author: Chief Judge Lippman. Smith, J. (dissenting).

text:
    [965 NE2d 240, 942 NYS2d 13]
    Minerva Vega, Respondent, v Restani Construction Corp. et al., Defendants, and General Fence Corporation, Appellant.
    Argued January 3, 2012;
    decided February 16, 2012

      POINTS OF COUNSEL

      O’Connor Redd LLP, White Plains (Amy Lynn Fenno of counsel), for appellant.
    I. An ordinary and obvious hazard of Vega’s work as a park maintenance worker was the lifting of heavy garbage cans. (Marin v San Martin Rest., 287 AD2d 441; Anderson v Bush Indus., 280 AD2d 949; Abbadessa v Ulrik Holding, 244 AD2d 517; Jackson v Board of Educ. of City of N.Y., 30 AD3d 57; Imtanios v Goldman Sachs, 44 AD3d 383, 9 NY3d 1028; Keating v Cookingham, 223 AD2d 997; Kowalsky v Conreco Co., 264 NY 125; Gurung v Arnav Retirement Trust, 79 AD3d 969; Waiters v Northern Trust Co. of N.Y., 29 AD3d 325; Appelbaum v 100 Church, 6 AD3d 310.) II. Since General Fence did not have exclusive control over Loreto Park or the garbage can Vega alleges caused her injury the doctrine of res ipsa loquitur is inapplicable. (Durso v Wal-Mart Stores, 270 AD2d 877; Finocchio v Crest Hollow Club at Woodbury, 184 AD2d 491; Nesbit v New York City Tr. Auth., 170 AD2d 92; Kowalski v Lob-laws, Inc., 61 AD2d 340; Pavon v Rudin, 254 AD2d 143; Banca Di Roma v Mutual of Am. Life Ins. Co., Inc., 17 AD3d 119; Wolf v American Tract Socy., 164 NY 30; Abbott v Page Airways, 23 NY2d 502; Cole v Swagler, 308 NY 325; Manley v New York Tel. Co., 303 NY 18.) III. General Fence met its burden of proof on its motion for summary judgment and plaintiff did not create an issue of fact warranting denial of the motion. (Kambat v St. Francis Hosp., 89 NY2d 489; Dermatossian v New York City Tr. Auth., 67 NY2d 219; Corcoran v Banner Super Mkt., 19 NY2d 425; Wolf v American Tract Socy., 164 NY 30; JMD Holding Corp. v Congress Fin. Corp., 4 NY3d 373; Keating v Cooking-ham, 223 AD2d 997; Spearmon v Times Sq. Stores Corp., 96 AD2d 552.)

      Pollack, Pollack, Isaac & De Cicco, New York City (Brian J. Isaac and Jillian Rosen of counsel), and Law Offices of Stillman & Stillman, Bronx, for respondent.
    I. The First Department’s order denying General Fence summary judgment is correct; plaintiffs accident was not caused by a condition inherent in her work and there is not a scintilla of evidence that Ms. Vega

      performed her work carelessly. (Marin v San Martin Rest., 287 AD2d 441; Anderson v Bush Indus., 280 AD2d 949; Abbadessa v Ulrik Holding, 244 AD2d 517; Jackson v Board of Educ. of City of NY., 30 AD3d 57; Imtanios v Goldman Sachs, 44 AD3d 383, 9 NY3d 1028; Keating v Cookingham, 223 AD2d 997; Steiner v Benroal Realty Assoc., 290 AD2d 551; Knisley v Pratt, 148 NY 372; Kowalsky v Conreco Co., 264 NY 125; Mullin v Genesee County Elec. Light, Power & Gas Co., 202 NY 275.) II. The doctrine of res ipsa loquitur is applicable since plaintiff raised a question of fact on the issue of exclusive control by General Fence. (People v Geraci, 85 NY2d 359; Caraballo v Paris Maintenance Co., 2 AD3d 275; Morejon v Rais Constr. Co., 7 NY3d 203; Interested Underwriters at Lloyds v Associated Ceilings Corp., 55 NY2d 635; Pollock v Rapid Indus. Plastics Co., 113 AD2d 520; Corcoran v Banner Super Mkt., 19 NY2d 425; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851; Coastal Sheet Metal Corp. v Martin Assoc., Inc., 63 AD3d 617; Bryan v 250 Church Assoc., LLC, 60 AD3d 578; Torres v Industrial Container, 305 AD2d 136.) III. General Fence failed to meet its prima facie burden of eliminating all issues of fact and plaintiff raised questions of fact through defendant’s own evidence. (Colt v Great Atl. & Pac. Tea Co., 209 AD2d 294; Simmons v City of New York, 146 AD2d 624; Alvarez v Prospect Hosp., 68 NY2d 320; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851; Oían v Farrell Lines, 64 NY2d 1092.)
   OPINION OF THE COURT

Chief Judge Lippman.

We hold that plaintiff, a park maintenance worker, is entitled to a trial on the merits of her claim that a subcontractor’s improper disposal of construction debris caused her serious and permanent injuries when, in the course of her employment in a Bronx park, she attempted to move a garbage barrel containing such waste. Whether or not plaintiff will ultimately prevail, she is entitled to present her claim to a trier of fact, and, accordingly, we find that the lower courts correctly denied the summary judgment motion of defendant-appellant General Fence Corporation (GFC).

In 2001, defendant general contractor Restani Construction Corporation (Restani) was awarded a bid to work on the renovation of several Bronx parks, including Loreto Park. Defendant GFC was hired as a subcontractor on the project. Plaintiff

Minerva Vega, a park maintenance worker employed by the City of New York Parks and Recreation Department asserts that on the morning of May 28, 2002, when she attempted to pull a trash can from its location in Loreto Park in order to move it to the front entrance for pick up by the New York City Department of Sanitation she was unable to do so and felt a tear in her shoulder. Defendant’s coworker, Ms. Jackie Diaz averred that “[w]hen I looked in the garbage barrel that day, I saw chunks of cement that could only have come from the [other] workers who were repairing/fixing the park.” Plaintiff commenced the instant action against several defendants, including defendant-appellant GFC, alleging that the “accident occurred wholly as a result of the defendants’ negligence without any contributory negligence on [her] part.” The Appellate Division affirmed the Supreme Court’s denial of defendant’s motion for summary judgment (73 AD3d 641 [1st Dept 2010]). The Appellate Division granted defendant GFC’s motion for leave to appeal (2010 NY Slip Op 84110[U] [2010]) and we now affirm.

On a motion for summary judgment, facts must be viewed “in the light most favorable to the non-moving party” (Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 339 [2011]). Summary judgment is a drastic remedy, to be granted only where the moving party has “tender[ed] sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]) and then only if, upon the moving party’s meeting of this burden, the non-moving party fails “to establish the existence of material issues of fact which require a trial of the action” (id.). The moving party’s “[f]ailure to make [a] prima facie showing [of entitlement to summary judgment] requires a denial of the motion, regardless of the sufficiency of the opposing papers” (id. [emphasis added]). We conclude that GFC has failed to meet its burden as the moving party and that, in any event, assuming, for the sake of argument, that GFC has met its burden, plaintiff has set forth evidence sufficient to establish that there are genuine issues of material fact necessitating a trial.

Defendant GFC has failed to meet its burden of “demonstrating] the absence of any material issues of fact” (Alvarez, 68 NY2d at 324). In its counsel’s affirmation in support of its motion for summary judgment, GFC argued that “even had General Fence placed . . . concrete debris into the container (which it denies having done), putting[ ] debris into a garbage container is not an act of negligence upon which plaintiff can base a claim” and that “there is no evidence to support plaintiff’s contention that there was a concrete block in the garbage can” and “no evidence that General Fence . . . performed any concrete excavation at the site.” The affirmation relied on the affidavit of Dalton Johnson, principal owner of GFC, for the proposition that “General Fence did not place concrete into garbage containers as a general practice and would not have done so at this park if it had in fact performed excavation work.”

As a preliminary matter, we find GFC misapprehends the nature of the alleged circumstances of the accident here. GFC appears to view Ms. Vega’s alleged accident as a simple case of injury resulting from placing garbage into a garbage can. We disagree. While, as a general premise, the act of throwing ordinary garbage into a designated receptacle is unlikely to be negligent, GFC did not come forward with any evidence establishing that the disposal of construction debris into a public trash can by a subcontractor would not constitute negligence, and the cases on which it relies are distinguishable. A sharp contrast may be drawn between the present allegations of improper disposal of construction debris and the circumstances attendant to a homeowner placing a bulky couch on the curb for collection or park visitors filling a garbage can with common items of trash.

Nor did GFC prove that it did not place construction debris in the trash receptacle. GFC’s reliance on Mr. Johnson’s affidavit is misplaced. He averred that he did not remember whether GFC disposed of concrete and GFC has not placed any documentation on the record establishing either that it was not involved in the disposal of concrete as a result of its participation in the renovation project at Loreto Park, or, if it was, that the task was properly accomplished (i.e., paid invoices to contractors). Mr. Johnson’s failure to recall (and GFC’s apparent failure to document) whether it was involved in concrete disposal as part of the Loreto Park project is insufficient to meet GFC’s burden of demonstrating that there are no triable issues and that it is accordingly entitled to summary judgment. Additionally, Mr. Sal Restivo, of Restani, testified that he was “not sure” whether concrete was broken during the project and that the only two contractors at the site who would have broken concrete were Restani and GFC. Plaintiff testified during her March 11, 2006 deposition that she observed the breaking of “rock” as part of the work performed at the park. In addition, a work order for the renovation project at Loreto Park, dated February 20, 2002, lists “[r]emove reinforced concrete” as a task to be completed. Finally, contrary to GFC’s assertion in its affirmation, there is record evidence supporting Ms. Vega’s allegation that there was concrete in the trash can at the time of her accident. Ms. Diaz stated in her affidavit that she identified concrete in the garbage can on the day of the accident: “Minnie hurt her shoulder trying to move that garbage barrel and never came back to work after that day. When I looked in the garbage barrel that day, I saw chunks of cement.” It is not the function of a court deciding a summary judgment motion to make credibility determinations or findings of fact, but rather to identify material triable issues of fact (or point to the lack thereof) (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957] [noting that in deciding a motion for summary judgment “ ‘issue-finding, rather than issue-determination, is the key to the procedure’ ”] [citation omitted]).

There is a material factual dispute in this case over whether members of the public had access to the park in the days leading up to Ms. Vega’s accident. Mr. Restivo testified that Restani finished its work at the park on May 20th. However, there is evidence in the record, in the form of a Punch List, dated May 21, 2002, and a Weekly Progress Report dated May 24, 2002, suggesting that additional work was done after the 20th. During her March 11, 2006 deposition, Ms. Vega testified that she did not enter Loreto Park while the construction project was ongoing, but rather did some cleaning work on the outside of the park during that time. Her testimony also suggested that Loreto Park reopened to the public on May 26th, two days before her accident. When asked when the construction ended and Ms. Vega returned to her normal duties at the park, she replied “[t]hat was on the 20, the 26th, the 26th [of May].” However, plaintiffs coworker, Ms. Diaz, averred that “[t]he date of Minerva Vega’s accident, was our first day back to Loreto Park,” suggesting that the park may not have reopened until the day of the accident. Because GFC has failed to meet its burden of demonstrating that triable issues do not exist as to the identity of the party responsible for the allegedly negligent dumping, we cannot conclude on the basis of this record, that GFC was not responsible for placing the concrete into the garbage can.

GFC urges this Court to find that the risk of injury due to moving very heavy garbage cans was inherent in plaintiffs work and, as such, she is barred from recovery for injuries she sustained when attempting to move the garbage can allegedly made heavy by disposed concrete. This principle is derived from the common-law duty of an “employer ... to provide his employees with a safe place to work” and that duty “does not extend to hazards which are part of or inherent in the very work” being performed (Gasper v Ford Motor Co., 13 NY2d 104, 110 [1963]). It is discussed in various Appellate Division cases (see e.g. Anderson v Bush Indus., 280 AD2d 949, 950 [4th Dept 2001] [holding that “the hazard of being injured as a result of repeatedly lifting heavy boxes and loading them into a truck is inherent in the work of a UPS driver”]; Marin v San Martin Rest., 287 AD2d 441, 441 [2d Dept 2001] [holding that “(t)he hazard of being injured as a result of lifting a heavy garbage bag and loading it into a sanitation truck is inherent in the work of a sanitation worker”]). Assuming that this rule is applicable here where defendant is not plaintiffs employer and GFC is not the owner of the premises on which the accident allegedly occurred, based on this record, we cannot agree with GFC that as a matter of law, the risk of injury due to moving very heavy garbage cans filled with concrete was inherent in plaintiffs work. In support of its motion, GFC offered no evidence concerning the typical duties of someone working in plaintiffs position. Furthermore, plaintiff testified during her 2005 deposition that it was not part of her job to dispose of construction debris: “when they finished one area, finished the construction, then we cleaned whatever garbage cans had to be removed, not their garbage, but the garbage that people had left around the park in the garbage cans.” In addition, a representative of GFC, Mr. Johnson, made statements strongly suggesting that it was the responsibility of the contractors themselves, not the park maintenance staff, to dispose of concrete waste from the Loreto Park renovation project. Accordingly, we hold that GFC failed to meet its burden as the movant for summary judgment on this theory.

GFC argues that the hazard of a very heavy trash can filled with concrete was “ordinary and obvious,” and therefore that plaintiff is not entitled to recovery. In Abbadessa v Ulrik Holding (244 AD2d 517, 518 [2d Dept 1997], lv denied 91 NY2d 814 [1998]), the Appellate Division held that

“[w]hen a workman confronts the ordinary and obvious hazards of his employment, and has at his disposal the time and other resources (e.g., a coworker) to enable him to proceed safely, he may not hold others responsible if he elects to perform his job so incautiously as to injure himself.”

This rule is derived from general principles of negligence involving open and obvious hazards (cf. Tagle v Jakob, 97 NY2d 165, 169 [2001] [recognizing the longstanding rule that “a landowner has no duty to warn of an open and obvious danger”]). Abbadessa was an action by a sanitation worker against a property owner. Assuming this doctrine applies to the present case in which plaintiff sues a third party which does not own Loreto Park, we cannot agree that as a matter of law, the hazard in this case (the piece of concrete that rendered the can too heavy for plaintiff to move by herself without injury) was “ordinary and obvious.” We hold that there remain triable issues of fact pertaining to whether the risk that the trash can could be filled with concrete was “ordinary and obvious.” The record evidence suggests that it would have been unusual and abnormal for there to be concrete in the garbage can. In addition, while we do not equate obviousness with visibility, we find it significant that plaintiff’s coworker, Ms. Diaz averred that “[t]he garbage barrel was pretty full of the cement chunks but they were at the bottom and the garbage barrels were very wide. There was garbage on top of the cement and you couldn’t see the cement chunks.” It may be possible, as GFC argues, that the hazard, while not visible, was otherwise obvious because plaintiff could have hefted the can in order to test its weight before attempting to pull it. However, on the basis of the present record, we cannot conclude that the claimed overloading condition was obvious, and that plaintiff should have known that the can was very heavy due to the presence of concrete, or that attempting to move it on her own would cause injury.

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

Smith, J. (dissenting).

I dissent because I see no basis on which a finder of fact could rationally conclude, by a preponderance of the evidence, that an employee of General Fence Corporation (GFC) put the concrete in the trash can.

The affidavit of GFC’s principal owner, while not claiming a specific recollection of the events, flatly denied that GFC was the guilty party. Johnson testified that he did not remember whether GFC did any concrete removal at this site; that it was GFC’s “custom and practice ... to physically remove any and all debris that it creates from the work site”; and that “[i]n no event would [GFC] have disposed of concrete or concrete debris in one of the refuse containers intended for the public’s usage.”

I am mystified by the majority’s conclusion that this was insufficient to meet GFC’s burden on summary judgment. What else was Johnson supposed to say? The majority faults him for his “failure to recall” and GFC for its “apparent failure to document . . . whether it was involved in concrete disposal” (majority op at 504). But a small business cannot reasonably be expected to produce specific proof, years after the event, of everything it did not do. If I were asked whether I put a large, heavy object in a public trash can three years ago, I could only answer as Johnson did: I do not remember everything I did then, but I know from my custom and practice that I did not do that. GFC’s reliance on its customary procedures was sufficient to meet its summary judgment burden.

In opposition to GFC’s summary judgment motion, plaintiff offered no evidence at all to connect GFC to the disposal of the concrete. If concrete work was done on this project, it could equally well have been done either by the general contractor, Restani, or by GFC—indeed, my reading of the record suggests that it is slightly more likely that Restani did any such work. And a third possibility existed: that the source of the debris in the trash can was neither of those two contractors, but someone who entered the park after the contractors’ work was done. The construction job was largely completed by May 20, eight days before the accident, and there is no evidence of any work done after May 24. (Any concrete removal would have to have been done long before.) Plaintiff’s own testimony, as the majority acknowledges, “suggested that Loreto Park reopened to the public on May 26th, two days before her accident” (majority op at 505). The majority strains to find in the testimony of plaintiffs coworker, who said that the day of the accident “was our first day back to Loreto Park” (emphasis added), a basis for the majority’s surmise “that the park may not have reopened until the day of the accident” (id. [emphasis added]).

No plaintiffs verdict here could rest on anything but speculation. Summary judgment should have been granted dismissing the complaint.

Judges Ciparick, Graffeo and Jones concur with Chief Judge Lippman; Judge Smith dissents in a separate opinion in which Judges Read and Pigott concur.

Order affirmed, etc.

      . Restani is a defendant in this action but is not a party to this appeal.

      . Plaintiff testified during her May 24, 2005 deposition that her injuries included “a complete tear of the rotator cuff’ in three different places.


source: Caselaw Access Project

author: Read, J.

license: Public Domain

text:
    [965 NE2d 906, 942 NYS2d 404]
    David Mirvish, Appellant, v Hanno D. Mott, Individually and as Executor of Yulla H. Lipchitz, Deceased, et al., Respondents.
    Argued January 3, 2012;
    decided February 16, 2012

      POINTS OF COUNSEL

      Carter Ledyard & Milburn LLP, New York City (Gary D. Sesser, Ronald D. Spencer, Susan B. Kalib and Judith M. Wallace of counsel), for appellant.
    I. Yulia Lipchitz’ gift of “The Cry” to Biond Fury was valid. (Gruen v Gruen, 68 NY2d 48; Matter of Szabo, 10 NY2d 94; Matter of Van Alstyne, 207 NY 298; Beaver v Beaver, 117 NY 421; Sofsky v Rosenberg, 76 NY2d 927; Bavin v Isman, 228 NY 1; Matter of Brown, 252 NY 366; Indig v Finkelstein, 23 NY2d 728; Cowee v Cornell, 75 NY 91; Anagnostou v Stifel, 168 AD2d 256.) II. The Appellate Division failed to distinguish between the right of ownership and the remedy of conversion. (Tanges v Heidelberg N. Am., 93 NY2d 48; Solomon R. Guggenheim Found. v Lubell, 77 NY2d 311; Bakalar v Vavra, 619 F3d 136.) III. The Appellate Division erred in holding that Mott’s actions before 2004 constituted conversion. (State of New York v Seventh Regiment Fund, 98 NY2d 249; Solomon R. Guggenheim Found. v Lubell, 77 NY2d 311; Vigilant Ins. Co. of Am. v Housing Auth. of City of El Paso, Tex., 87 NY2d 36; Sporn v MCA Records, 58 NY2d 482; Pease v Smith, 61 NY 477; Stanley v Morgan Guar. Trust Co. of NY., 173 AD2d 390; General Stencils v Chiappa, 18 NY2d 125.)

      Rottenberg Lipman Rich, P.C., New York City (Harry W
      Lipman and Robert A. Freilich of counsel), for respondents.
    I. The Appellate Division correctly held that Mirvish’s causes of action are time-barred. (Sporn v MCA Records, 58 NY2d 482; Ely-Cruikshank Co. v Bank of Montreal, 81 NY2d 399; State of New York v Seventh Regiment Fund, 98 NY2d 249; Varga v Credit-Suisse, 5 AD2d 289, 5 NY2d 865; Guild v Hopkins, 271 App Div 234, 297 NY 477; Solomon R. Guggenheim Found. v Lubell, 77 NY2d 311; Brown v Garey, 267 NY 167; Boyce v Brockway, 31 NY 490; Laverty v Snethen, 68 NY 522; Employers’ Fire Ins. Co. v Cotten, 245 NY 102.) II. Mirvish’s claims are time-barred because Fury failed to sue within three years of his alleged receipt of the gift instrument. (Telaro v Telaro, 25 NY2d 433; New York City Tr. Auth. v New York Historical Socy., 167 Misc 2d 31, 237 AD2d 419; Elghanayan v Elghanayan, 265 AD2d 262; State of New York v Seventh Regiment Fund, 98 NY2d 249; Martin v Briggs, 235 AD2d 192; SongByrd, Inc. v Estate of Grossman, 206 F3d 172, 531 US 824; Herrington v Verrilli, 151 F Supp 2d 449.) III. Mirvish cannot prove that Ms. Lipchitz completed a valid inter vivos gift of “The Cry.” (Gruen v Gruen, 68 NY2d 48; Matter of Abramowitz, 38 AD2d 387, 32 NY2d 654; Freeman v Johnston, 84 NY2d 52, 513 US 1016; Zuckerman v City of New York, 49 NY2d 557; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065; Sofsky v Rosenberg, 76 NY2d 927; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106; Davin v Isman, 228 NY 1; Gaines v Huyler, 113 Misc 188, 206 App Div 777, 239 NY 611; Matter of Scherzinger, 272 App Div 722.) IV Dismissing Mirvish’s claim to ownership on grounds of untimeliness or failure of delivery makes for good public policy.
   OPINION OF THE COURT

Read, J.

Jacques Lipchitz, the Russian-born cubist sculptor, died in 1973 at the age of 81. He was survived by his wife, Yulia H. Lipchitz, who inherited many valuable works of art from her husband, including “The Cry,” a 1,100-pound bronze sculpture, cast three of seven, 1928-1929. After she was widowed, Yulia began a relationship with Biond Fury as early as 1980; the two of them lived together for 17 years prior to her death on July 20, 2003 at the age of 92.

From time to time, Yulia would make gifts to Fury, including art created by her late husband. She memorialized these gifts by giving Fury a picture of the artwork with a writing describing the piece and declaring that it was a gift. After Yulia’s death, Fury produced a photograph of “The Cry” with the following notation on the back, in Yulia’s handwriting: “I gave this sculpture ‘The Cry’ to my good friend Biond Fury in appreciation for all he did for me during my long illness. With love and my warm wishes for a Happy Future, Yulia Lipchitz October 2, 1997, New York.” At the time, “The Cry” was apparently in storage in New York in the custody of the Marlborough Gallery, Inc. (Marlborough), the Manhattan art dealer.

About a year later, the French minister of culture and communication approached Pierre Levai, Marlborough’s president, to ask about the possibility of placing “The Cry” on exhibit in Paris for a period of five years, “with a view to its ultimately being purchased.” The minister proposed to include “The Cry” in a group of modern and contemporary works to be installed in the Tuileries Gardens near the Louvre Museum. On November 11, 1998, Levai wrote the minister that he had discussed the French government’s request “with the Lipchitz family,” who agreed to loan the sculpture for three years, unless Yulia died earlier. At the conclusion of the loan, Levai continued, the family was “prepared to negotiate a sale of the work,” but if “[a]t the conclusion of the loan, . . . the sculpture [was] not purchased, it [was] to be returned to the Lipchitz family in New York at the borrower’s cost.”

Levai discussed the loan of “The Cry” to the French government only with Mott, never with Yulia. Mott, who at the time did not know about the handwritten gift instrument conveying “The Cry” to Fury, is the executor and a residuary beneficiary of one third of his mother’s estate. He is an attorney, and he handled Yulia’s financial affairs and held power of attorney from her for many years prior to her death. Mott also performed legal work for Marlborough, beginning as early as 1980.

According to Mott, he talked to his mother about the loan and, on her behalf, “consented that [‘The Cry’] should be put on display in the [Tuileries Gardens] in Paris and it was and it had [Yulia’s] name on the loan.” The French government at some point also inquired if, once the exhibition was over, Yulia was willing to make a gift of “The Cry.” Mott testified that Yulia told him “No, of course not, but if they want to buy it, they can buy it”—i.e., that “we would [give] ... a right of first refusal.” “The Cry” was in Paris, subject to this agreement, when Yulia died. Her will did not mention “The Cry” or any other specific work of art. Fury claims not to have known that the sculpture was loaned to the French government in 1998.

On March 9, 2004, Fury’s attorney sent a letter to Mott’s attorney demanding immediate delivery of “The Cry” to Fury; he enclosed a copy of the deed of gift. Fury’s attorney sent a second letter on September 30, 2004, noting that there had been no response to “[the] March 9, 2004 demand to deliver ‘[T]he Cry’ to Mr. Fury.” Then on January 12, 2005, Fury’s attorney wrote yet again, complaining that he had “not received any response to [his] repeated written demands for delivery of ‘The Cry’ which was indisputably gifted to Mr. Fury by Yulia Lipchitz”; renewing the demand; and warning that “[f] allure to deliver [the sculpture would] require commencement of a proceeding under SCPA 2105.” This provision authorizes a person with a claim to property or the proceeds thereof alleged to be in a fiduciary’s possession or control to petition Surrogate’s Court for an order requiring the fiduciary to show cause why he should not deliver the property or proceeds (see SCPA 2105 [1]). Upon return of process, the surrogate must “determine the respective interests of the parties in the property or the proceeds or value thereof and make a decree accordingly” (SCPA 2105 [3]).

Mott claims to have sold “The Cry” and three other sculptures in a package deal in July 2004 to Marlborough International Fine Art Establishment (Marlborough International) for $1 million. He testified that he did this because these four works had been on consignment for a very long time, and the estate needed the cash; moreover, he “did not believe that there was any merit to [Fury’s] claim.” But in a letter to the French minister dated January 10, 2005, six months after the purported sale of “The Cry” to Marlborough International, Mott informed the minister that Yulia had passed away in 2003; noted that “the agreement for the loan also provided that at its conclusion the Lipchitz family would be prepared to negotiate a sale of the Sculpture”; and inquired “[o]n behalf of the family . . . whether the Ministry [had] any interest in acquiring the Sculpture at this time before arrangements are made for its return.”

On September 15, 2005, Fury sold his interest in “The Cry” to David Mirvish, an art collector and gallery owner in Toronto, for $220,000. On October 4, 2005, Mirvish’s attorney notified Mott of the sale, and demanded that he let Mirvish know where the sculpture was and “allow [him] to take possession of it within 10 days of [the] letter”; and “[p]ending resolution of this matter, . . . make no sale or other transfer of the sculpture nor remove it from its present location.” In a letter dated October 14, 2005, the estate’s attorney refused this demand, asserting that “the Estate was the true owner of [‘The Cry’], which was never subject of a valid inter vivos gift from [Yulia] to Biond Fury”; on October 20, 2005, he additionally informed Mirvish’s attorney that the sculpture “had been on consignment to a gallery for many years and was sold over a year ago.”

By petition dated October 26, 2005, Mott, as the executor of Yulia’s estate, brought an action against Fury, asking Surrogate’s Court for a determination pursuant to SCPA 209 (4) that the estate “was the rightful owner of, and . . . legitimately sold and passed title of the Cry.” Section 209 (4) empowers Surrogate’s Court “[t]o determine a decedent’s interest in any property claimed to ... be property available for distribution under [the] will. . ., and to determine the rights of any persons claiming an interest therein, as against the decedent, or as between themselves, and to construe any instruments made by [decedent] affecting such property.”

Mirvish subsequently commenced this action in Surrogate’s Court against Mott, individually and as executor of Yulia’s estate, by petition dated July 31, 2006. He asserted various causes of action against Mott, the estate or both; specifically, he alleged conversion; sought to impose a constructive trust on proceeds from the sale of “The Cry” received by the estate; asked for an order pursuant to SCPA 2105 compelling delivery of the property or the proceeds from its sale; alleged replevin; and demanded an order pursuant to SCPA 2102 disclosing the sculpture’s whereabouts. In September 2006, Mott filed an answer that raised a statute of limitations defense.

Upon Mirvish’s application, Surrogate’s Court issued an order dated September 12, 2007 directing Mott to hold in escrow the $1 million that he “received on his alleged sale of The Cry, pending resolution of the conflicting claims of ownership” (2007 NY Misc LEXIS 7111, *8 [Sur Ct, NY County 2007]). The surrogate noted “that on one hand [Mott] claim[ed] to have sold The Cry in 2004, while on the other hand he subsequently corresponded with the French government presenting himself as still having control over the statue” (id. at *3-4). She concluded that equitable relief was warranted in view of these “discrepancies in [Mott’s] assertions regarding his control over, and ownership of[ ] The Cry, coupled with his obvious willingness to ignore claims which he on his own determined to be invalid without first seeking judicial determination” (id. at *5).

By letter dated September 19, 2007, Mirvish’s attorney notified Surrogate’s Court that his client had filed suit in Supreme Court in June 2007 against Marlborough and Marlborough International for “among other things, conversion relating to the July 2004 sale of The Cry by Hanno Mott, on behalf of the Estate, to Marlborough International, and the subsequent transfer of The Cry to Switzerland in 2006.” He informed the surrogate that this lawsuit had been settled almost immediately, on August 23, 2007, and “[p]ursuant to the settlement, the July 2004 sale was rescinded and The Cry . . . returned to New York [where it was] being held in escrow pending [her] determination of the ownership issue.”

Mott, as executor of Yulia’s estate, joined the settlement agreement, thereby agreeing to be bound by paragraphs 4 and 6 through 16 inclusive (with one exception not relevant here). Notably, paragraph 4.b of the agreement states that the escrow agent shall hold “The Cry” and a disclaimer of interest in the sculpture executed by Marlborough and Marlborough International “until such time as it receives (i) joint instruction from Mirvish and Hanno Mott . . . , or (ii) a final non-appealable judgment of a New York State Court determining ownership of the Sculpture, whereupon the Sculpture and disclaimer of interest shall be delivered pursuant to such joint instruction or judgment” (emphasis added). Paragraph 7 describes the Surrogate’s Court proceeding as “litigation over title” to “The Cry.”

Subsequent to the settlement, the parties skirmished by letter and motion practice over the release of the $1 million held in escrow. At a court conference on September 4, 2008 and by letter dated the same day, though, Mirvish’s attorney confirmed to the surrogate that his client had “withdrawn his claims for conversion and replevin in order to simplify the issues before the Court,” and, as a result, was “also withdrawing his objection to Mr. Mott’s motion to vacate the temporary restraining order requiring [him] to keep $1 million in escrow and restraining him from selling The Cry.” By September 2008, of course, “The Cry” had been returned from Switzerland to New York and was in the custody of the agreed-upon escrow agent. By order dated October 3, 2008, Surrogate’s Court vacated its prior order directing Mott to escrow $1 million, pursuant to the parties’ stipulation consenting to the release of these monies.

At the time the settlement agreement was reached in August 2007, Mott’s motion and Mirvish’s cross motion for summary judgment in this action, filed the previous June and July, respectively, were pending. Mott argued in his motion that Mirvish’s claim was untimely, and he could not prove all elements of a gift. Mirvish countered Mott’s motion and contended in his cross motion that Yulia made a valid gift of “The Cry” to Fury; Mott’s refusal to turn over “The Cry” and the estate’s sale of the sculpture in 2004 were acts of conversion; and Mirvish, as Fury’s assignee, was the true owner of “The Cry.” By order dated December 30, 2008, Surrogate’s Court granted Mirvish’s cross motion and denied Mott’s motion for summary judgment. The surrogate concluded that Yulia had made a valid inter vivos gift of “The Cry” to Fury. She observed that the wording of the deed of gift was “in the past tense, Le., T gave this sculpture “The Cry” to my good friend Biond Fury,’ ” which was not only “indicative of an antecedent transfer,” but also “clearly identified] the intended object and [was] consistent with [Yulia’s] long pattern of making gifts of similar items to her companion.” Mott appealed.

The Appellate Division reversed the surrogate’s decree; granted Mott’s motion for summary judgment to the extent of declaring Mirvish’s claims of ownership of “The Cry” and his claims for damages barred by the statute of limitations; and denied Mirvish’s cross motion (75 AD3d 269 [1st Dept 2010]). The court observed that constructive delivery of a “monumental work of art such as The Cry” would be “appropriate”; however “Fury’s testimony [was] the only evidence of the decedent’s delivery of the gift instrument to him,” and his testimony was “inadmissible under CPLR 4519 [the Dead Man’s Statute] because Fury [was] the person from whom [Mirvish] derive [d] his interest” (id. at 272). As a result, the Appellate Division concluded that it was error for the surrogate to grant Mirvish’s cross motion for summary judgment (id.). The court then granted Mott’s motion for summary judgment “to the extent of declaring that [Mirvish’s] claim of ownership of The Cry and his claims for damages [were] barred by the statute of limitations” because “The Cry” was converted no later than 1998 when loaned to the French government (id. at 276). We granted Mirvish leave to appeal, and now reverse (16 NY3d 705 [2011]).

The principles of law that control the outcome of this appeal are a good deal less complicated than the history of the dispute, as is the application of those principles to the facts. In Gruen v Gruen (68 NY2d 48 [1986]), we held that

“[f]irst, to make a valid inter vivos gift there must exist the intent on the part of the donor to make a present transfer; delivery of the gift, either actual or constructive to the donee; and acceptance by the donee. Second, the proponent of a gift has the burden of proving each of these elements by clear and convincing evidence” (id. at 53 [citations omitted]).

Belatedly, mere possession of a gift after the donor’s death creates a presumption of delivery to the donee during the donor’s lifetime. In Sofsky v Rosenberg (76 NY2d 927 [1990]), for example, we affirmed summary judgment in favor of the defendant grantee because his “possession of the deed create [d] a presumption that the deceased grantor had delivered the deed to him before her death” (id. at 930). The plaintiff, the grantor’s spouse, speculated that the deed was placed, at some unspecified time, in either an office safety box or a safety-deposit box at a bank, and that the defendant grantee had clandestinely and fraudulently removed the deed from one of those locations either while the grantor was seriously ill, or after she died. We concluded that these “unsupported, conclusory allegations that the deed had not been delivered” were insufficient to overcome the presumption and raise a triable issue of fact (id. at 930).

Here, Yulia’s intent to make a present transfer of “The Cry” was clear on the face of the gift instrument, as the surrogate concluded. There is no suggestion Yulia was coerced; there is no question about her capacity. Nor is there any dispute that Fury accepted the gift. Moreover, the Dead Man’s Statute creates no impediment to reliance on the presumption of delivery created by Fury’s possession of the gift instrument, which was specifically addressed to him, after Yulia’s death. Put another way, Mott has not raised a triable issue of fact so as to overcome the presumption of delivery; Mirvish has established each of the elements of a valid inter vivos gift—intent, delivery and acceptance—by clear and convincing evidence. Both Mott, as executor of Yulia’s estate, and Mirvish filed petitions asking the surrogate to resolve the conflicting claims of ownership of “The Cry,” and she correctly ruled in Mirvish’s favor.

Further, even assuming that the statute of limitations for Mirvish’s conversion and replevin claims has lapsed, the estate cannot as a result secure possession of or title to the sculpture. Mott, on behalf of the estate, acknowledged and agreed in the settlement agreement that Surrogate’s Court would decide the ownership of “The Cry” on the merits-, indeed, this is the relief he sought in his petition pursuant to SCPA 209 (4), where he asked the surrogate to determine that the estate “was the rightful owner of, and . . . legitimately sold and passed title of the Cry.” And under the settlement agreement, the estate cannot secure possession of “The Cry” without a final judicial determination of ownership in its favor. But here, the surrogate rightly concluded that Yulia made a valid inter vivos gift of “The Cry” to Fury, who sold his interest in the sculpture to Mirvish. So if the escrow agent cannot deliver “The Cry” to Mirvish because of the expiration of the statute of limitations, even though Mirvish has been adjudicated the sculpture’s true owner, “The Cry” would be condemned to languish in escrow in perpetuity. This is surely not what the parties intended when they entered into the settlement agreement, which called for the return of “The Cry” from Switzerland to New York, to be held in escrow awaiting delivery to the party—either the estate or Mirvish— finally adjudicated the sculpture’s owner.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the order of Surrogate’s Court reinstated.

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

Order reversed, etc.

      . Marlborough’s records show that “The Cry” was “picked up” from the Lipchitz studio in Hastings-on-Hudson on July 9, 1997 for transport to the Marlborough warehouse. Fury, on the other hand, testified that, to the best of his recollection, in the late 1990s “The Cry” was moved from the Lipchitz studio to the Michael Leonard warehouse in New York, which is where he believed it to be located at the time Yulia made the gift of it to him; and that sometime later Hanno Mott, Yulia’s son from her first marriage, arranged for “The Cry” to be transported elsewhere. Although Fury did not know for sure, he “assume[d]” that “The Cry” was delivered to the Marlborough warehouse after it was removed from the Michael Leonard warehouse at Mott’s direction.

      . The record is not clear as to whether “The Cry” was entrusted to Marlborough for sale as well as storage. Mott testified that in March 2004, when he first became aware of Fury’s claim of ownership, “The Cry” “had been on consignment and was continuing on consignment” with Marlborough although “there was no written consignment agreement,” simply “a receipt that the work was received on consignment.” For his part, Levai first declared that “[t]o the best of [his] knowledge,” Mott in 1997 asked him “to keep [‘The Cry’] for him, to keep it with some other sculptures in order to help him in storage”; and that he “really [didn’t] remember” if “The Cry” was consigned to Marlborough. He later testified that “to the best of [his] knowledge,” there was no consignment agreement for “The Cry”; that Marlborough customarily memorialized consignments in a writing; that “The Cry” was not, in fact, consigned to Marlborough; and that Marlborough was never “asked to attempt to sell” the sculpture apart from the discussions with the French government.

      . Ownership of “The Cry” was not the only bone of contention between Mott and Fury. The petition, among other things, also asked the surrogate to determine that the estate was the rightful owner of two other works of art that Fury claimed Yulia gave him as gifts. One of these was alleged to have subsequently been sold to Mirvish’s art gallery, which was therefore named as a respondent.

      . SCPA 2102 authorizes a proceeding in Surrogate’s Court to require a fiduciary “[t]o supply information concerning the assets or affairs of an estate relevant to the interest of the petitioner when the fiduciary has failed after request made upon him in writing therefor” (SCPA 2102 [1]).

      . Indeed, the obligations of Mirvish, Marlborough and Marlborough International under the settlement agreement were contingent upon Mott’s execution of the joinder by August 31, 2007.

      . In light of our disposition of this appeal, we need not and do not express any opinion as to whether Mirvish’s conversion and replevin claims accrued no later than 1998, as Mott contends and the Appellate Division agreed, or in 2004, as Mirvish urges.


author: Smith, J.

text:
    [964 NE2d 402, 941 NYS2d 31]
    Michael Dahar, Appellant, v Holland Ladder & Manufacturing Company et al., Defendants, Bechtel National, Inc., et al., Respondents. Bechtel Corporation et al., Third-Party Plaintiffs, v West Metal Works, Inc., Third-Party Defendant.
    Argued January 10, 2012;
    decided February 21, 2012

      POINTS OF COUNSEL

      Lipsitz Green Scime Cambria LLP, Buffalo (John A. Collins of counsel), for appellant.
    Plaintiffs injuries were proximately caused by the Martins’ and Bechtel’s violation of Labor Law § 240 (1). (Caddy v Interborough R.T. Co., 195 NY 415; Lewis-Moors v Contel of N.Y., 78 NY2d 942; Gordon v Eastern Ry. Supply, 181 AD2d 990, 82 NY2d 555; Sinzieri v Expositions, Inc., 270 AD2d 332; Loesch v Long Is. R.R. Co., 165 App Div 753; Broggy v Rockefeller Group, Inc., 8 NY3d 675; Swiderska v New York Univ., 10 NY3d 792; Haimes v New York Tel. Co., 46 NY2d 132; Cannon v Putnam, 76 NY2d 644; Wicks v Trigen-Syracuse Energy Corp., 64 AD3d 75.)

      Landman Corsi Ballaine & Ford P.C., New York City (William G. Ballaine, James M. Woolsey, III, and William Miller of counsel), for Bechtel National, Inc., respondent.
    I. Bechtel National, Inc. is not an “owner” subject to strict liability under Labor Law § 240 (1). (Scaparo v Village of Ilion, 13 NY3d 864; Sanatass v Consolidated Inv. Co., Inc., 10 NY3d 333; Abbatiello v Lancaster Studio Assoc., 3 NY3d 46; Celestine v City of New York, 86 AD2d 592, 59 NY2d 938; Ferluckaj v Goldman Sachs & Co., 12 NY3d 316; Lombardi v Stout, 80 NY2d 290; Gordon v Eastern Ry. Supply, 181 AD2d 990, 82 NY2d 555; Greenough v Niagara Mohawk Power Corp., 13 AD3d 1160; DeFreece v Penny Bag, 137 AD2d 744; Copertino v Ward, 100 AD2d 565.) II. Bechtel National, Inc. is not a “contractor” subject to strict liability under Labor Law § 240 (1). (Russin v Louis N. Picciano & Son, 54 NY2d 311; Walls v Turner Constr. Co., 4 NY3d 861; Kilmetis v Creative Pool & Spa, Inc., 74 AD3d 1289; Rauls v DirecTV, Inc., 60 AD3d 1337; Feltt v Owens, 247 AD2d 689; Bjelicic v Lynned Realty Corp., 152 AD2d 151; Johnson v Ebidenergy, Inc., 60 AD3d 1419.) III. Plaintiff was not engaged in an activity protected by Labor Law § 240 (1). (Broggy v Rockefeller Group,

      Inc., 8 NY3d 675; Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280; Martinez v City of New York, 93 NY2d 322; Connors v Boorstein, 4 NY2d 172; Brown v Christopher St. Owners Corp., 87 NY2d 938; B & F Bldg. Corp. v Liebig, 76 NY2d 689; Huston v Dobson, 138 App Div 810; Maleeny v Standard Shipbuilding Corp., 237 NY 250; Stuart v Costello, 204 App Div 574; Komar v Dun & Bradstreet Co., Inc., 284 App Div 538.)

      Hodgson Russ LLP, Buffalo (Julia M. Hilliker of counsel), for Warner G. Martin and another, respondents.
    I. Plaintiffs work is part of the normal manufacturing process and is not the type of cleaning work protected by Labor Law § 240 (1). (Foster v Joseph Co., 216 AD2d 944; Solly v Tam Ceramics, 258 AD2d 914; Jock v Fien, 176 AD2d 6, 80 NY2d 965; Davis v Wind-Sun Constr., Inc., 70 AD3d 1383; People v Cross & Brown Co., 232 App Div 587; Broggy v Rockefeller Group, Inc., 8 NY3d 675; Wicks v Trigen-Syracuse Energy Corp., 64 AD3d 75; Hutchins v Finch, Pruyn & Co., 267 AD2d 809; Sinzieri v Expositions, Inc., 270 AD2d 332; Gordon v Eastern Ry. Supply, 181 AD2d 990.)
   OPINION OF THE COURT

Smith, J.

Plaintiff was injured when he fell from a ladder in a factory while cleaning a product manufactured by his employer. We hold that his activity was not protected by Labor Law § 240 (1).

I

The product in question was a steel “wall module” made by third-party defendant West Metal Works, Inc. at its plant in Cheektowaga, New York. The module was at least seven feet high: West’s customer, defendant Bechtel National, Inc., was purchasing it for installation in a nuclear waste treatment plant in Richland, Washington. At the Richland plant, the module was to be attached to a building wall, where it would provide support for pipes.

After the module was fabricated, it had to be cleaned before it was shipped to Washington. Plaintiff, a West employee, was engaged in that task, standing on a ladder provided by West, when, according to plaintiff, the ladder broke and he fell to the ground.

Plaintiff sued several defendants on a number of theories. Now before us is his claim under Labor Law § 240 (1) against Bechtel, the purchaser of the wall module, and defendants Warner Martin and Shirley Martin, West’s landlords. Supreme Court granted summary judgment dismissing this claim, and the Appellate Division affirmed, with two Justices dissenting (Dakar v Holland Ladder & Mfg. Co., 79 AD3d 1631 [4th Dept 2010]). Plaintiff appeals as of right, pursuant to CPLR 5601 (a), and we now affirm.

II

Labor Law § 240 (1) says, in relevant part:

“All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.” (Emphasis added.)

Plaintiff claims that he was engaged in “cleaning” the wall module, which was a “structure”; that the ladder given him failed to provide “proper protection”; and that Bechtel and the Martins are subject to the liability imposed on “contractors and owners” because, according to plaintiff, Bechtel was both a contractor and an owner of the wall module, while the Martins were the owners of the factory in which the accident happened. Bechtel and the Martins assert that they were not “contractors” or “owners,” but we do not reach that issue because we hold that plaintiff was not engaged in an activity the statute protects.

Labor Law § 240 (1), one of the most frequent sources of litigation in the New York courts, provides rights to certain workers going well beyond the common law. As we have long held, it imposes liability even on contractors and owners who had nothing to do with the plaintiffs accident; and where a violation of the statute has caused injury, any fault by the plaintiff contributing to that injury is irrelevant (see Blake v Neighborhood Hous. Seros. of N.Y. City, 1 NY3d 280, 287 [2003]; Haimes v New York Tel. Co., 46 NY2d 132, 136 [1978]; Bland v Manocherian, 66 NY2d 452, 461 [1985]). The Legislature, however, afforded this protection only to workers “employed” in the “erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure” (see Joblon v Solow, 91 NY2d 457 [1998]; Munoz v DJZ Realty, LLC, 5 NY3d 747 [2005]).

Plaintiffs argument that he is within the statute’s coverage is a simple one. He says that he was obviously “cleaning,” and that the wall module was a “structure” under the broad definition we have given to the term: “any production or piece of work artificially built up or composed of parts joined together in some definite manner” (Caddy v Interborough R.T. Co., 195 NY 415, 420 [1909]; see also Lewis-Moors v Contel of N.Y., 78 NY2d 942, 943 [1991]; Joblon, 91 NY2d at 464). The argument is too simple, and would lead to an expansion of section 240 (1) liability that our cases do not support and that we are convinced the Legislature never intended.

It is apparent from the text of Labor Law § 240 (1), and its history confirms, that its central concern is the dangers that beset workers in the construction industry. The first version of the statute was enacted in 1885, in response “to widespread accounts of deaths and injuries in the construction trades” (Blake, 1 NY3d at 285). More recent legislative history explains that the purpose of the statute is to place “ultimate responsibility for safety practices at building construction jobs where such responsibility . . . belongs” (Mem of Senator Calandra and Assemblyman Amann, 1969 NY Legis Ann, at 407). The statute today is found in article 10 of the Labor Law, entitled “Building Construction, Demolition and Repair Work.”

It is true that we have rejected the idea that Labor Law § 240 (1) applies only to work performed on construction sites (Joblon, 91 NY2d at 464). More specifically, in interpreting the term “cleaning,” we have held that it is not limited to cleaning that was “part of a construction, demolition, or repair project” (Broggy v Rockefeller Group, Inc., 8 NY3d 675, 680 [2007]). We have never, however, gone as far as plaintiff here asks us to go—to extend the statute to reach a factory employee engaged in cleaning a manufactured product.

On the contrary, it seems that every case we have decided involving “cleaning” as used in Labor Law § 240 (1), with a single exception, has involved cleaning the windows of a building (Ferluckaj v Goldman Sachs & Co., 12 NY3d 316 [2009]; Swiderska v New York Univ., 10 NY3d 792 [2008]; Broggy v Rockefeller Group, Inc., 8 NY3d 675 [2007]; Bauer v Female Academy of Sacred Heart, 97 NY2d 445 [2002]; Brown v Christopher St. Owners Corp., 87 NY2d 938 [1996]; Connors v Boorstein, 4 NY2d 172 [1958]; Koenig v Patrick Constr. Corp., 298 NY 313 [1948]). The exception, Gordon v Eastern Ry. Supply (82 NY2d 555 [1993]), involved the cleaning of a railroad car. And even in window-cleaning cases, we have not extended the statute’s coverage to every activity that might fit within its literal terms. We held in Connors and Brown, and reaffirmed in Broggy, that routine household window washing is not covered.

Though the volume of section 240 (1) litigation is vast, we have found not a single case, in our Court or in the Appellate Division, in which a worker recovered under Labor Law § 240 (1) for an injury suffered while cleaning a product in the course of a manufacturing process. Such injuries can hardly be uncommon; we infer that it has been generally—and correctly— understood that the statute does not apply to them.

Indeed, the logic of plaintiffs argument here would expand the protections of Labor Law § 240 (1) even beyond manufacturing activities; the statute would encompass virtually every “cleaning” of any “structure” in the broadest sense of that term. Every bookstore employee who climbs a ladder to dust off a bookshelf; every maintenance worker who climbs to a height to clean a light fixture—these and many others would become potential Labor Law § 240 (1) plaintiffs. We decline to extend the statute so far beyond the purposes it was designed to serve.

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

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

Order affirmed, with costs.


text:
    [965 NE2d 228, 942 NYS2d 1]
    Mario A. Pesa et al., Respondents, v Yoma Development Group, Inc., Appellant, et al., Defendants.
    Argued January 3, 2012;
    decided February 9, 2012

      POINTS OF COUNSEL

      Naidich Wurman Birnbaum & Maday, LLP, Great Neck (Robert P Johnson of counsel), for appellant.
    I. The transfers at issue did not constitute an anticipatory repudiation. (Vafa v Cramer, 212 AD2d 593; Hendel v Scheuer, 150 AD2d 431; Levine v Trattner, 130 AD2d 462; Coney Is. Exhaust v Mobil Oil Corp., 304 AD2d 706; D'Abreau v Smith, 240 AD2d 616; Rachmani Corp. v 9 E. 96th St. Apt. Corp., 211 AD2d 262; iWon, Inc. v Ourhouse, Inc., 192 Misc 2d 1; Forward Publ., Inc. v International Pictures, Inc., 277 App Div 846; Jacobs Private Equity, LLC v 450 Park LLC, 22 AD3d 347; DeLorenzo v Bac Agency, 256 AD2d 906.) II. Respondents are not entitled to summary judgment as they never demonstrated that they were ready, willing and able to close. (Madison Invs. v Cohoes Assoc., 176 AD2d 1021; Scull v Sicoli, 247 AD2d 852; Gentile v Sang Y. Kim, 101 AD2d 939; Rhodes v Astro-Pac, Inc., 51 AD2d 656; Huntington Min. Holdings v Cottontail Plaza, 60 NY2d 997; Jewell v Rowe, 119 AD2d 634; Ufitec, S. A. v Trade Bank & Trust Co., 21 AD2d 187; Inter-Power of N.Y. v Niagara Mohawk Power Corp., 259 AD2d 932; Ross Bicycles v Citibank, 200 AD2d 379; Cohn v Mezzacappa Bros., 155 AD2d 506.)

      Thomas J. Stock & Associates, Mineola (Thomas J. Stock and Victor A. Carr of counsel), for respondents.
    I. Appellant’s recitation of certain facts, critical to a determination of this appeal, is either inaccurate or based on the hearsay statements of counsel with no personal knowledge of the facts. II. It was appellant’s “intention,” manifested by its own acts and words, to commit an anticipatory breach. III. Any failure to obtain a mortgage commitment only gave appellant the right to cancel the contracts, not the right to breach the contracts by transferring the properties prior to giving written notice. IV The evidence in the record establishes that respondents were “ready, willing and able to perform” and that factual issue is not subject to review by this Court. V Assuming that the legal issue of whether an anticipatory breach eliminates the necessity to show that plaintiff was ready, willing and able to perform is subject to review, the decision of the Second Department was correct. (Madison Invs. v Cohoes Assoc., 176 AD2d 1021; Scull v Sicoli, 247 AD2d 852; Ehrenpreis v Klein, 260 AD2d 532.)
   OPINION OF THE COURT

Smith, J.

We hold that, in a case alleging that a seller has repudiated a contract to sell real property, the buyers must prove they were ready, willing and able to close the transaction.

I

Defendant Yoma Development Group, Inc. (the seller) agreed in three separate contracts to sell three properties, on each of which the seller planned to build a three-family dwelling. One of the properties was to be sold to all four of the plaintiffs (the buyers), another to three of them, and a third to plaintiff Mario Pesa only. Each contract specified a purchase price of $430,000 and a $15,000 down payment, to be held in escrow pending the closing. It was a condition to the closing that the seller deliver certificates of occupancy for the dwellings it planned to build, or obtain “appropriate sign-offs” to show that certificates of occupancy would be forthcoming. Each contract also had a mortgage contingency clause, saying that if the buyer did not obtain a mortgage commitment within 60 days from the date of the contract, either the buyer or the seller “may cancel this contract by giving Notice to other party.”

The contracts were signed on March 12, 2003, and specified a closing date of July 1, 2003. It seems from the record, however, that essentially nothing happened for more than three years after the contract was executed. The dwellings were not built and the mortgage commitments were not obtained. The seller now takes the position that, once 60 days had passed, it was free to terminate the contracts at any time under the mortgage contingency clause, but it does not claim to have exercised that right until four years later. The buyers say that the seller had no right to terminate, because the seller’s failure to build houses on the properties, and to obtain certificates of occupancy or appropriate sign-offs, made getting mortgage commitments impossible.

On July 10, 2006, the seller transferred the properties to an affiliated corporation, defendant Southpoint, Inc. According to the buyers, this transfer amounted to a repudiation of the seller’s obligations under the contracts.

It is not clear from the record when the buyers found out about the Southpoint transfer, but in any event nearly another year of apparent inactivity followed. Then, on June 19, 2007, the seller’s lawyer sent three identical letters to the buyers’ lawyer, noting that the buyers had not obtained mortgage commitments, saying that the seller “is electing to cancel” the contracts, and returning the buyers’ down payments. The buyers immediately brought this lawsuit. They originally sued for specific performance and damages, but the specific performance claim has been dismissed and only the claim for damages is before us.

Both sides moved for summary judgment. The seller argued, among other things, that the buyers could not recover damages because they , had failed to show that they were ready, willing and able to close. Supreme Court granted summary judgment in favor of the buyers on the issue of liability, without discussing the “ready, willing and able” issue. It held that the seller had anticipatorily breached the contracts by transferring title to Southpoint. The Appellate Division affirmed. In the view of the Appellate Division, “a purchaser seeking damages for the seller’s anticipatory breach of a contract for the sale of real property is not required to establish, as an element of the claim, that it was ready, willing, and able to close,” though such a showing would be required if the buyers were seeking specific performance (Pesa v Yoma Dev. Group, Inc., 74 AD3d 769, 770 [2d Dept 2010] [citations omitted]).

After the parties stipulated to the amount of damages, a final judgment was entered in Supreme Court. We granted the seller leave to appeal from that judgment, bringing up for review the earlier, non-final Appellate Division order. We now modify and deny both sides’ motions for summary judgment.

II

The main issue before us is whether a buyer in a damages suit like this one must show that it was ready, willing and able to close the transaction—i.e., that but for the seller’s repudiation, the transaction could and would have closed. This issue has divided the Appellate Division departments. The Second Department has held, in a number of other cases as well as in this one, that no such showing is required (e.g. Ehrenpreis v Klein, 260 AD2d 532, 533 [2d Dept 1999]; Karo v Paine, 55 AD3d 679, 680 [2d Dept 2008]). The Third and Fourth Departments, however, have required a “ready, willing and able” showing (Madison Invs. v Cohoes Assoc., 176 AD2d 1021, 1022 [3d Dept 1991]; Scull v Sicoli, 247 AD2d 852, 853 [4th Dept 1998]).

The rule followed by the Third and Fourth Departments is the correct one. It is the rule stated by the leading treatises on contracts (4 Corbin on Contracts § 978, at 924 [1951]; 13 Lord, Williston on Contracts § 39:41 [4th ed]), and applied in several federal cases (Towers Charter & Mar. Corp. v Cadillac Ins. Co., 894 F2d 516, 523 [2d Cir 1990] [applying New York law]; United States v Hon, 17 F3d 21, 26 [2d Cir 1994]). Our agreement with that rule is implied by the language we used in Deforest Radio Tel. & Tel. Co. v Triangle Radio Supply Co. (243 NY 283 [1926]), where we held that, when a contract has been repudiated, the non-repudiating party need not actually tender performance. We said: “Where one party to a contract repudiates it and refuses to perform, the other party by reason of such repudiation is excused from further performance, or the ceremony of a futile tender. He must be ready, willing and able to perform, and this is all the law requires” (id. at 293 [emphasis added]; see also Bigler v Morgan, 77 NY 312, 318 [1879] [“The refusal of the defendant to perform . . . did not dispense with the necessity of showing that the plaintiff was able, ready and willing to perform”]).

The rule requiring non-repudiating buyers to show their readiness, willingness and ability to perform is supported by common sense. It is axiomatic that damages for breach of contract are not recoverable where they were not actually caused by the breach—i.e., where the transaction would have failed, and the damage would have been suffered, even if no breach occurred. The real question is one of burden of proof: Should the buyers be required to show they would and could have performed, or should the seller have the burden of showing they would not or could not? Since the buyers can more readily produce evidence of their own intentions and resources, it is reasonable to put the burden on them.

This allocation of the burden of proof is not inconsistent with our decision in American List Corp. v U.S. News & World Report (75 NY2d 38 [1989]). That case involved the repudiation by a magazine of a contract to rent mailing lists from a list supplier “over a 10-year period” (id. at 40). We held that “[t]he nonrepudiating party need not . . . prove its ability to perform the contract in the future” (id. at 44). In context, this meant that the plaintiff would not be forced to meet the perhaps impossible burden of showing what its financial condition would have been for many years to come. No comparable burden falls on the non-repudiating party in a case like this one. These buyers need only show that they would and could have closed the transaction if the seller had proceeded to a closing as the contract required.

Here, the buyers did submit evidence of their financial condition, but that evidence was not conclusive on the issue of their ability to make the purchases. Whether the buyers were ready, willing and able to close therefore presented an issue of fact, and the buyers’ motion for summary judgment should have been denied.

III

We also hold that the courts below erred in deciding as a matter of law that the seller repudiated the contracts by transferring the properties in question to Southpoint.

It is not disputed that the seller and Southpoint were corporations controlled by the same principals. The transfer of the properties from one entity to another did not, of itself, make it impossible for the seller to close the transaction, or prove that it was unwilling to do so. For all that appears in the record, the properties could have been transferred back to the seller or simply conveyed from Southpoint to the buyers directly. In general, a transfer between affiliates, which may be done for any number of innocent reasons, is not in itself a repudiation.

In this case, it is true, there is significant evidence to support a finding that the Southpoint transfer was inconsistent with performance of the contracts. The seller’s lawyer said in an affidavit submitted below that the transfer was made “in anticipation of the Purchasers [sic] inevitable lawsuit”—a statement hardly consistent with an intention by the seller to perform. There is, however, a later affidavit by the same affiant, which may be read as retracting, or attempting to explain away, his earlier statement. We conclude that the credibility of this explanation presents an issue of fact sufficient to defeat summary judgment.

IV

The courts below were clearly correct, however, in denying the seller’s cross motion for summary judgment. The record does not conclusively show that the buyers were not ready, willing and able to close the transaction; nor, as our discussion above makes clear, does it conclusively show that the Southpoint transfer was not a repudiation. And even assuming that the seller did not repudiate the transaction before it sent its cancellation notices, its right to cancel has not been conclusively demonstrated. The buyers’ claim that their failure to get mortgage commitments was a result of the seller’s non-performance of its obligations remains an open issue (see e.g. Arc Elec. Constr. Co. v Fuller Co., 24 NY2d 99, 104 [1969] [“ ‘(T)he defendant cannot rely on (a) condition precedent . . . where the non-performance of the condition was caused or consented to by itself’ ” (quoting O’Neil Supply Co. v Petroleum Heat & Power Co., 280 NY 50, 56 [1939])]).

Accordingly, the judgment appealed from and order of the Appellate Division brought up for review should be modified, without costs, by denying plaintiffs’ motion for summary judgment, and as so modified, affirmed.

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

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


author: Jones, J.

text:
    [965 NE2d 901, 942 NYS2d 399]
    The People of the State of New York, Respondent, v Saleem Khan, Appellant.
    Argued January 12, 2012;
    decided February 9, 2012

      POINTS OF COUNSEL

      Roger J. Bernstein, New York City, and Eugene A. Gaer for appellant.
    I. The health care fraud statute was not violated. (United, States v Gaudin, 515 US 506; Gaidon v Guardian Life Ins. Co. of Am., 94 NY2d 330.) II. There was no evidence to support the larceny conviction for the March 6, 2008 transaction. (People v Hart, 300 AD2d 987, 100 NY2d 550; People v Avino, 34 AJ)3d 1251.) III. The prosecution was not ready for trial within the time required by CPL 30.30. (People v Harris, 82 NY2d 409; People v McKenna, 76 NY2d 59; People v Van Deusen, 228 AD2d 987; People v Kendzia, 64 NY2d 331; People v Berkowitz, 50 NY2d 333; People v Afshar, 152 Misc 2d 615.) IV Failure to prove receipt of payment from Medicaid also requires that the convictions be vacated. (Sea Ins. Co. v Kopsky, 137 AD2d 804; Anzalone v State Farm Mut. Ins. Co., 92 AD2d 238; Secretary of Dept. ofHous. & Urban Dev. v Torres, 2 Misc 3d 53.)

      Cyrus R. Vance, Jr., District Attorney, New York City (Timothy C. Stone and Grace Vee of counsel), for respondent.
    I. Defendant’s guilt of fourth-degree health care fraud and third-degree grand larceny was proven beyond a reasonable doubt. (People v Danielson, 9 NY3d 342; People v Cabey, 85 NY2d 417; People v

      Contes, 60 NY2d 620; People v Castillo, 47 NY2d 270; People v Dordal, 55 NY2d 954; People v Hines, 97 NY2d 56; People v Malizia, 62 NY2d 755; People v Montanez, 41 NY2d 53; People v Iannone, 45 NY2d 589; People v Churchill, 47 NY2d 151.) II. Defendant was tried in a timely fashion. (People v Cortes, 80 NY2d 201; People v Stiles, 70 NY2d 765; People v Worley, 66 NY2d 523; People v Luperon, 85 NY2d 71; People v Moorhead, 61 NY2d 851; People v Harris, 82 NY2d 409; People v Campbell, 255 AD2d 229; People v Jones, 235 AD2d 297; People v Davis, 80 AD3d 494; People v Kopciowski, 68 NY2d 615.)
   OPINION OF THE COURT

Jones, J.

In defendant’s appeal arising from his convictions for health care fraud in the fourth degree and grand larceny in the third degree, the primary issue we address is the legal sufficiency of the evidence. This is the Court’s first opportunity to determine the nature of proof required for a conviction under the recently enacted health care fraud statute (Penal Law art 177 et seq.). We conclude that defendant’s convictions are supported by legally sufficient evidence. Additionally, we resolve defendant’s question regarding his statutory right to a speedy trial in the People’s favor.

From November 2007 through May 2008, the New York City Police Department (NYPD) and the New York City Human Resources Administration (HRA) conducted a joint undercover investigation of NYC Pharmacy, Inc., a pharmacy located in upper Manhattan, based on information that prescription drugs were being sold at that location without prescriptions. Specifically, an NYPD undercover police officer made seven visits to the pharmacy where he posed as a customer and received pills from defendant or another pharmacy employee. As a result of the investigation, defendant was arrested and charged with health care fraud in the fourth degree (Penal Law §§ 177.05, 177.10), grand larceny in the third degree (Penal Law § 155.35), criminal diversion of prescription medications in the second degree (Penal Law § 178.20), and four counts of criminal diversion of prescription medications in the fourth degree (Penal Law § 178.10), for allegedly defrauding the HRA and its Medicaid benefits program of more than $3,000 and unlawfully dispensing prescription medications on seven separate occasions.

At trial, it was established that the investigation was conducted in two phases. During the first phase, the undercover officer—named “Pedro Gomez” (a pseudonym authorized to be used after Supreme Court held a Stanard hearing [see People v Stanard, 42 NY2d 74 (1977)])—visited the pharmacy on three occasions—November 15, 2007; November 21, 2007 and February 1, 2008—and requested the prescription drugs Amitriptyline and Clonidine from defendant in varying amounts in exchange for cash, but without providing a prescription on any of the three occasions. Gomez testified that on November 15th and 21st he was given two types of pills in varying amounts: pink pills stamped “2105V” and orange pills stamped “129.” He further testified that on February 1st, he received a “small orange . . . bottle [of] pills.”

Gomez visited the pharmacy four times during the second phase of the investigation—February 28, 2008; March 6, 2008; April 2, 2008 and May 21, 2008. For each of these visits, he used a Medicaid benefits card manufactured for purposes of furthering the undercover operation in the name of a fictitious woman named Ivonne Arroyo. Gomez was also supplied with prescriptions for Arroyo which were purportedly signed by a doctor. The prescriptions were generated by the Medicaid Fraud unit for this investigation. During each visit, Gomez handed defendant the Medicaid card and prescription(s) and defendant checked the Medicaid database where he found Arroyo’s name; Gomez then asked to be given Amitriptyline and Clonidine, in varying amounts, instead of the drugs listed in the prescriptions; defendant gave Gomez pills that were not consistent with the prescriptions, but billed Medicaid in accordance with the prescriptions. A brief summary of Gomez’s testimony concerning the details of these four visits follows.

On February 28, 2008, Gomez visited the pharmacy and presented a prescription for 30 20-milligram tablets of Zyprexa for Arroyo. He told the defendant that Arroyo was his wife and stated that he did not want Zyprexa; instead, he asked for 40 pills each of Amitriptyline and Clonidine, saying to defendant, “Come on I need to make a little money”; in addition, he mentioned to another pharmacy employee that he wanted the pills so he “could make money.” Gomez told defendant he had his wife’s Medicaid card, and defendant asked Gomez to sign a book on the counter and the back of the prescription. Gomez signed Arroyo’s name and was handed 40 orange pills stamped “129.”

A week later, on March 6, 2008, Gomez returned to the pharmacy and handed defendant a prescription for Arroyo for 30 tablets of 600-milligram Sustiva. He told defendant he wanted “the usual pills,” and defendant handed Gomez a brown paper bag with an orange bottle labeled Sustiva 600-milligrams. The bottle contained 40 orange pills stamped “GG 461.”

Gomez made another visit to the pharmacy on April 2, 2008. On that day, he brought three prescriptions for Arroyo into the pharmacy for 30 tablets of Epzicom, 120 300-milligram tablets of Prezista and a 60-day supply of Advair. He then asked defendant for “40 of my pills.” He also asked defendant for some Percocet tablets, but defendant told him he could not dispense that drug because it was “not . . . registered [i]n the computer.” Gomez signed Arroyo’s name in the book on the counter and on the back of the prescriptions, and defendant handed him a bottle which contained 40 pink pills with “2105V” stamped on them.

Finally, on May 21, 2008, Gomez returned to the pharmacy with two prescriptions. Although he could not recall what drugs were prescribed at trial, he testified that he asked for the two usual drugs. Defendant told Gomez that the prescriptions were “not properly registered in the computer” and that “[the prescription] has to be in the computer by the doctor in order to be dispersed” otherwise he “could not bill Medicaid for those prescriptions.” Instead, defendant sold Gomez 60 pills for cash.

Gomez never identified himself or provided identification to defendant during any of the transactions. Further, although Gomez counted and vouchered the pills he received after each of the seven visits to NYC Pharmacy, none of them were ever subjected to laboratory analysis.

The prosecution also called an investigator from the New York Office of the Inspector General to testify about a document from Medicaid’s electronic database which showed that NYC Pharmacy, Inc. had billed Medicaid for five Arroyo prescriptions. According to the testimony, Medicaid approved and made payment to the pharmacy in the amount of $3,073.47; that is, for the February 28, 2008 prescription, the amount paid was $706.55 (Zyprexa); for the March 6, 2008 prescription, the amount paid was $519.04 (Sustiva 600-milligram tablets); and for three prescriptions on April 2, 2008, the amounts paid were $884.28 (Prezista), $812.89 (Epzicom) and $150.71 (Advair).

At the conclusion of the prosecution’s case and again at the close of all proof, defendant, pursuant to CPL 290.10, moved for a trial order of dismissal on the grounds that: the evidence adduced at trial was legally insufficient as to the charges of health care fraud and grand larceny; and the prosecution failed to prove the nature of the pills Gomez had received. Supreme Court reserved decision on the motions until after the jury verdict. After deliberations, the jury convicted defendant of grand larceny in the third degree and health care fraud in the fourth degree for his activities related to the February 28, March 6, and April 2, 2008 transactions. Defendant was also convicted of five counts of criminal diversion of prescription medications in the fourth degree.

Supreme Court, citing deficiencies in the proof, dismissed all five criminal diversion counts (24 Misc 3d 1231 [A], 2009 NY Slip Op 51685[U] [2009]). In addition, the court denied defendant’s motion for dismissal of the grand larceny and health care fraud counts, reasoning that “[t]he entire amount of this reimbursement was wrongfully and fraudulently obtained, since no medications were ever given to the . . . woman named in the five prescriptions” (2009 NY Slip Op 51685[U], *5).

On appeal, defendant argued that the trial evidence was legally insufficient to support his grand larceny and health care fraud convictions, and that his statutory right to a speedy trial was violated. The Appellate Division, by a 4-1 vote, disagreed with defendant and affirmed the judgment, holding there was legally sufficient evidence to support defendant’s health care fraud conviction on the theory that he knowingly and willfully defrauded Medicaid of more than $3,000 by misidentifying the recipient of the drugs he dispensed on February 28, March 6, and April 2, 2008 (82 AD3d 44 [2011]). Applying the legal sufficiency standard, the Appellate Division majority concluded that a rational jury could have found that defendant knew that Ivonne Arroyo was not the recipient of the medications. The majority further stated, “[t]he fact that none of the drugs were subjected to laboratory analysis is of no moment with respect to this count. The relevant inquiry is whether defendant provided false information for the purpose of receiving payment ... in excess of $3,000, not the identity of the drugs that were dispensed” (id. at 54-55).

The majority also concluded that the evidence was legally sufficient to establish defendant’s guilt of grand larceny in the third degree. The court found that defendant wrongfully obtained $3,073.47 from New York State “by misleading Medicaid as to the actual recipient of whatever drugs were dispensed” during the three transactions from February 28 to April 2, 2008 (id. at 55). In addition, the majority rejected defendant’s speedy trial claim, finding that the delay during the applicable period was properly excluded from the speedy trial calculation since it was attributable to motion practice.

The dissent argued there was insufficient proof that defendant knowingly and willfully misidentified the drugs dispensed on March 6, 2008 or the recipient of the drugs (for any of the transactions). Thus, according to the dissent, defendant’s grand larceny conviction should be vacated and the health care fraud conviction reduced from fourth degree to fifth degree because, without the $519.04 billing for the March 2008 transaction, the total amount unlawfully obtained from Medicaid would fall below the “exceeds $3,000” threshold for both third-degree grand larceny and fourth-degree health care fraud.

A Judge of this Court granted defendant leave to appeal (16 NY3d 860 [2011]), and we now affirm.

In a legal sufficiency inquiry, this Court’s role is limited to determining whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” (Jackson v Virginia, 443 US 307, 319 [1979]; see also People v Contes, 60 NY2d 620, 621 [1983]). Where the evidence adduced at trial establishes “ ‘any valid line of reasoning and permissible inferences [that] could lead a rational person’ to convict, then the conviction survives a sufficiency review” (People v Santi, 3 NY3d 234, 246 [2004], quoting People v Williams, 84 NY2d 925, 926 [1994]). “A sufficiency inquiry requires a court to marshal competent facts most favorable to the People and determine whether, as a matter of law, a jury could logically conclude that the People sustained its burden of proof’ (People v Danielson, 9 NY3d 342, 349 [2007]).

To establish health care fraud in the fourth degree, the People must prove that the defendant,

“with intent to defraud a health care plan . . . knowingly and willfully provide [d] materially false information . . . for the purpose of requesting payment from a health plan for a health care item or service and, as a result of such information . . . , [the defendant] or another person receive [d] payment in an amount [to which the defendant or another was] not entitled,” and “the payment wrongfully received . . . from a single health plan, in a period of not more than one year exceed[ed] [$3,000] in the aggregate” (Penal Law §§ 177.05, 177.10).

Further, grand larceny in the third degree is made out when the People prove that the defendant stole property and that the value of the property exceeds $3,000 (see Penal Law § 155.35).

Here, it is clear that the People presented sufficient evidence for a jury to rationally conclude that the pink and orange pills dispensed to Gomez were different from the drugs listed on the prescriptions presented to defendant on February 28, 2008 and April 2, 2008, and that defendant knowingly and willfully provided materially false information to Medicaid (as to at least the dispensed medications) on those dates. However, defendant, in an attempt to reduce his health care fraud and grand larceny convictions, argues that there is no legally sufficient proof to conclude that on March 6, 2008, he dispensed something other than Sustiva, the medication actually prescribed, or that he dispensed it knowing that Arroyo was not going to be the recipient of the medication. Defendant essentially contends that because the People failed to prove the “knowingly and willfully providing materially false information” element as to the March 2008 transaction, not only must the fourth-degree health care fraud conviction be reduced, but the third-degree grand larceny must be reversed or reduced because the “exceeds $3,000” threshold is not met. We disagree.

As stated, on March 6, 2008, Gomez came into the pharmacy with a prescription for 30 600-milligram tablets of Sustiva, a relatively expensive medication. He asked for “the usual pills” and defendant handed him 40 orange pills stamped “GG 461.” Viewing the evidence—i.e., Gomez’s request for medicine other than Sustiva; the discrepancy between the number of pills in the prescription and the number of pills defendant actually gave Gomez; and the whole course of dealing, in which defendant consistently gave Gomez what Gomez asked for, rather than what was prescribed—in the light most favorable to the People, a jury could reasonably infer that the pills were not Sustiva and that Ivonne Arroyo would not be the recipient of the medication, and therefore that defendant knowingly and willfully provided materially false information to Medicaid.

Defendant’s speedy trial argument is also unavailing. During much of the time defendant complains about, motion practice, which is an excuse for not being ready, was going on. In any event, it appears that the most time the People can be charged with is 129 days, well short of six months (see GPL 30.30 [1] [a]).

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

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

Order affirmed.

       In 2006, legislation was enacted to amend the Public Health Law for the purpose of establishing the Office of the Medicaid Inspector General within the Department of Health and providing for its powers and duties (L 2006, ch 442). The overarching goal of the legislation was to improve fraud control and expenditure accountability within the Medicaid program (id.). As part of that legislation, Penal Law article 177 was enacted to create five health care fraud offenses (id. at § 9 [eff Nov. 1, 2006]). These crimes are meant to “get at the specific conduct by health care providers who defraud the system; make it easier to aggregate claims for fraud against a single health plan; and send a clear message to health care providers that the state remains vigilant and will punish fraud against the health care system” (Donnino, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law § 177.00, at 481-482).