY3d 606; People v Patterson, 39 NY2d 288; People v George, 11 NY3d 848; People v Olsen, 34 NY2d 349; Matter of Allen v Strough, 301 AD2d 11.) II. The unlawful entry into the public commercial portion of a multiuse high-rise structure is not an entry into a “dwelling” for purposes of an aggravated charge of burglary in the second degree where there was no evidence that appellant intruded into the unconnected and severed residential area of the building, which, in any event, was not readily accessible from the commercial portion. (People v Barney, 99 NY2d 367; Quinn v People, 71 NY 561; People v Quattlebaum, 91 NY2d 744; People v Cummings, 16 NY3d 784; People v Santana, 143 AD2d 207; People v Stevenson, 116 AD2d 756; People v Green, 141 AD2d 760; People v Ivory, 99 AD2d 154; People v Harris, 19 AD3d 171; People v Ortiz, 78 AD3d 430.) III. The imposition of consecutive sentences was illegal under Penal Law § 70.25 (2) where appellant’s continuing conduct was all part of a single criminal scheme. (People v Wright, 19 NY3d 359; People v Laureano, 87 NY2d 640; People v Bryant, 92 NY2d 216; People v Ramirez, 89 NY2d 444; People v Samms, 95 NY2d 52; People v Snyder, 241 NY 81; Prince v United States, 352 US 322; People v Rosas, 8 NY3d 493; People v Frazier, 16 NY3d 36; People v Matarese, 57 AD2d 765.)

      Cyrus R. Vance, Jr., District Attorney, New York City (Sheryl Feldman and Alan Gadlin of counsel), for respondent.
    I. Contrary to defendant’s unpreserved claims, he was properly convicted of two counts of second degree burglary. (People v Hawkins, 11 NY3d 484; People v Russell, 71 NY2d 1016; People v Napolitano, 282 AD2d 49, 96 NY2d 866; People v Rodriguez,
      50 NY2d 553; People v Gray, 86 NY2d 10; People v Qualls, 55 NY2d 733; People v Chestnut, 19 NY3d 606; People v Robinson, 36 NY2d 224; People v Cona, 49 NY2d 26; People v Norman, 85 NY2d 609.) II. The imposition of consecutive sentences for two separate second degree burglaries was lawful. (People v Frazier, 16 NY3d 36; People v Laureano, 87 NY2d 640; People v Yong Yun Lee, 92 NY2d 987; People v Snyder, 241 NY 81; People v Felder, 2 AD3d 365, 2 NY3d 799; People v James, 204 AD2d 180, 84 NY2d 827; People v Smith, 144 AD2d 600; People v Day, 73 NY2d 208; People v Rosas, 8 NY3d 493; People v McKnight, 16 NY3d 43.)
   OPINION OF THE COURT

Smith, J.

A person commits burglary in the third degree when he or she “knowingly enters or remains unlawfully in a building with intent to commit a crime therein” (Penal Law § 140.20). If the building is a “dwelling,” however, the crime is a more serious one, burglary in the second degree (Penal Law § 140.25 [2]). The question in this case is whether a burglary committed in the nonresidential part of a building used partly for residential purposes should be treated as the burglary of a dwelling.

We last confronted this question long ago, in Quinn v People (71 NY 561 [1878]). That case established a rule that we reaffirm today: Generally, if a building contains a dwelling, a burglary committed in any part of that building is the burglary of a dwelling; but an exception exists where the building is large and the crime is committed in a place so remote and inaccessible from the living quarters that the special dangers inherent in the burglary of a dwelling do not exist. Applying that rule to this case, we hold that the evidence supports defendant’s conviction on two counts of second degree burglary.

I

A large building at 234 West 42nd Street in Manhattan is occupied by a number of different businesses, including a Hilton Hotel. The hotel has two lobbies, on the ground floor and the 14th floor. Between the two lobbies is nonhotel space. The 16th floor is the conference room level. We infer from the record that the hotel’s guest rooms are on the 17th floor and above. Two stairways, stairway D and stairway E, are respectively on the west and east of the hotel space. A locker room used by Hilton employees may be reached from the 14th floor lobby by entering stairway E (the east stairway) and going up a few steps to a mezzanine. On the other side of the building, to the west of stairway D and rising from the street level but not reaching the level of the hotel’s 14th floor lobby, is Madame Tussaud’s Wax Museum.

The hotel’s video security system shows that on October 6, 2009, at 10:22 in the evening, defendant entered the locker room with a sweater over his head. He broke into a locker, then promptly left the locker room when a Hilton employee entered it. Some four minutes later, another security camera shows defendant walking down stairway D. There was evidence that, to get from the locker room to stairway D, defendant must have gone up stairway E to the 16th floor and crossed from one stairway to the other at the conference room level.

There is no direct evidence showing where defendant was or what he did for roughly the next three hours. Beginning shortly after 1:30 a.m. on October 7, he appears in a number of video images from security cameras in the wax museum. He is seen sliding a box along the floor and putting things into it, and then taking a hand truck.

Shortly after 4:00 a.m. on October 7, defendant came from stairway D onto the sidewalk outside the building, pushing a hand truck with boxes on it. As it happened, a hotel security official and a building security guard were at that moment on the sidewalk, discussing the earlier, locker room burglary. One of them followed defendant until he could get the attention of a police officer, and defendant was arrested with stolen property.

A jury convicted defendant on two counts of burglary in the second degree, the first for the locker room burglary on October 6 and the second for the wax museum burglary on October 7. The Appellate Division affirmed (People v McCray, 102 AD3d 560 [1st Dept 2013]). A Judge of this Court granted leave to appeal (21 NY3d 1006 [2013]), and we now affirm.

II

Defendant does not dispute that the evidence supports his conviction for two burglaries, but says that they were third degree, not second degree, burglaries. The People say that a reading of the burglary statutes is enough to refute defendant’s argument. As we have mentioned, Penal Law § 140.25 (2) elevates third degree burglary to second degree burglary when “[t]he building is a dwelling.” “Dwelling” is defined as “a building which is usually occupied by a person lodging therein at night” (Penal Law § 140.00 [3]). The Hilton Hotel is unquestionably a dwelling by this definition. And the definition of “building” includes the following: “Where a building consists of two or more units separately secured or occupied, each unit shall be deemed both a separate building in itself and a part of the main building” (Penal Law § 140.00 [2]). Thus, the People say, a burglary committed anywhere in a building of which a dwelling is a part counts as a dwelling burglary.

We find the case less simple than the People do. To explain why, we will examine the history of the special treatment given by the law to burglaries of dwellings, and particularly our 1878 decision in Quinn.

At common law, burglary could be committed only by breaking into a dwelling, called in earlier days a “mansion-house,” or by “breaking in the gates or walls of a town” (2 Blackstone, Commentaries on the Laws of England at 224-225 [1789 ed]). By the time we decided Quinn, the crime had been expanded by statute and divided into degrees. Breaking into “a dwelling-house” with intent to commit a crime was either first or second degree burglary, depending on the time and manner in which the crime was committed (3 Rev Stat of NY, part IV, ch I, tit III, art 2, §§ 11-13 [6th ed 1875]); while breaking into a “shop, store, booth, tent, warehouse or other building” was, if it met the other criteria for burglary, only burglary in the third degree (id. § 18 [2]). A statute said that “[n]o building shall be deemed a dwelling-house, or any part of a dwelling-house . . . unless the same be joined to, immediately connected with, and part of a dwelling-house” (id. § 17).

Quinn involved a building of which the lower floors were used for a shop. One of the owners of the shop “and some other persons” lived on the upper floors (71 NY at 564). There was no “internal communication” between the shop and the living quarters; to go from one to another, it was necessary to go into the yard, and then up stairs (id. at 565). The defendant broke into a room in the shop.

We affirmed the defendant’s conviction of first degree burglary. We held the shop to be part of the “dwelling-house,” despite the absence of internal communication with the place where people slept, because “it was within the same four outer walls, and under the same roof’ (id. at 565). We pointed out that first degree burglary, as then defined by statute, was not materially different from common-law burglary, and then explained why Quinn’s crime fit the definition:

“the essence of the crime of burglary at common law is the midnight terror excited, and the liability created by it of danger to human life, growing out of the attempt to defend property from depredation. It is plain that both of these may arise, when the place entered is in close contiguity with the place of the owner’s repose, though the former has no relation to the latter by reason of domestic use or adaptation” (id. at 567).

These words from almost a century and a half ago are still apt as an explanation of why burglary of a dwelling is a more serious crime than other burglaries: an intrusion into a home, or an overnight lodging, is both more frightening and more likely to end in violence. And it remains true today, as it was in 1878, that these dangers are created in significant degree when the crime is committed “in close contiguity” with a “place of repose” even though the place of the burglary and the sleeping quarters are not instantly accessible to each other. When a store owner in his bedroom becomes conscious that there is a burglary in the shop downstairs, or when a hotel guest hears a burglar in the coffee shop across the hall from her room, the special dangers that accompany the burglary of a dwelling are sufficiently present to justify treating the crime as a more serious one than burglary of a building where no one lives.

But, as we recognized in Quinn, the rule that burglary of a dwelling occurs whenever a burglar enters a place “within the same four outer walls, and under the same roof’ as a room used for sleeping at night cannot be unqualified. It is easy to imagine a crime to which that rule would literally apply that does not create the enhanced danger characteristic of a dwelling burglary. To take an extreme case: imagine a skyscraper used largely for stores and offices, with a few apartments remote and inaccessible from the commercial space. A burglar who breaks into one of the commercial units may create virtually no risk that the people living in the apartments will even be conscious of his presence. Such a burglar should be convicted only of third degree, not second degree, burglary. Thus we said in Quinn-.

“It may ward off misapprehension if it is said, that if different stores in a large building, some parts of which are used for sleeping apartments, are rented to different persons for purposes of trade or commerce, or mechanical pursuit, or manufacturing, another rule comes in. For illustration, let there be mentioned the Astor House in New York city. The rule is, that a part of a dwelling-house may be so severed from the rest of it, by being let to a tenant, as to be no longer a place in which burglary in the first degree can be committed; if there be no internal communication, and the tenant does not sleep in it. Then it is not parcel of the dwelling-house of the owner, for he has no occupation or possession of it; nor is it a dwelling-house of the tenant, for he does not lodge there” (71 NY at 573-574 [citations omitted]).

Though the Astor House is no longer the epitome of a large New York City building, and though we no longer stress the formality of a lease by which part of the building is “severed” from the rest, the essence of the “Astor House exception” to Quinn’s rule that burglary of a dwelling is committed whenever a burglary occurs in a building that contains a dwelling remains viable.

The People argue otherwise, insisting that today’s Penal Law sections, particularly the language that says separate units “shall be deemed . . . part of the main building” (Penal Law § 140.00 [2]), effectively codify the principal holding of Quinn but not the Astor House exception. We reject the People’s argument. When we recognized the Astor House exception in 1878 it was, as it is today, a common sense limitation on a literal reading of a statute. By adopting the “four walls and a roof’ rule of Quinn, we held that the section of the then-existing Revised Statutes that said no building could be a “dwelling-house” unless “joined to, immediately connected with, and part of, a dwelling-house” excluded only separate buildings, not separate apartments within a single building (71 NY at 573). Thus, there was in the Revised Statutes when Quinn was decided no explicit language supporting the Astor House exception. We nevertheless endorsed the exception, because we believed that in some cases applying the four walls and a roof rule would stretch the statute beyond its purpose.

We have no reason to view the legislative purpose differently today. We are aware of no evidence that the legislature has ever decided to reject the exception we described in Quinn, or to authorize a conviction for burglary of a dwelling where the burglar neither comes nor readily can come near to anyone’s living quarters. A review of some of the changes in the burglary statutes after 1878 bears this out.

In 1881, the legislature adopted a new Penal Code that included language, not in existence when Quinn was decided, saying: “If a building is so constructed as to consist of two or more parts occupied by different tenants separately for any purpose, each part or apartment is considered a separate building” (Penal Code of 1881 § 503). This seems to nullify Quinn’s four walls and a roof rule. Similar language was included in various statutes for many years (see Penal Law of 1909 § 401) during which we have found no case following the Quinn rule. In the 1965 version of the Penal Law, section 140.00 (2) continued the pattern, saying: “Where a building consists of two or more units separately secured or occupied, each unit shall be deemed a separate building.”

The 1967 legislature, however, amended the statute to read as it does today: “each unit shall be deemed both a separate building in itself and part of the main building” (L 1967, ch 791, § 14). The purpose of the 1967 change was explained by a committee that approved it:

“The purpose of this amendment is to denominate as burglary certain conduct which is not presently covered. For example, an intruder enters an apartment A of a multiple-apartment building solely to gain access to apartment B wherein he intends to commit a crime. Under present law, the invasion of apartment A does not constitute burglary in any degree since the element of ‘intent to commit a crime therein’ is missing. The proposed amendments [sic] remedies this situation” (Rep of Assembly Rules Comm, 1967 Legis Ann at 20).

We interpret the remedy adopted by the 1967 Legislature as reviving Quinn’s holding that, in general, burglary of a partly residential building is burglary of a dwelling, even if the burglar enters only the nonresidential part. But we do not interpret it as removing the limitation that the Quinn court placed on its own holding: In large buildings, situations can arise in which the general rule will not be applied because it does not make sense. That was the law in 1878 and is the law today.

III

We must now decide whether the two burglaries defendant here committed — the burglary of the locker room in the late evening of October 6, and of Madame Tussaud’s Wax Museum in the early morning of October 7 — fit within the general rule of Quinn or within the Astor House exception. We hold them both to be within the general rule, though the case is close as to the second burglary.

The first burglary took place in a locker room that was part of the hotel, though not in the immediate neighborhood of the rooms where guests slept. Defendant went from the locker room to stairway E, which, the jury could find on this record, provides a means of reaching all floors of the hotel. He then passed through the 16th floor, which — again drawing reasonable inferences from the record — is adjacent to the floors containing guest rooms, and entered stairway D, which also led to guest room floors. We have little hesitation in concluding that the risks inherent in burglary of a dwelling — the “night terror” and the danger of violence that we spoke of in Quinn — are present when a burglar comes this near to rooms in which people are sleeping.

The wax museum is much less near to the sleeping rooms. Indeed, we might well hold that a burglar who entered Madame Tussaud’s from the street, and never entered the stairwell it shared with the hotel, committed only third degree burglary. But here, the jury could find that defendant entered the wax museum by coming down stairway D from the hotel, and the jury could also find that he could easily have returned by that route and reentered the hotel at the 14th floor lobby level. There was evidence that the door on the 14th floor between the hotel and stairway D was not locked from either side, though it was equipped with a motion detector. We find this evidence sufficient, though just barely, to support the jury’s verdict. Though the burglary was not physically close to the guest rooms of the hotel, the ease of access from one place to another is at least equally important. Defendant’s unlawful presence in Madame Tussaud’s gave him sufficient access to the hotel’s sleeping quarters to make the October 7 burglary the burglary of a dwelling.

Defendant’s claim that he was improperly sentenced lacks merit.

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

Chief Judge Lippman and Judges Graffeo, Read, Pigott, Rivera and Abdus-Salaam concur.

Order affirmed.


author: Pigott, J.

text:
    [16 NE3d 527, 992 NYS2d 469]
    Daniel Capruso et al., Respondents, v Village of Kings Point et al., Appellants. State of New York, Respondent, v Village of Kings Point, Appellant.
    Argued May 1, 2014;
    decided June 12, 2014

      POINTS OF COUNSEL

      Ackerman, Levine, Cullen, Brickman & Limmer, LLP, Great Neck (John M. Brickman, Stephen G. Limmer, Todd H. Hesekiel
      and Benjamin S. Kaplan of counsel), Sol Wachtler and Stuart M. Cohen, for appellants in the first and second above-entitled actions.
    These actions were barred by the statute of limitations and laches; the courts below erred in applying the continuing wrong doctrine. (Covington v Walker, 3 NY3d 287, 4 NY3d 740, 545 US 1131; Matter of Shapiro v Town of Ramapo, 98 AD3d 675, 20 NY3d 994; Matter of Ackerman v Steisel, 104 AD2d 940, 66 NY2d 833; Bloomingdales, Inc. v New York City Tr. Auth., 13 NY3d 61; 509 Sixth Ave. Corp. v New York City Tr. Auth., 15 NY2d 48; Jensen v General Elec. Co., 82 NY2d 77; Sporn v MCA Records, Inc., 58 NY2d 482; Knobel v Shaw, 90 AD3d 493; Mattera v Mattera, 125 AD2d 555; Greco v Incorporated Vil. of Freeport, 223 AD2d 674.)

      Super Law Group, LLC, New York City (Reed W. Super and Alexandra I. Hankovszky of counsel), and Albert K. Butzel Law Offices (Albert K. Butzel of counsel), for respondents in the first above-entitled action.
    I. The first cause of action is unquestionably timely because it sought and obtained relief to prevent proposed future nonpark use of parkland presently used for recreation. (Matter of Essex County v Zagata, 91 NY2d 447; Church of St. Paul & St. Andrew v Barwick, 67 NY2d 510; Toilet Goods Assn., Inc. v Gardner, 387 US 158; Williamson County Regional Planning Comm’n v Hamilton Bank of Johnson City, 473 US 172; Matter of Martin v Ronan, 44 NY2d 374, 45 NY2d 776; Sorrentino v Mierzwa, 25 NY2d 59; 106 Mile Transp. Assoc. v Koch, 656 F Supp 1474; Matter of Dreves v New York Power Auth., 131 AD2d 182; Village of Croton-On-Hudson v County of Westchester, 38 AD2d 979.) II. The Village of Kings Point’s ongoing use of the Western Corner for nonpark purposes can be enjoined under the public trust doctrine so long as it remains unauthorized. (Matter of Ackerman v Steisel, 104 AD2d 940, 66 NY2d 833; Williams v Gallatin, 229 NY 248; Friends of Van Cortlandt Park v City of New York, 95 NY2d 623; Brooklyn Park Commrs. v Armstrong, 45 NY 234; Illinois Central R. Co. v Illinois, 146 US 387; Matter of Central Parkway, 140 Misc 727; Stephenson v County of Monroe, 43 AD2d 897; Chatham Green v Bloomberg, 1 Misc 3d 434; Gowanus Indus. Park, Inc. v City of New York, 15 AD3d 311, 5 NY3d 708; Phillips Petroleum Co. v Mississippi, 484 US 469.) III. The Village of Kings Point abandoned its laches defense, which is unavailable in public trust cases and was not established by the facts. (Telaro v Telaro, 25 NY2d 433; Matter of Burke v Sugarman, 35 NY2d 39; Matter of Cash v Bates, 301 NY 258; Patrolman’s Benevolent Assn. of Southampton Town, Inc. v Town of Southampton, 2009 NY Slip Op 32660[U]; Natural Resources Defense Council, Inc. v United States Army Corps of Engrs., 399 F Supp 2d 386; Steubing v Brinegar, 511 F2d 489; Save the Courthouse Comm. v Lynn, 408 F Supp 1323; Flacke v NL Indus., 228 AD2d 888; Student Pub. Interest Research Group of N.J., Inc. v P.D. Oil & Chem. Stor., Inc., 627 F Supp 1074.)

      Eric T. Schneiderman, Attorney General, New York City (Bethan A. Davis Noll, Barbara D. Underwood and Richard Dearing of counsel), for respondent in the second above-entitled action.
    I. The State of New York’s claim to enjoin the Village of Kings Point’s Department of Public Works project is not barred by the statute of limitations. (Friends of Van Cortlandt Park v City of New York, 95 NY2d 623; Village of Croton-On-Hudson v County of Westchester, 38 AD2d 979, 30 NY2d 959; Bates v Holbrook, 171 NY 460.) II. The claim to enjoin the Village of Kings Point’s existing nonpark use of part of the Western Corner is not time-barred. (Friends of Van Cortlandt Park v City of New York, 95 NY2d 623; Matter of Ackerman v Steisel, 104 AD2d 940, 66 NY2d 833; Johnson v Town of Brookhaven, 230 AD2d 774; Tobin v Hennessy, 220 App Div 695; Bloomingdales, Inc. v New York City Tr. Auth., 13 NY3d 61; Covington v Walker, 3 NY3d 287; 509 Sixth Ave. Corp. v New York City Tr. Auth., 15 NY2d 48; Matter of Burke v Sugarman, 35 NY2d 39; Lucchesi v Perfetto, 72 AD3d 909; 1050 Tenants Corp. v Lapidus, 289 AD2d 145.) III. The Village of Kings Point’s laches argument is forfeited and meritless. (Matter of LaPine, 18 AD3d 552; Matter of Cortlandt Nursing Home v Axelrod, 66 NY2d 169; Telaro v Telaro, 25 NY2d 433; Alfred L. Snapp & Son, Inc. v Puerto Rico ex rel. Barez, 458 US 592; People v Grasso, 11 NY3d 64; Matter of Daleview Nursing Home v Axelrod, 62 NY2d 30; Board of Supervisors of Richmond County v Ellis, 59 NY 620; Matter of Burke v Sugarman, 35 NY2d 39; People v Hawkins, 11 NY3d 484; Matter of Schulz v State of New York, 81 NY2d 336.)

      Wade Beltramo, General Counsel, Albany, for New York State Conference of Mayors and Municipal Officials, amicus curiae in the first above-entitled action.
    I. Local governments should be allowed to assert the defense of laches in claims for alienation of parkland to prevent the waste of municipal resources and taxpayer dollars and to minimize the disruption of municipal operations. (Matter of Barresi v County of Suffolk, 72 AD3d 1076; Dwyer v Mazzola, 171 AD2d 726; Weiss v Mayflower Doughnut Corp., 1 NY2d 310.) II. Local governments should be allowed to assert laches as a defense to challenges of impermissible parkland alienation in order to prevent problems of proving the claims being adjudicated. (Friends of Van Cortlandt Park v City of New York, 95 NY2d 623; Powell v City of New York, 85 AD3d 429; Matter of Angiolillo v Town of Greenburgh, 290 AD2d 1; Grayson v Town of Huntington, 160 AD2d 835; Chatham Green v Bloomberg, 1 Misc 3d 434; Matter of Jones v Amicone, 27 AD3d 465; Blanco v American Tel. & Tel. Co., 90 NY2d 757; Meyer v Frank, 550 F2d 726.)

      Andrew A. Rafter, Brooklyn, for Citizens Campaign for the Environment and others, amici curiae in the first and second above-entitled actions.
    I. A decision in favor of the Village of Kings Point in this case would decimate the public trust doctrine and threaten parkland throughout the state. (Williams v Gallatin, 229 NY 248.) II. Public trust lands are not subject to adverse possession. (Rodrigues v Catskill Revitalization Corp., 302 AD2d 762; Lewis v Village of Lyons, 54 AD2d 488; Burbank v Fay, 65 NY 57; People v Baldwin, 197 App Div 285; Walsh’s Inc. v County of Oswego, 9 AD2d 393; Matter of Harbison v City of Buffalo, 4 NY2d 553; Garcia v Holze, 94 AD2d 759; Flacke v Onondaga Landfill Sys., 69 NY2d 355.) III. The equities favor respondents.
   OPINION OF THE COURT

Pigott, J.

Kings Point Park occupies 173 acres on the Great Neck Peninsula of Long Island. Defendant Village of Kings Point acquired the property for park purposes in the 1920s. At the western end of the park is the heavily wooded “Western Corner,” occupying 5.4 acres, an area known for its mature trees and hiking trails. It is this section of Kings Point Park that is the subject of the present appeal.

In 1938, the Village leased Kings Point Park to the Great Neck Park District with the understanding that the Park District would manage and maintain the property “as a natural and scenic park.” In 1946, the Village and Park District executed an addendum to the lease, excluding the Western Corner from the leased lands, because the Village wished to reserve that portion of the park for a pistol range for local police and for storage of highway materials and supplies. The Western Corner was reserved in this fashion each time the lease was renewed. In 1966, the State Comptroller informed the Village that its lease required legislative authorization, and, as a result, legislation was passed the following year that “validated, ratified and confirmed” the most recent lease (L 1967, ch 563, § 2, 1967 McKinney’s Session Laws of NY at 606). Although much of the Western Corner remains undisturbed mature woodland, the Village has erected structures in the northern part of the Western Corner, including a garage and a Quonset hut, measuring about 1,700 square feet, for the storage of road salt.

In November 2008, the Village adopted a proposal to deforest, regrade and enclose the Western Corner and build a Department of Public Works (DPW) facility. The proposed facility, approximately 12,000 square feet in area, would include a diesel-truck garage, a road-sign shop, administrative offices, and crew quarters, and be enclosed by a chain-link fence. The proposal also envisaged the construction of an asphalt roadway and parking area. The Village did not seek legislative authorization.

Plaintiffs Daniel Capruso, Alan Berkower and Elizabeth Allen, who live near Kings Point Park, commenced an action against the Village, its Mayor and its Board of Trustees in March 2009, seeking to enjoin both the Village’s proposed DPW project and its current use of the Western Corner for storage of highway materials and supplies, as unlawful uses of parkland in violation of the common-law “public trust doctrine.” Following proceedings not pertinent to this appeal, the State of New York commenced an action against the Village seeking the same relief, but only with respect to the Village’s proposed DPW project. The State moved for a preliminary injunction with respect to the DPW project. Defendants cross-moved to dismiss both complaints as barred by the applicable statute of limitations and laches.

In orders dated July 29, 2009 and November 18, 2009, Supreme Court denied defendants’ cross motions and granted plaintiffs’ motion for a preliminary injunction (34 Misc 3d 1240[A], 2009 NY Slip Op 52829[U] [2009]; 2009 NY Slip Op 33338[U] [2009]). An interlocutory appeal followed. The Appellate Division affirmed Supreme Court’s first order insofar as reviewed and its second order insofar as appealed from (78 AD3d 877 [2d Dept 2010]).

Following discovery, plaintiffs and the State moved for summary judgment. In June 2011, Supreme Court granted their motion, permanently enjoining the Village from proceeding with the DPW facility project, enjoining defendants from obstructing existing access to Kings Point Park without explicit and specific approval from the State Legislature and directing defendants to remove all materials, equipment, and physical alterations, including structures, under their control from the Western Corner. Supreme Court also awarded the individual plaintiffs their reasonable attorneys’ fees and other expenses. The Appellate Division modified Supreme Court’s order and judgment, to delete the provision concerning attorneys’ fees and expenses, and, as so modified, affirmed (102 AD3d 902 [2d Dept 2013]).

We granted defendants leave to appeal from the Appellate Division’s more recent, final order, bringing the earlier, nonfinal order up for review. We now affirm.

Defendants concede that the Western Corner is dedicated parkland and that the present and proposed uses of it have not been authorized by the State Legislature and thus violate the public trust doctrine. The State’s “legislative approval is required when there is a substantial intrusion on parkland for non-park purposes” (Friends of Van Cortlandt Park v City of New York, 95 NY2d 623, 630 [2001]; see also Williams v Gallatin, 229 NY 248, 253 [1920]), and defendants do not dispute that their present and proposed uses of the Western Corner constitute substantial intrusion on parkland for nonpark purposes. In a similar vein, they concede that the exclusion of the Western Corner in the amended lease did not remove that part of Kings Point Park from the purview of the public trust doctrine. Instead, they argue that the claims brought by plaintiffs and the State are time-barred.

Defendants raise different defenses with regard to plaintiffs’ respective causes of action. With respect to the challenge to the proposed construction of the DPW facility, defendants contend that use of the Western Corner for nonpark purposes, particularly storage of highway materials and supplies, has been ongoing since the lease addendum of 1946 that excluded the Western Corner, and that the proposed DPW facility would amount to “nothing more than a change in the nature and scope of an ongoing non-park use.” As such, defendants contend, plaintiffs should have challenged nonpark use within six years of the 1946 addendum, under CPLR 213 (1) (see generally Solnick v Whalen, 49 NY2d 224, 229-230 [1980]), or, at the latest, within six years of the date when the Village began to store highway materials and supplies in the Western Corner.

However, the difference in scale between the present use and the proposed facility is substantial, and there is no record support to conclude otherwise. A project involving the construction of a DPW facility measuring some 12,000 square feet in area, regrading, paving of access roads, destruction of numerous mature trees, and removal of hiking trails is not merely a change in the nature and scope of a road salt storage facility. Thus, we conclude that the causes of action challenging the proposed project are not barred by the statute of limitations.

With respect to plaintiffs’ second cause of action, seeking to enjoin the Village’s present nonpark use of part of the Western Corner, defendants’ contention that plaintiffs should have brought their action within six years of the change in the use of the Western Corner has more resonance. Plaintiffs, however, respond that the “continuing wrong doctrine” applies here to toll the running of the statute of limitations.

We have applied the continuing wrong doctrine

“in certain cases such as nuisance or continuing trespass where the harm sustained by the complaining party is not exclusively traced to the day when the original objectionable act was committed. The rule is based on the principle that continuous injuries create separate causes of action barred only by the running of the statute of limitations against each successive trespass. The repeated offenses are treated as separate rights of action and the limitations period begins to run as to each upon its commission” (Covington v Walker, 3 NY3d 287, 292 [2004], cert denied 545 US 1131 [2005] [citations omitted]).

The doctrine applies here to ongoing use of parkland alleged to violate the public trust doctrine.

The harm sustained by the public when structures having “no connection with park purposes . . . encroach upon [parkland] without legislative authority plainly conferred” (Williams, 229 NY at 253) cannot be traced exclusively to the day when the illegal encroachment began. “In New York, we have consistently characterized an unlawful encroachment as a continuous trespass giving rise to successive causes of action” (509 Sixth Ave. Corp. v New York City Tr. Auth., 15 NY2d 48, 52 [1964]). Even though here, because the Village owns the parkland, the encroachment is not trespass, it clearly bears the hallmark of continuity common to the trespass cases: defendants are, continuously, in violation of the public trust doctrine and able to abate that wrong. Just as the failure of a landlord to repair a building’s common elements, in violation of bylaws, “constituted a continuing wrong that is not referable exclusively to the day the original wrong was committed” (Kaymakcian v Board of Mgrs. of Charles House Condominium, 49 AD3d 407, 407 [1st Dept 2008] [internal quotation marks omitted]) and “[t]he alleged violation of defendants’ contractual obligations to comply with the law and refrain from interfering with the rights of other lessees amounts to a continuous or recurring wrong” (1050 Tenants Corp. v Lapidus, 289 AD2d 145, 146 [1st Dept 2001]), so does a municipality’s ongoing failure to comply with the law and seek legislative authorization for nonpark use of parkland. The harm does not consist of the lingering effects of a single, discrete incursion, but rather is a continuous series of wrongs. In short, the claim here is “predicated on continuing unlawful acts and not on the continuing effects of earlier unlawful conduct” (Shelton v Elite Model Mgt., Inc., 11 Misc 3d 345, 361 [Sup Ct, NY County 2005] [internal quotation marks omitted], quoting Selkirk v State of New York, 249 AD2d 818, 819 [3d Dept 1998]).

The Village argues that a violation of the public trust doctrine differs from trespass and nuisance situations since the latter may not be discovered until long after the initial physical invasion of private property rights, whereas acts in violation of the public trust doctrine should be immediately discernible. For their part, plaintiffs and the State cite our decision in Matter of Ackerman v Steisel (66 NY2d 833, 835 [1985], affg for reasons stated below 104 AD2d 940 [2d Dept 1984]), in which we affirmed an order of the Appellate Division directing the New York City Departments of Sanitation and Transportation to remove decades-old public works facilities from parkland in Queens. While we agree with the Village that Ackerman is not dispositive, insofar as a statute of limitations defense was not raised, we do not accept the Village’s analysis of public trust doctrine cases. Rather, we agree with those amici that observed that “[i]t would be unreasonable to expect ordinary citizens who use . . . parks to know whether a particular use by a municipality has received approval by the State Legislature and whether municipal infrastructure located on parkland is intended to serve the park or public areas outside of the park.”

In sum, under the continuing wrong doctrine, plaintiffs are able to challenge defendants’ ongoing violation of the public trust doctrine at any time while the violation lasts, without being barred by the statute of limitations. We need not decide here whether the continuing wrong doctrine would apply to an allegation that a discrete event such as the sale of parkland to a private developer was in violation of the public trust doctrine (see Matter of Shapiro v Town of Ramapo, 98 AD3d 675, 677 [2d Dept 2012], lv dismissed 20 NY3d 994 [2013]).

The Village argues, in the alternative, that the claims in this case are barred by laches.

“Laches is defined as such neglect or omission to assert a right as, taken in conjunction with the lapse of time, more or less great, and other circumstances causing prejudice to an adverse party, operates as a bar in a court of equity. The essential element of this equitable defense is delay prejudicial to the opposing party” (Matter of Schulz v State of New York, 81 NY2d 336, 348 [1993] [internal quotation marks and ellipsis omitted]; see also Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801, 816 [2003]).

Initially, as a matter of law, laches cannot bar the State’s cause of action. “It is settled that the equitable doctrine of laches may not be interposed as a defense against the State when acting in a governmental capacity to enforce a public right or protect a public interest” (Matter of Cortlandt Nursing Home v Axelrod, 66 NY2d 169, 178 n 2 [1985]). Here, the State is acting in a governmental capacity to protect a public interest, and thus laches does not apply. Moreover, the doctrine of laches has no application when plaintiffs allege a continuing wrong (see Matter of Burke v Sugarman, 35 NY2d 39, 45 [1974]), as they do here with respect to the ongoing use of the Western Corner. Finally, Supreme Court did not abuse its discretion in ruling that laches did not apply to the individual plaintiffs’ challenge to the proposed use of the Western Corner.

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

Chief Judge Lippman and Judges Graffeo, Read, Smith, Rivera and Abdus-Salaam concur.

Order affirmed, with costs.

      . The Village reserved the right to use a particular area in the park, the location of which is disputed by the parties, “for dumping ashes, clean refuse and waste material from the Village.”

      . The metes and bounds description of Kings Point Park contained in the 1967 law includes the Western Corner, however.

      . While some cases in which we have applied the continuous wrong doctrine have involved “intermittent and recurring injuries to another” (Meruk v City of New York, 223 NY 271, 276 [1918]; see also e.g. Reed v State, 108 NY 407, 414 [1888]), others involved harms of a continuous rather than episodic nature (see e.g. Silsby Mfg Co. v State, 104 NY 562, 569 [1887] [“If the proper facts upon which to base an action were found, it would then appear that the State had unlawfully used a certain amount of water, to the use of which the claimant had an undoubted right, and every day such use continued a new cause of action arose therefor in favor of the claimant”]). Harms inflicted by illegal use of property
      “need not be intermittent or episodic in order for there to be successive causes of action continuously accruing throughout the period that harm is suffered . . . that is, the period during which the wrongful act has consequences adverse to the use and enjoyment of the property. Injuries can also be fluid and constant through time, recurring not from time to time, but, in theory, second by second, as, for example, when a structure such as an elevated street railroad encroaches upon easements of light, air and access. A structure so encroaching ... is regarded as a continuous trespass giving rise to successive causes of action” (Amax, Inc. v Sohio Indus. Prods. Co., 121 Misc 2d 814, 815-816 [Sup Ct, NY County 1983] [citations omitted]).