author: Smith, J.

text:
    [960 NE2d 424, 936 NYS2d 655]
    Joseph Perl et al., Appellants, v Mehmood Meher et al., Respondents. David Adler et al., Appellants, v Pincus Bayer et al., Respondents. Sheila Travis, Appellant, et al., Plaintiffs, v Nassirou M. Batchi et al., Respondents.
    Argued October 19, 2011;
    decided November 22, 2011

      POINTS OF COUNSEL

      Law Offices of Annette G. Hasapidis, South Salem (Annette G. Hasapidis of counsel), and Schwartz, Goldstone & Campisi, LLP, New York City, for Joseph Perl and another, appellants in the first above-entitled action.
    I. Defendants did not make out a prima facie case because Dr. Farkas conceded, on the one hand, that objective test results proved that plaintiff sustained a serious injury but then subjectively opined, on the other hand, that plaintiff was “exaggerating” his symptoms. (Toure v Avis Rent A Car Sys., 98 NY2d 345; Washington v Delossantos, 44 AD3d 748; Nitti v Clerrico, 98 NY2d 345; Iannello v Vazquez, 78 AD3d 1121; Vargas v Tomorrow Travel & Tour, Inc., 74 AD3d 1626; Hartman-Jweid v Overbaugh, 70 AD3d 1399; Torres v Garcia, 59 AD3d 705; Busljeta v Plandome Leasing, Inc., 57 AD3d 469; Santos v Taveras, 55 AD3d 405; Gonzales v Fiallo, 47 AD3d 760; Thomas v Smith, 25 AD3d 786.) II. Defendants did not make out a prima facie case because defendants never provided their examining physicians with any of plaintiffs medical records. (Abbadessa v Rogers, 40 AD3d 665; Toure v Avis Rent A Car Sys., 98 NY2d 345; Balanta v Stanlaine Taxi Corp., 307 AD2d 1017; Lewis v Ulloa-Gonzalez, 20 Misc 3d 1104[A], 2008 NY Slip Op 51222[U].) III. Because defendants failed to meet their burden, their motion should have been denied “regardless of the sufficiency of the opposing papers.” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851; Quinn v Nyack Hosp., 286 AD2d 675; Cugini v System Lbr. Co., 111 AD2d 114.) IV Additionally or alternatively, plaintiffs raised a question of fact by presenting Dr. Bleicher’s qualitative assessment that plaintiff sustained a serious injury. (Pajda v Pedone, 303 AD2d 729; Leeber v Ward, 55 AD3d 563; Toure v Avis Rent A Car Sys., 98 NY2d 345; Dufel v Green, 84 NY2d 795; Licari v Elliott, 57 NY2d 230; Lopez v Senatore, 65 NY2d 1017; Gaddy v Eyler, 79 NY2d 955; Scheer v Koubek, 70 NY2d 678; Pierson v Edwards, 77 AD3d 642; Lopez v Abdul-Wahab, 67 AD3d 598.)

      Law Offices of Annette G. Hasapidis, South Salem (Annette G. Hasapidis of counsel), and Schwartz, Goldstone & Campisi, LLP, New York City (Joseph Campisi of counsel), for David Adler and another, appellants in the second above-entitled action.
    I. The lower court erred in ruling that a treating physician’s findings from an examination, performed contemporaneously with an accident, must both identify the objective tests and quantify the plaintiffs limitations in order to prove a serious injury. (Toure v Avis Rent A Car Sys., 98 NY2d 345; Ferraro v Ridge Car Serv., 49 AD3d 498; D’Onofrio v Floton, Inc., 45 AD3d 525; Morales v Daves, 43 AD3d 1118; Rodriguez v Cesar, 40 AD3d 731; Borgella v D & L Taxi Corp., 38 AD3d 701; Pierson v Edwards, 77 AD3d 642; Lopez v Abdul-Wahab, 67 AD3d 598.) II. Defendants failed to demonstrate that no valid line of reasoning could have led the jury to return a verdict for plaintiffs. (Cohen v Hallmark Cards, 45 NY2d 493; Jones v Fraser, 265 AD2d 773; Risbrook v Coronamos Cab Corp., 244 AD2d 397; Brown v Achy, 9 AD3d 30; Cruz v Castaños, 10 AD3d 277; Garcia v ARC XVI of Fort Wash., 20 Misc 3d 1125 [A], 2008 NY Slip Op 51620[U]; Smith v Besanceney, 61 AD3d 1336; Perez v Rodriguez, 25 AD3d 506; Malloy v Matute, 79 AD3d 584.)

      Grant & Longworth, LLP, Bronx (Marie R. Hodukavich of counsel), for Sheila Travis, appellant in the third above-entitled action.
    I. The Appellate Division departed from this Court’s long established precedent in Toure v Avis Rent A Car Sys. (98 NY2d 345 [2002]) and applied the wrong standard of review when it limited its evaluation of plaintiffs limitations to range of motion measurements. (Linton v Nawaz, 62 AD3d 434, 14 NY3d 821; Glynn v Hopkins, 55 AD3d 498; Mirochnik v Ostrovskiy, 35 AD3d 413; lies v Jonat, 35 AD3d 537; Quinones v E & L Transp., Inc., 35 AD3d 577; Armstrong v Morris, 301 AD2d 931; Dufel v Green, 84 NY2d 795; Countermine v Galka, 189 AD2d 1043; Robillard v Robbins, 168 AD2d 803, 78 NY2d 1105; Madden v Dake, 30 AD3d 932.) II. The Appellate Division erred in reviewing plaintiff’s opposition to the motion before it examined defendants’ proof in support of their summary judgment motion. Because defendant failed to make a prima facie showing of entitlement to summary judgment, the burden never shifted to plaintiff and defendants’ motion should have been denied. (Linton v Nawaz, 62 AD3d 434, 14 NY3d 821; Glynn v Hopkins, 55 AD3d 498; Mirochnik v Ostrovskiy, 35 AD3d 413; lies v Jonat, 35 AD3d 537; Quinones v E & L Transp., Inc., 35 AD3d 577; Armstrong v Morris, 301 AD2d 931; Patterson v Rivera, 49 AD3d 337; Cassagnol v Williamsburg Plaza Taxi, 234 AD2d 208; Cosovic v Term Leasing, 234 AD2d 79; Rodriguez v Goldstein, 182 AD2d 396.) III. There is a triable issue of fact on the question of causation between the motor vehicle accident and plaintiffs injuries. (Pommells v Perez, 4 NY3d 566; Madden v Dake, 30 AD3d 932.)

      Baker, McEvoy, Morrissey & Moskovits, P.C., New York City
      (Marjorie E. Bornes and Stacy R. Seldin of counsel), for Mehmood Meher and others, respondents in the first and third above-entitled actions.
    I. The courts below properly held that defendants met their burden on the motion and established their prima facie entitlement to judgment. (Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955; Foley v Liloia, 82 AD3d 832; Washington v Delossantos, 44 AD3d 748; Sone v Qamar, 68 AD3d 566; Gonzales v Fiallo, 47 AD3d 760; Uddin v Cooper, 32 AD3d 270; Pommells v Perez, 4 NY3d 566; Kreimerman v Stunis, 74 AD3d 753; Thomas v Booker, 76 AD3d 456; Lopez v Abdul-Wahab, 67 AD3d 598.) II. Plaintiff did not proffer medical evidence sufficient to rebut defendants’ prima facie case that plaintiff did not sustain a “serious injury” within the meaning of section 5102 (d) of the Insurance Law of the State of New York. (Resek v Morreale, 74 AD3d 1043; Kuchero v Tabachnikov, 54 AD3d 729; Alicea v Troy Trans, Inc., 60 AD3d 521; Clemmer v Drah Cab Corp., 74 AD3d 660; DeJesus v Cruz, 73 AD3d 539; Jean v Kabaya, 63 AD3d 509; Danvers v New York City Tr. Auth., 57 AD3d 252; Sternberg v Sipzner, 74 AD3d 1054; Nieves v Castillo, 74 AD3d 535; Falkner v Hand, 61 AD3d 1153.)

      Kaplan, Hanson, McCarthy, Adams, Finder & Fishbein, Yonkers (Jeffrey A. Domoto of counsel), for Pincus Bayer and another, respondents in the second above-entitled action.
    I. The Court in Toure v Avis Rent A Car Sys. (98 NY2d 345 [2002]) did not intend to undertake a broader approach to allow more plaintiffs to meet the threshold. (Pommells v Perez, 4 NY3d 566.) II. Quantified range of motion testing contemporaneous to the accident provides a solid, definable bench mark upon which to weed out frivolous actions which do not meet the threshold. (Licari v Elliott, 57 NY2d 230; Dufel v Green, 84 NY2d 795.) III. Even assuming range of motion testing contemporaneous to the accident is found to be not probative and no longer required, plaintiff has still not met the threshold under Toure v Avis Rent A Car Sys. (98 NY2d 345 [2002]). (Dufel v Green, 84 NY2d 795; Ikeda v Hussain, 81 AD3d 496; Lemos v Giacomo Mgk, Inc., 82 AD3d 602; Rush v Kwan Chiu, 79 AD3d 1004.) IV Should the lower court’s decision not be affirmed, this matter should be remanded for a new trial.

      Israel, Israel & Purdy, LLP, Great Neck (Stuart M. Israel of counsel), for New Yorkers for Fair Automobile Insurance
    Reform, amicus curiae, in the first above-entitled action.
    The offer of medical testimony in automobile accident cases should not be held to a standard different than medical testimony offered in other personal injury cases, a standard found nowhere in the Insurance Law and created wholly by a patchwork of conflicting court decisions. (Matott v Ward, 48 NY2d 455; Matter of Ernest v Boggs Lake Estates, 12 NY2d 414; Matter of Cyr v Bero Constr. Corp., 75 AD2d 914; John v City of New York, 235 AD2d 210; Elkins v Ferencz, 93 NY2d 938, 253 AD2d 601; Knutson v Sand, 282 AD2d 42; Dufel v Green, 84 NY2d 795.)

      Nicholas I. Timko, New York City, for New York State Trial Lawyers Association, amicus curiae, in the first above-entitled action.
    I. The majority violated the separation of powers doctrine and the plain meaning rule by encroaching upon the powers vested in the Legislature and rewriting the No-Fault Law. (Matter of Maron v Silver, 14 NY3d 230; Plaut v Spendthrift Farm, Inc., 514 US 211; Montgomery v Daniels, 38 NY2d 41; Licari v Elliott, 57 NY2d 230; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; Bates v United States, 522 US 23; Matter of Excellus Health Plan v Serio, 2 NY3d 166; People v Finnegan, 85 NY2d 53; Matter of Coates, 9 NY2d 242; Matter of Jerry v Board of Educ. of City School Dist. of City of Syracuse, 35 NY2d 534.) II. Courts must apply the flexible approach to opposing threshold motions articulated in Toure v Avis Rent A Car Sys. (98 NY2d 345 [2002]). (Matott v Ward, 48 NY2d 455; Whitaker v Soumano, 81 AD3d 411; Valentin v Pomilla, 59 AD3d 184; Mancini v Lali NY, Inc., 77 AD3d 797; Catalano v Kopmann, 73 AD3d 963.)
   OPINION OF THE COURT

Smith, J.

In Pommells v Perez (4 NY3d 566, 571 [2005]), then Chief Judge Kaye described the working of the No-Fault Law (officially the Comprehensive Motor Vehicle Insurance Reparations Act, Insurance Law § 5101 et seq.) by saying: “Abuse . . . abounds.” That included, she said, “abuse ... in failing to separate ‘serious injury’ cases” from others (id.).

No-fault abuse still abounds today. In 2010, no-fault accounted for 53% of all fraud reports received by the Insurance Department (Annual Report to the Governor and the Legislature of the State of New York on the Operations of the Insurance Frauds Prevention Act at 23). “Serious injury” claims are still a source of significant abuse, and it is still true, as it was in 2005, that many courts, including ours, approach claims that soft-tissue injuries are “serious” with a “well-deserved skepticism” (Pommells, 4 NY3d at 571).

Here, we confront three cases in which the Appellate Division rejected allegations of serious injury as a matter of law. We conclude that we must reverse in two of the cases, Perl v Meher and Adler v Bayer, because the evidence plaintiffs have put forward is legally sufficient. We affirm in the third case, Travis v Batchi.

In finding that two of these three claims survive our scrutiny, we by no means signal an end to our skepticism, or suggest that that of lower courts is unjustified. There are cases, however, in which the role of skeptic is properly reserved for the finder of fact, or for a court that, unlike ours, has factual review power.

I

Plaintiffs Joseph Perl, David Adler and Sheila Travis brought lawsuits for personal injuries allegedly resulting from automobile accidents; Perl’s and Adler’s wives also sued, asserting derivative claims. Because the No-Fault Law bars recovery in automobile accident cases for “non-economic loss” (e.g., pain and suffering) unless the plaintiff has a “serious injury” as defined in the statute, Perl, Adler and Travis seek to show that their injuries were serious.

Of the several categories of “serious injury” listed in the statutory definition, three are relevant here: “permanent consequential limitation of use of a body organ or member”; “significant limitation of use of a body function or system”; and

“a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment” (Insurance Law § 5102 [d]).

Plaintiffs in all these cases rely on one or both of the first two of these categories, claiming permanent and significant limitations of their use of a bodily organ or system. Travis also relies on the third category, claiming that she was disabled from “substantially all” of her “usual and customary daily activities” for at least 90 out of the 180 days following her accident.

Defendants challenged plaintiffs’ showing of serious injury in all three cases. In Perl, defendants moved for summary judgment; Supreme Court denied the motion, but the Appellate Division reversed and dismissed the complaint, with two Justices dissenting (Perl v Meher, 74 AD3d 930 [2d Dept 2010]). The Adler case was tried, resulting in a jury verdict for plaintiffs after defendants had unsuccessfully moved for judgment as a matter of law under CPLR 4401; the Appellate Division reversed, granted defendants’ motion and dismissed the complaint CAdler v Bayer, 77 AD3d 692 [2d Dept 2010]). In Travis, Supreme Court granted defendants’ motion for summary judgment and the Appellate Division affirmed (Travis v Batchi, 75 AD3d 411 [1st Dept 2010]). Plaintiffs in Perl appeal to this Court as of right, pursuant to CPLR 5601 (a). We granted leave to appeal to plaintiffs in Adler and Travis.

All three cases turn on the sufficiency of plaintiffs’ proof. In Perl and Travis, all of the Appellate Division Justices concluded, as do we, that the evidence offered in support of defendants’ summary judgment motions sufficed to shift to plaintiffs the burden of coming forward with evidence to raise an issue of fact. The question is whether plaintiffs met that burden. In Adler, the question is whether plaintiffs offered enough evidence at trial to get to the jury.

II

The Perl and Adler cases are not related, but they are similar in a number of ways, and plaintiffs in each relied on the testimony of the same expert, Dr. Leonard Bleicher.

Perl and Adler both testified that their ability to function had been significantly limited since their accidents. Perl, 82 when the accident occurred, testified that he could no longer garden, carry packages while shopping, or have marital relations. Adler, a school teacher, testified that he could not move around easily, could not read for a long time and could not pick up his children.

We held in Toure v Avis Rent A Car Sys. (98 NY2d 345, 350 [2002]) that such “subjective complaints alone are not sufficient” to support a claim of serious injury; there must be “objective proof.” Thus Dr. Bleicher’s testimony was critical in both the Perl and Adler cases. In each case, the doctor testified that he examined the injured plaintiff shortly after the accident; that he performed a number of clinical tests, named but not fully described in the record, which were “positive”—i.e., indicated some departure from the norm; that he observed that the patient had difficulty in moving and diminished strength; and that the patient’s range of motion was impaired. Bleicher did not, at his initial examination of either Perl or Adler, quantify the range of motion he observed, except to say that Perl’s was “less than 60% of normal in the cervical and lumbar spine.” In each case, however, Bleicher again examined the patient several years later, using instruments to make specific, numerical range of motion measurements.

We said in Toure:

“In order to prove the extent or degree of physical limitation, an expert’s designation of a numeric percentage of a plaintiffs loss of range of motion can be used to substantiate a claim of serious injury. An expert’s qualitative assessment of a plaintiffs condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiffs limitations to the normal function, purpose and use of the affected body organ, member, function or system” (id. [citations omitted]).

We need not decide here whether Bleicher’s testimony would furnish legally sufficient proof of serious injury under the “qualitative” prong of Toure. While his observations at his initial examinations were detailed, it is debatable whether they have an “objective basis,” or are simply a recording of the patients’ subjective complaints. Under the “quantitative” prong of Toure, however, Bleicher’s later, numerical measurements are sufficient to create an issue of fact as to the seriousness of Perl’s and Adler’s injuries.

Defendants argue that Bleicher’s quantitative findings were made too long after Perl’s and Adler’s accidents. The Appellate Division in Perl agreed, holding that “plaintiffs are . . . required to demonstrate restricted range of motion based on findings both contemporaneous to the accident and upon recent findings” (Perl v Meher, 74 AD3d at 931 [citations omitted]). (The Appellate Division’s rationale in Adler, though not specifically explained, is presumably the same.) Toure, however, imposed no such requirement of “contemporaneous” quantitative measurements, and we see no justification for it.

There is nothing obviously wrong or illogical about following the practice that Bleicher followed here—observing and recording a patient’s symptoms in qualitative terms shortly after the accident, and later doing more specific, quantitative measurements in preparation for litigation. As the author of a recent article points out, a contemporaneous doctor’s report is

important to proof of causation-, an examination by a doctor years later cannot reliably connect the symptoms with the accident. But where causation is proved, it is not unreasonable to measure the severity of the injuries at a later time (see Morrissey, ‘Threshold Law’: Is a Contemporaneous Exam by Court of Appeals in Order?, NYLJ, Jan. 18, 2011). Injuries can become significantly more or less severe as time passes.

Bleicher testified in Adler that it is the better practice to defer a precise quantitative assessment of an injury: “On initial examination when person has assorted extensive fresh recent acute injuries, then it’s better to go with our visual parameters because measuring range of motion of the joint when it’s acutely injured, it’s not reliable. It doesn’t present correct numbers.” The orthopedist who testified for the defense in Adler did not challenge this opinion. In fact, the defense doctor acknowledged that he, like Bleicher in his initial examination, relied on visual estimates of range of motion, not on measurements with instruments.

We agree with the Appellate Division dissenters in Perl that a rule requiring “contemporaneous” numerical measurements of range of motion could have perverse results. Potential plaintiffs should not be penalized for failing to seek out, immediately after being injured, a doctor who knows how to create the right kind of record for litigation. A case should not be. lost because the doctor who cared for the patient initially was primarily, or only, concerned with treating the injuries. We therefore reject a rule that would make contemporaneous quantitative measurements a prerequisite to recovery.

Defendants in both Perl and Adler offer alternative grounds for upholding the Appellate Division’s dismissal of the complaints. We find only one of those grounds to warrant discussion: Defendants in Perl claim that there was insufficient evidence of a causal connection between Perl’s accident and his injury. They assert that here, as in Carrasco v Mendez (decided with Pommells v Perez), defendants “presented evidence of a preexisting degenerative . . . condition causing plaintiffs alleged injuries, and plaintiff failed to rebut that evidence sufficiently to raise an issue of fact” (4 NY3d at 579).

Defendants in Perl did indeed present evidence, in the form of a sworn radiologist’s report based on an MRI, that Perl’s injuries were “degenerative in etiology and longstanding in nature, preexisting the accident.” However, plaintiffs’ contrary evidence, while hardly powerful, was sufficient to raise an issue of fact. They submitted another radiologist’s affidavit, saying that, while some findings from the MRI “are consistent with degenerative disease,” a single MRI cannot rule out the possibility that “the patient’s soft tissue findings are ... a result of a specific trauma.” That question, this radiologist said, can best be judged “by the patient’s treating physician in conjunction with exam, history and any previous tests.”

The treating physician, Dr. Bleicher, opined that since Perl “had not suffered any similar symptoms before the accident or had any prior injuries/medical conditions that would result in these findings,” the findings were causally related to the accident. A factfinder could of course reject this opinion: It is certainly not implausible that a man of 82 would have suffered significant degenerative changes. We cannot say as a matter of law on this record, however, that such changes were the sole cause of Perl’s injuries.

Though we hold plaintiffs’ evidence of serious injury in both Perl and Adler to be legally sufficient, both cases have troubling features. Most striking is the sworn assertion by a defense physician who examined Perl, which in substance accuses Perl of malingering. The doctor said:

“The fact that he sits, yet presents with a show of only 10 degrees of flexion of the lumbar spine is contradictory. His ‘give-away’ strength is contradictory with his ambulation. This individual’s show of such decreased range of motion is totally contradicted by the fact that he followed me about, rotating the cervical spine 60 degrees and flexing at least 30 degrees. I do not believe that this individual presents with any true findings at this time.”

The issue presented by this evidence, of course, is one of credibility, which is not for this Court to decide.

III

We reach a different result in Travis, because we see no evidence in the record of that case of a serious injury as defined in the No-Fault Law.

Travis, like Perl and Adler, relies on the two “limitation of use” categories of the statutory definition—categories that in substance require some significant, permanent impairment. But no evidence of such an impairment is to be found—indeed we cannot tell from the record what Travis’s alleged permanent impairment is. She submitted a report from her treating physician, stating the conclusion that she has a “[m'jild partial permanent disability,” but the report does not describe the disability; it says that Travis is “[c]urrently able to perform the essential functions of her job.” There is no evidence that she suffered either a “permanent consequential limitation of use of a body organ or member” or a “significant limitation of use of a body function or system.”

Travis relies more heavily on the category of the definition that relates to temporarily disabling conditions, claiming that she had a “medically determined injury or impairment of a non-permanent nature which prevented] [her] from performing substantially all of the material acts which constitute [her] usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.” Again, however, the evidence to support the claim is lacking. Even Travis’s subjective description of her injuries—which in any event would be insufficient, under Toure, to defeat summary judgment— does not show that there were 90 of the 180 days after the injury when she was disabled from “substantially all” of her usual activities. On the contrary, she acknowledges that she was able to do some work from home less than three months after the accident. And her doctor’s reports say nothing at all about what activities she could and could not perform until, 111 days after the accident, she was found able “to perform the essential functions of her job,” though with “restrictions.” The record does not show any “medically determined injury” that would bring Travis within the “90/180” provision of the statute.

Accordingly, in Perl v Meher, the order of the Appellate Division should be reversed, with costs, and the order of Supreme Court denying defendants’ motion for summary judgment reinstated; in Adler v Bayer, the order of the Appellate Division should be reversed, with costs, defendants’ motion for judgment as a matter of law denied, and the case remitted to the Appellate Division for consideration of issues raised but not determined on the appeal to that court; and in Travis v Batchi, the order of the Appellate Division should be affirmed, with costs.

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

In Perl v Meher: Order reversed, etc.

In Adler v Bayer: Order reversed, etc.

In Travis v Batchi: Order affirmed, with costs.


source: Caselaw Access Project

author: Jones, J.

license: Public Domain

text:
    [960 NE2d 419, 936 NYS2d 650]
    The People of the State of New York, Respondent, v Sherman Rivers, Appellant.
    Argued October 20, 2011;
    decided November 22, 2011

      POINTS OF COUNSEL

      Appellate Advocates, New York City (Jonathan M. Kratter and Lynn W.L. Fahey of counsel), for appellant.
    I. Appellant was

      denied a fair trial by the prosecutor’s repeated failure to respect the letter and spirit of the trial court’s Molineux rulings. (People v Ventimiglia, 52 NY2d 350; People v Arafet, 13 NY3d 460; People v Alvino, 71 NY2d 233; People v Molineux, 168 NY 264; People v Fitzgerald, 156 NY 253; People v Vargas, 88 NY2d 856; People v Allweiss, 48 NY2d 40; People v Rojas, 97 NY2d 32; People v Resell, 3 NY3d 385; People v Vails, 43 NY2d 364.) II. The trial court improperly permitted a battalion chief and two fire marshals to testify that the fires were intentionally set and how, and that they could not have resulted from natural or accidental causes. (People v Brown, 110 App Div 490; People v Grutz, 212 NY 72; People v Bajraktari, 154 AD2d 542; People v Maxwell, 116 AD2d 667; People v Abreu, 114 AD2d 853; People v Negron, 280 AD2d 557; People v Goldberg, 215 AD2d 402; People v Johnson, 186 AD2d 584; People v Capobianco, 176 AD2d 815; People v Rivera, 131 AD2d 518.)

      Charles J. Hynes, District Attorney, Brooklyn (Victor Barall and Leonard Joblove of counsel), for respondent.
    I. The defendant’s claim that he was deprived of a fair trial by the prosecutor’s alleged failure to respect the “letter and spirit” of the court’s Molineux rulings is unpreserved in part, and, moreover, is without merit. In any event, in light of the overwhelming evidence, any error in the prosecutor’s failure to abide by the court’s rulings was harmless. (People v Crimmins, 36 NY2d 230; People v Matthews, 68 NY2d 118; People v Ventimiglia, 52 NY2d 350; People v Small, 12 NY3d 732; People v Calabria, 94 NY2d 519; People v Alicea, 37 NY2d 601; People v Arafet, 13 NY3d 460; People v Thomas, 26 AD3d 188; People v Brown, 277 AD2d 974; People v Hamilton, 73 AD3d 408.) II. The defendant has, in part, failed to preserve his claim regarding the testimony of the two fire marshals and a fire battalion chief on the cause of the fires. Moreover, the claim is without merit. In any event, if the testimony was improperly admitted, the error was harmless. (People v Grutz, 212 NY 72; People v Crimmins, 36 NY2d 230; People v El Machiah, 71 AD3d 914; People v Narrod, 23 AD3d 1061; People v Taylor, 75 NY2d 277; People v Brown, 97 NY2d 500; People v Qualls, 55 NY2d 733; People v Fleming, 70 NY2d 947; People v Miller, 91 NY2d 372; People v Cronin, 60 NY2d 430; People v Hicks, 2 NY3d 750.)
   OPINION OF THE COURT

Jones, J.

Defendant was charged with numerous offenses, including three counts of arson in the first degree (Penal Law § 150.20), in connection with two fires set five days apart in a four-story apartment building located at 408 Greene Avenue in Brooklyn, New York. The evidence adduced at trial established that defendant, who did not own the building, engaged in a scheme to profit from its illegal sale. Defendant gained control of the property by means of a forged and fraudulently notarized deed. He then contracted to sell it to a third party for $300,000. Pursuant to a clause in the sales contract, the property was to be delivered “vacant and free of leases or tenancies.” To that end, defendant, on two occasions, paid others to set fires in the building to drive the tenants out. Defendant was convicted, upon a jury verdict, of three counts of arson in the first degree, one count relating to a fire set on May 25, 2004 (expectation of pecuniary profit), and the other two counts relating to a fire set on May 30, 2004 (expectation of pecuniary profit and use of an incendiary device).

On appeal, defendant argued that the prosecutor repeatedly violated the trial court’s Molineux rulings (see People v Molineux, 168 NY 264 [1901] [for Molineux rule]; People v Allweiss, 48 NY2d 40, 46-48 [1979] [for summary of principles related to Molineux rule]) by eliciting evidence of an uncharged arson attempt and of his prior bad acts and associations—the elicited testimony linked defendant to violence, guns, the Nation of Islam, and a violent motorcycle gang. In defendant’s view, the prosecutor’s repeated violations of the court’s Molineux rulings cumulatively denied him the right to a fair trial (see People v Calabria, 94 NY2d 519, 522 [2000]).

Defendant further argued that the elicited expert testimony concerning the origins of the fires was inadmissible under People v Grutz (212 NY 72, 82 [1914] [“The physical facts” of an arson are always “so simple that they can be readily understood when properly described, and it is then for the jury to draw the appropriate conclusion,” without guidance of expert opinion]) and People v Narrod (23 AD3d 1061, 1062 [4th Dept 2005] [it was error to allow an “arson investigator to testify that he had ruled out accidental causes of the fire”]). According to defendant, the experts’ improper testimony invaded the jury’s province and denied him the right to a fair trial.

The Appellate Division affirmed the convictions, stating that any error concerning the contested testimony was harmless (74 AD3d 995, 995 [2d Dept 2010]). A Judge of this Court granted defendant leave to appeal and we now affirm.

Although, as the People concede, certain questions asked by the prosecutor at trial clearly violated the trial court’s Molineux rulings, the contested testimony elicited, on the whole, was not significant. That is, if defendant was prejudiced at all, such prejudice was minimal. Each time after defendant moved for a mistrial based on an alleged violation of the court’s Molineux rulings, the trial court, in its discretion, considered the arguments of the parties, concluded that what happened did not rise to the level of a mistrial and, in certain instances, provided further instruction to counsel to refrain from making statements regarding improper topics. For example, at the conclusion of the prosecutor’s opening statement, defendant moved for a mistrial, arguing, inter alia, that the prosecutor’s references to the Nation of Islam and Muslims were intended to inflame and prejudice the jury. After ruling that a mistrial was not warranted, the court told the prosecutor to “stay focused” and to avoid the appearance of stereotyping certain individuals just because they are members of the Nation of Islam and/or Muslims.

The trial court also took steps to minimize the impact of arguably improper testimony or prosecutorial statements during the trial. For example, after the prosecutor made conclusory statements of fact during his opening statement, the court sustained defense counsel’s objection and reminded the jurors in no uncertain terms that “what counsel says is not evidence in the case. Rather, you may consider the opening statement as a preview or an outline of what counsel believes the evidence will prove in this case.”

In any event, to the extent any evidence subject to the trial court’s Molineux rulings was improperly admitted, such error was harmless (see People v Crimmins, 36 NY2d 230, 240-242 [1975]). The evidence against defendant, from his own taped admissions, and testimony of the individual who set the first fire at defendant’s behest, overwhelmingly established defendant’s guilt of the crimes charged. Further, there was no reasonable possibility or significant probability that the improper questions and elicited references to defendant’s bad acts and negative associations affected the jury’s verdict, or that the absence of such errors would have led to an acquittal.

Defendant’s second argument—that the expert testimony, ruling out accidental and natural causes of the fires and concluding that one of the fires was intentionally set, invaded the jury’s province—is equally unavailing. At the outset, we consider the rule set forth in Grutz prohibiting expert testimony concerning whether a fire was intentionally set. This prohibition occurs as dictum in an opinion written in 1914—at a time when fire investigations involved far less technical expertise than they do today. Nevertheless Grutz is still frequently cited for the proposition that an expert may not invade the province of the jury by testifying that a fire was intentionally set or that the facts are “consistent” with an intentionally set fire. It has continued to be cited even after Appellate Division panels have held that an arson expert may testify to a reasonable degree of scientific certainty that, based on the expert’s investigations, all possible natural and accidental causes of the fire had been eliminated— thus eliminating all but intentional causes.

The result is that the law in New York is at once confusing and anomalous. As the Connecticut Supreme Court has recently noted,

“the rule, followed by the courts of New York and Virginia, that precludes an expert witness from giving an opinion about the ultimate issue in arson cases, namely, whether the fire was intentionally set
... is a distinct minority position that stands in stark contrast to the ‘modern trend,’ which is ‘to abolish the ultimate issue prohibition’ ” (State v Beavers, 290 Conn 386, 417 n 27, 963 A2d 966, 977 n 27 [2009], quoting 1 Paul C. Giannelli and Edward J. Imwinkelried, Scientific Evidence § 5.07, at 321 [4th ed 2007], and citing cases).

We now put the Grutz proposition to rest. New York has a well-established body of case law concerning the admissibility and limits of expert testimony, that should be brought to bear in deciding what an arson expert may tell the jury in a particular case. “The guiding principle is that expert opinion is proper when it would help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror” (De Long v County of Erie, 60 NY2d 296, 307 [1983] [citations omitted]; see People v Taylor, 75 NY2d 277, 288 [1990] [same]). Moreover, this principle applies to testimony regarding both “the ultimate questions and those of lesser significance” (People v Cronin, 60 NY2d 430, 432-433 [1983]).

Although, in deciding whether expert testimony is admissible, courts must determine whether “the potential value of the evidence is outweighed by the possibility of undue prejudice to the defendant or interference with the province of the jury” (People v Bennett, 79 NY2d 464, 473 [1992]), “courts should be wary not to exclude such testimony merely because, to some degree, it invades the jury’s province” (People v Lee, 96 NY2d 157, 162 [2001]). “Expert opinion testimony is used in partial substitution for the jury’s otherwise exclusive province which is to draw ‘conclusions from the facts.’ It is a kind of authorized encroachment in that respect” (People v Jones, 73 NY2d 427, 430-431 [1989] [citation omitted], quoting Cronin, 60 NY2d at 432). Obviously, expert testimony would not generally be admissible in a case where the fire’s cause is not in question.

Here, because the evidence adduced at trial conclusively established, apart from the expert testimony, that the subject fires were intentionally set, it can be argued that the admission of expert testimony was largely unnecessary. In any event, any error was harmless, because the evidence of defendant’s guilt was overwhelming and there was no significant probability that the jury would have acquitted defendant without the expert testimony (see Crimmins, 36 NY2d at 240-242).

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

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

Order affirmed.

      . With respect to the first fire, a battalion chief testified that “it appeared a flammable liquid had been put on the stairs and lit on fire” and “[tjhere was no other apparent cause for the fire.” The chief further testified that the second fire was “suspicious.”

        The fire marshal who investigated the first fire testified that the “pour pattern” indicated that a flammable liquid had run from one step down to the next and been ignited. He further testified that there are three causes of fires, “[accidental, natural and non-accidental,” and that the fire was neither natural nor accidental but must have originated “[i]n the vapors of a flammable liquid that was introduced to the steps.”
      The fire marshal who investigated the second fire testified that he eliminated accidental causes of the fire due to the absence of any ignition sources and natural causes because there had been no lightning. He further testified that “[t]he fire was originated by vapors of a flammable liquid introduced.” Finally, he testified that his findings were consistent with the use of an incendiary device such as a Molotov cocktail.

      . See e.g. People v Champion (247 AD2d 901, 901 [4th Dept 1998], lv denied 91 NY2d 971 [1998]); People v Avellanet (242 AD2d 865, 866 [4th Dept 1997], lv denied 91 NY2d 868 [1997]).

      . See e.g. People v Negron (280 AD2d 557, 558 [2d Dept 2001]).

      . See e.g. People v Capobianco (176 AD2d 815, 816 [2d Dept 1991], lv denied 79 NY2d 825 [1991]); Champion (247 AD2d at 901); Avellanet (242 AD2d at 866); People v Maxwell (116 AD2d 667, 668 [2d Dept 1986], lv denied 67 NY2d 886 [1986]).


author: Pigott, J. Graffeo, J. (dissenting).

text:
    [961 NE2d 623, 938 NYS2d 232]
    Juliette DeJoie Cadichon et al., Appellants, v Thomas Facelle, M.D., et al., Respondents.
    Argued October 19, 2011;
    decided November 21, 2011

      McKinney’s, CPLR 3216.
    NY Jur 2d, Actions §§ 142, 143.
    Siegel, NY Prac § 375.
    ANNOTATION REFERENCE
    See ALR Index under Dismissal, Discontinuance, and Nonsuit.
    FIND SIMILAR CASES ON WESTLAW® Database: NY-ORCS
    Query: dismiss! /3 ministerial! & vacate /3 dismissal
    POINTS OF COUNSEL

      Pollack, Pollack, Isaac & De Cicco, New York City (Brian J. Isaac of counsel), and Paul B. Weitz & Associates, P.C., for appellants.
    The lower courts erroneously refused to vacate the clerk’s administrative marking of this case as dismissed based on plaintiffs’ failure to file a note of issue, because same was caused by defendants’ disregard of their discovery obligations in connection with the May 3 order; CPLR 205 (a) as amended applies because it was effective prior to the time of the trial court’s decision on the motion to vacate; the motion should not have been denied for failure to include an affidavit of merit in any event, since plaintiffs’ papers amply showed that defendants’ conduct prevented the filing of a note of issue. (Sortino v Fisher, 20 AD2d 25; Thomas v Melbert Foods, 19 NY2d 216; Fischer v Pan Am. World Airways, 16 NY2d 725; Salama v Cohen, 16 NY2d 1058; Commercial Credit Corp. v Lafayette Lincoln-Mercury, 17 NY2d 367; Cohn v Borchard Affiliations, 25 NY2d 237; Airmont Homes v Town of Ramapo, 69 NY2d 901; Chase v Scavuzzo, 87 NY2d 228; Lopez v Imperial Delivery Serv., 282 AD2d 190; Townsend v Merrill Lynch Futures, 187 AD2d 326.)

      Martin Clearwater & Bell LLP, New York City (Stewart G. Milch, Joseph L. DeMarzo and John J. Barbera of counsel), for Thomas Facelle, M.D., respondent.
    Plaintiffs’ complaint was properly dismissed, and their motion to vacate the dismissal was properly denied. In response to Supreme Court’s validly issued order pursuant to CPLR 3216, plaintiffs took no steps to complete discovery or file their note of issue. Upon moving to vacate the dismissal, plaintiffs failed to offer a reasonable excuse for their default or demonstrate the existence of a meritorious claim. (Baczkowski v Collins Constr. Co., 89 NY2d 499; Fenner v County of Nassau, 80 AD3d 555; Walker v City of New York, 46 AD3d 278; Blackmon v Meo, 284 AD2d 711, 97 NY2d 602; Bur-ridge v Gaines, 281 AD2d 967; Smith v Montefiore Med. Ctr., 60 AD3d 479; Huger v Cushman & Wakefield, Inc., 58 AD3d 682; Melius v Pletman, 202 AD2d 880, 84 NY2d 903; McDonald v Montefiore Med. Ctr., 60 AD3d 547; McKinney v Corby, 295 AD2d 580.)

      Steinberg, Symer & Platt, LLP, Poughkeepsie (Jonathan Symer and Ellen Fischer Bopp of counsel), for Good Samaritan Hospital, respondent.
    I. The initial dismissal of the action on December 31, 2007 was appropriate. (Heredia v Two Kings, 4 AD3d 153; Dhaliwal v Long Boat Taxi, 305 AD2d 449; Giannoccoli v One Cent. Park W. Assoc., 15 AD3d 348; Goldberg v Tunstall, 295 AD2d 315; Kihl v Pfeffer, 94 NY2d 118.) II. The Supreme Court’s denial of the original motion to vacate the dismissal was appropriate and within its discretion. (Baczkowski v Collins Constr. Co., 89 NY2d 499; Davis v Cardiovascular Consultants of Long Is., P.C., 65 AD3d 1076; Petersen v Lysaght, Lysaght & Kramer, P.C., 47 AD3d 783; Fenner v County of Nassau, 80 AD3d 555; Bort v Perper, 82 AD3d 692; Cato v City of New York, 70 AD3d 471; Palumbo v Dell, 73 AD3d 723; Rocha-Silva v St. John’s Hosp., 70 AD3d 1025; Blackmon v Meo, 284 AD2d 711; Burridge v Gaines, 281 AD2d 967.) III. CPLR 205 (a) is inapplicable to this review, and in any event would not result in reversal even if applied. (State of New York v Daicel Chem. Indus., Ltd., 42 AD3d 301; Aguaiza v Vantage Props., LLC, 69 AD3d 422; [Matter of Kahn [National City Bank], 284 NY 515; Gallewski v Hentz & Co., 301 NY 164; Robinson v Robins Dry Dock & Repair Co., 238 NY 271; Matter of Asman v Ambach, 64 NY2d 989; Matter of Alscot Inv. Corp. v Incorporated Vil. of Rockville Ctr., 64 NY2d 921; Matter of Mascony Transp. & Ferry Serv. v Richmond, 71 AD2d 896; Black Riv. Regulating Dist. v Adirondack League Club, 307 NY 475; Matter of Tartaglia v McLaughlin, 297 NY 419.)

      McAloon & Friedman, P.C., New York City (Gina Bernardi Di Folco of counsel), for Montefiore Medical Center, respondent.
    I. The December 27, 2007 dismissal was proper. (Baczkowski v Collins Constr. Co., 89 NY2d 499; Walker v City of New York, 46 AD3d 278; Felix v County of Nassau, 52 AD3d 653; Huger v Cushman & Wakefield, Inc., 58 AD3d 682; McDonald v Montefiore Med. Ctr., 60 AD3d 547.) II. Plaintiff failed to demonstrate a reasonable excuse or a meritorious case. (Walker v City of New York, 46 AD3d 278; Lopez v Imperial Delivery Serv., 282 AD2d 190, 96 NY2d 937; Rijo v McLaughlin, 309 AD2d 716; Felix v

      County of Nassau, 52 AD3d 653; Betty v City of New York, 12 AD3d 472; Campos v New York City Health & Hosps. Corp., 307 AD2d 785; Markarian v Hundert, 180 AD2d 780; Davis v Good-sell, 6 AD3d 382; McCracken v Nitto Kohki USA, 271 AD2d 510; Donegan v St. Joseph’s Med. Ctr., 283 AD2d 152.) III. CPLR 205 does not mandate vacatur. (Andrea v Amone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C. [Habiterra Assoc.], 5 NY3d 514; Doyle v American Home Prods. Corp., 583 F3d 167; Boardman v Glissando Enters, of N. J., 41 AD2d 523; Levy v Kelly Assoc., 20 AD2d 772; Sortino v Fisher, 20 AD2d 25; People ex rel. Burby v Howland, 155 NY 270.)

      Clausen Miller, P.C., New York City (Edward M. Tobin of counsel), for Louis May, M.D., respondent.
    I. The Appellate Division, First Department, properly determined that the trial court did not abuse its discretion in denying plaintiffs’ motion to vacate the dismissal. (Lopez v Imperial Delivery Serv., 282 AD2d 190; Townsend v Merrill Lynch Futures, 187 AD2d 326; Frank L. Ciminelli Constr. Co. v City of Buffalo, 110 AD2d 1075; Walker v City of New York, 46 AD3d 278; Smith v Montefiore Med. Ctr., 60 AD3d 479; Arts4All, Ltd. v Hancock, 54 AD3d 286; Seletsky v St. Francis Hosp., 263 AD2d 452; Safina v Queens-Long Is. Med. Group, 238 AD2d 395; Migdol v City of New York, 291 AD2d 201.) II. The amended version of CPLR 205 (a) does not apply to this action. (Campos v New York City Health & Hosps. Corp., 307 AD2d 785; Wilson v Galicia Contr. & Restoration Corp., 8 AD3d 560; AWL Indus., Inc. v QBE Ins. Corp., 65 AD3d 904; Foster v Dealmaker, SLS, LLC, 63 AD3d 1640; Ragubir v 44 Ct. St., LLC, 60 AD3d 833; Du Valle v Swan Lake Resort Hotel, LLC, 26 AD3d 616; Juracka v Ferrara, 137 AD2d 921; Gager v White, 53 NY2d 475; Jacobus v Colgate, 217 NY 235; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577.)
   OPINION OF THE COURT

Pigott, J.

In May 2003, plaintiffs Juliette and Jean Cadichon commenced a medical malpractice action against defendants Thomas Facelle, M.D., Good Samaritan Hospital and Montefiore Medical Center for injuries allegedly sustained by Mrs. Cadichon during surgery in July 2002. The trial court executed a preliminary and compliance conference order in August 2003 and May 2004, respectively, concerning the parties’ discovery obligations and examinations before trial.

After plaintiffs commenced a separate medical malpractice action against defendant Dr. May—which was consolidated with the action against the other defendants in May 2006—plaintiffs and Dr. May agreed to their discovery obligations in an April 2005 preliminary conference order. Once the cases were consolidated in May 2006, another compliance conference order was prepared, setting forth the parties’ discovery obligations, directing that all examinations before trial be completed by September 13, 2006, and stating that plaintiffs were to file their note of issue and certificate of readiness by November 2006.

At issue on this appeal is the May 3, 2007 stipulation. At the time this stipulation was executed by the trial court and the parties, plaintiffs had complied with all discovery obligations, and Mrs. Cadichon had been deposed twice, once before and once after the consolidation of the actions. The order directed that Dr. Facelle be deposed by June 26, 2007; Dr. May by July 10, 2007; and representatives of Good Samaritan Hospital and Montefiore Medical Center by August 21, 2007, with plaintiffs providing the hospital defendants with 30 days notice as to the names of the representatives plaintiffs wished to depose. The stipulation also directed plaintiffs’ counsel to file the note of issue on or before December 27, 2007.

Also served upon and signed by plaintiffs’ counsel was a “DEMAND FOR SERVICE AND FILING OF NOTE OF ISSUE” which states as follows:

“THE COURT DEMANDS, PURSUANT TO C.P.L.R. 3216, THAT YOU RESUME PROSECUTION OF THE ABOVE ENTITLED ACTION, AND THAT YOU SERVE AND FILE A NOTE OF ISSUE [AS PER THE ANNEXED ONE PAGE STIPULATION DATED 5/3/07, I.E., BY 12/27/07][]AFTER THE RECEIPT OF THIS DEMAND.
“YOUR DEFAULT IN COMPLYING WITH THIS DEMAND WITHIN THE 90-DAY PERIOD WILL SERVE AS A BASIS FOR THE COURT, ON ITS OWN MOTION, TO DISMISS THE ACTION FOR UNREASONABLY NEGLECTING TO PROCEED” (emphasis supplied).

December 27, 2007 came and went. Plaintiffs did not file their note of issue by that date, allegedly because defendants had still not been deposed. Unbeknownst to the parties, the case was dismissed on December 31, 2007 and, for the first few months of the new year, plaintiffs attempted to schedule deposition dates, the court having failed to inform any of the parties of the case’s dismissal. Counsel for Dr. Facelle agreed to produce his client for a deposition on April 7, 2008. Around that same time, in March 2008, Good Samaritan Hospital moved to dismiss the action, but those papers were returned to it by the Clerk’s Office on the ground that the motion was moot. This was the earliest that any of the litigants had learned that the matter had been dismissed.

Supreme Court denied plaintiffs’ motion to vacate the dismissal pursuant to CPLR 3216, and the Appellate Division, in a 3-2 decision, affirmed (71 AD3d 520 [2010]). Plaintiffs appeal as of right on the two-Justice dissent. We previously determined that the Appellate Division order should be deemed the final appealable paper for purposes of this Court’s jurisdiction (15 NY3d 877, 879 [2010]), and we now reverse.

CPLR 3216 (a) provides that

“[w]here a party unreasonably neglects to proceed generally in an action or otherwise delays in the prosecution thereof against any party who may be liable to a separate judgment, or unreasonably fails to serve and file a note of issue, the court, on its own initiative or upon motion, may dismiss the party’s pleadings on its terms.”

A case cannot be dismissed pursuant to CPLR 3216 (a), however, unless a written demand is served upon “the party against whom such relief is sought” in accordance with the statutory requirements, along with a statement that the “default by the party upon whom such notice is served in complying with such demand within said ninety day period will serve as a basis for a motion by the party serving said demand for dismissal as against him for unreasonably neglecting to proceed” (CPLR 3216 [b] [3] [emphasis supplied]).

Here, the action was apparently “dismissed” on December 31, 2007. But there is no order of dismissal to that effect, as evidenced by the parties’ conduct in scheduling depositions as if the case were still active. Defendants point to the stipulation, claiming that once the plaintiffs failed to file their note of issue, the trial court was within its right to dismiss the action. It is evident from the 90-day demand and the dictates of CPLR 3216 that the plaintiffs’ failure to comply with the demand would “serve as a basis” for the trial court, on its own motion, to dismiss the action. That is not what occurred here; there is no evidence in the record that the trial court made a motion to dismiss the action in this case, and it is apparent that the case was dismissed based upon plaintiffs’ failure to comply with the May 3, 2007 stipulation and 90-day demand in doing so. Indeed, there was apparently no “order” of the court dismissing the case and, at best, only a ministerial dismissal of the action without benefit of further judicial review even though the stipulation provided that it only “will serve as a basis for the court, on its own motion” (emphasis supplied) to take further action.

Although inapplicable to this case, the July 7, 2008 amendment to CPLR 205 (a), which, as relevant here, states that where a dismissal is one for neglect to prosecute, “the judge shall set forth on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation,” underscores that dismissal of a claim under circumstances such as this involves judicial involvement. It is evident from this record that the case was ministerially dismissed, without notice to the parties, without the entry of any formal order by the court dismissing the matter.

It is apparent from this record that neither plaintiffs nor defendants acted with expediency in moving this case forward. We have noted, repeatedly, that “[l]itigation cannot be conducted efficiently if deadlines are not taken seriously . . . [and] that disregard of deadlines should not and will not be tolerated” (Andrea v Amone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C. [Habiterra Assoc.], 5 NY3d 514, 521 [2005], citing Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725 [2004]; Brill v City of New York, 2 NY3d 648 [2004]; Kihl v Pfeffer, 94 NY2d 118 [1999]). But where, as here, the case proceeds to the point where it is subject to dismissal, it should be the trial court, with notice to the parties, that should make the decision concerning the fate of the case, not the Clerk’s Office.

Therefore, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and plaintiffs’ complaint should be reinstated.

Graffeo, J. (dissenting).

Although it may not be apparent from the majority writing, the issue before us is whether the courts below abused their discretion in declining to reinstate plaintiffs’ claim after it was dismissed as a consequence of their undisputed failure to comply with a CPLR 3216 90-day demand to file a note of issue. Because I discern no abuse of discretion, I would affirm.

The majority reinstates plaintiffs’ complaint based on their conclusion that the purported “ministerial” dismissal of the claim was erroneous because it was not preceded by a motion on notice—an argument that plaintiffs have not asserted at any stage of this proceeding. The majority therefore decides this case on an unpreserved issue that was never raised in the parties’ submissions. The approach is also misguided because the fact that the prior dismissal was not preceded by such a motion could not have had any material effect on the rights of the parties. If Supreme Court had sua sponte initiated a motion on notice to dismiss plaintiffs’ claim based on failure to comply with the 90-day demand as the majority suggests should have occurred, plaintiffs would still have had to meet the CPLR 3216 standard in order to avoid dismissal—the same standard Supreme Court applied to determine the motion to vacate the order of dismissal. Since plaintiffs failed to meet the statutory standard (a conclusion that the majority does not dispute), they are not entitled to reinstatement of their claim. Accordingly, I respectfully dissent.

I.

In 2003 and 2005, plaintiffs Juliette and Jean Philippe Cadichon commenced separate medical malpractice actions against two physicians and two hospitals arising from treatment Mrs. Cadichon received following the surgical removal of her gallbladder. A series of scheduling orders were issued directing discovery and imposing deadlines for plaintiffs to take certain actions, including the filing of a note of issue. The actions were consolidated in May 2006 and a compliance conference was conducted by Supreme Court in May 2007.

At that time, with significant discovery remaining outstanding, the parties agreed that the depositions of defendants would be conducted by specified deadlines and that the note of issue would be filed by December 27, 2007. In particular, the stipulation directed (1) that the deposition of Dr. Thomas Facelle be completed on or before June 26, 2007; (2) that the deposition of Dr. Louis May be completed on or before July 10, 2007; (3) that the deposition of Good Samaritan Hospital be completed on or before August 21, 2007, with a direction that plaintiffs’ counsel designate a witness to depose from that hospital 30 days prior to the deposition; and (4) that the deposition of Montefiore Medical Center be completed on or before August 21, 2007, again with the caveat that plaintiffs were to designate a witness from that hospital 30 days prior to the examination. Defendants also agreed to complete any independent medical examinations of plaintiff Juliette Cadichon prior to July 16, 2007. The stipulation was then “so ordered” by the court. This was the fifth scheduling order issued by the court.

In addition, Supreme Court sua sponte issued a separate “DEMAND FOR SERVICE AND FILING OF NOTE OF ISSUE” reiterating that plaintiffs were required to file a note of issue on or before December 27, 2007. The demand was accompanied by a warning advising plaintiffs: “YOUR DEFAULT IN COMPLYING WITH THIS DEMAND WITHIN THE 90-DAY PERIOD WILL SERVE AS A BASIS FOR THE COURT, ON ITS OWN MOTION, TO DISMISS THE ACTION FOR UNREASONABLY NEGLECTING TO PROCEED.” Plaintiffs’ attorney acknowledged receipt of the demand by signing the document in the presence of the court.

During the period between the issuance of the court’s May 2007 order and the December 27, 2007 note of issue deadline, plaintiffs did not schedule or conduct the depositions of the physician defendants, nor did they identify the witnesses they sought to depose from the hospitals, a condition precedent to conducting those depositions. Hence, plaintiffs failed to file a note of issue by December 27, 2007 as required by the court’s demand. Plaintiffs also did not undertake to contact the court during this time period, either to seek an extension or amendment of the scheduling order, to move to compel the depositions or to secure other assistance in relation to completion of discovery. Instead, plaintiffs’ attorneys allowed the court’s note of issue deadline to pass without explanation and, as a consequence, plaintiffs’ medical malpractice action was dismissed in December 2007.

In April 2008, plaintiffs’ counsel moved to vacate the dismissal of the action, contending that plaintiffs should not be held accountable for failing to timely file a note of issue because defendants had delayed the completion of discovery. Plaintiffs’ attorneys argued that they had no obligation to present a justifiable excuse for the default or offer an affidavit establishing the merit of their claim as required by CPLR 3216 because they asserted that defendants had stymied any efforts to complete discovery by failing to appear for their depositions.

All of the defendants opposed the motion and cross-moved for the issuance of a judgment memorializing dismissal of the claim. They denied having obstructed the completion of discovery and maintained that plaintiffs’ attorneys had made no attempt to schedule defendants’ depositions within the deadlines established in the scheduling order.

In response, an attorney from plaintiffs’ law firm submitted an affirmation averring that he tried to schedule the deposition of Dr. Facelle by making “numerous” telephone calls to the deposition clerk at the doctor’s law firm. Plaintiffs’ attorney did not indicate that attempts were made to schedule the remaining depositions. Plaintiffs also submitted an affirmation of an unidentified physician who attested to the merit of plaintiffs claims, at least with respect to some of the defendants. In surreply papers, defendants argued that plaintiffs’ belated excuse for the delay was inadequate and they challenged the sufficiency of the affidavit of merit.

In an August 2008 order, Supreme Court denied plaintiffs’ motion to vacate the dismissal of the action. The court noted that it had personally served plaintiffs’ counsel with the demand directing the filing of a note of issue by December 27, 2007 and stating that lack of compliance with the demand would result in dismissal. Applying the CPLR 3216 standard, the court concluded that plaintiffs’ proffered excuse for the default was inadequate because counsel did not specify what steps he took to schedule the depositions of defendants, beyond placing a few telephone calls. “At no time did plaintiff[s’ counsel] sen[d] a letter, make a motion to compel the deposition[s], make a motion to strike defendant’s answer[s] or simply make a motion to extend the time to file the note of issue.” Finally, the court concluded that the affidavit of merit was insufficient to sustain a claim against the two hospitals as it is silent as to any departures from the standard of care attributable to those defendants.

On plaintiffs’ appeal, the Appellate Division affirmed, with two Justices dissenting (71 AD3d 520 [2010]). The majority concluded that Supreme Court had not abused its discretion in finding that plaintiffs failed to meet their CPLR 3216 burden of establishing a justifiable excuse for the failure to timely file a note of issue. The dissent would have reinstated the complaint, but not on the grounds relied on by the majority in this Court. Rather, the Appellate Division dissenters concluded that the discovery delays were attributable to defendants and that plaintiffs established both a justifiable excuse and a meritorious cause of action as required by CPLR 3216. Plaintiffs appeal as of right on the two-Justice dissent.

II.

I believe that the focus in this case should be on CPLR 3216, which governs dismissals arising from the neglect to timely prosecute an action. It provides:

“Where a party unreasonably neglects to proceed generally in an action or otherwise delays in the prosecution thereof against any party who may be hable to a separate judgment, or unreasonably fails to serve and file a note of issue, the court, on its own initiative or upon motion, may dismiss the party’s pleading on terms” (CPLR 3216 [a]).

We have characterized this statute as “extremely forgiving of . . . delay” because subdivision (b) precludes a court from terminating an action unless three preconditions are met: more than one year must have elapsed since joinder of issue; the party must have been served with a written demand to serve and file a note of issue within 90 days; and the party must have failed to meet the deadline in the written demand (see Baczkowski v Collins Constr. Co., 89 NY2d 499, 502-503 [1997]; see also Di Simone v Good Samaritan Hosp., 100 NY2d 632 [2003]). Moreover, if a plaintiff meets the deadline, all prior delay in prosecution is forgiven (see generally CPLR 3216 [c]). On the other hand,

“[i]n the event that the party upon whom is served the demand specified in subdivision (b)(3) of this rule fails to serve and file a note of issue within such ninety day period, the court may take such initiative or grant such motion unless the said party shows justifiable excuse for the delay and a good and meritorious cause of action” (CPLR 3216 [e]).

Although the majority fails to address the plain language of the statute, it is important to note that CPLR 3216 (a) expressly grants a trial court the authority to either sua sponte dismiss the claim or await a motion to dismiss from a defendant (if plaintiff “unreasonably fails to serve and file a note of issue, the court, on its own initiative or upon motion, may dismiss the party’s pleading” [emphasis added]).

Regardless of whether a defendant moves to dismiss in the first instance or the court initiates the dismissal, prompting a motion to vacate, the statutory standard for resolving the application is the same—to avoid dismissal or secure reinstatement of the litigation a plaintiff must show a justifiable excuse for the delay and a meritorious claim. For this reason, although the majority concludes otherwise, it is irrelevant that the court initially sua sponte dismissed the complaint rather than waiting for one of the defendants to make a motion to dismiss on notice. The parties addressed the same issues—raising the same factual and legal arguments—in the motion to vacate the dismissal as would have been raised in a motion to dismiss. In reinstating the complaint on a procedural basis not advanced by plaintiffs, the majority fails to explain why it ignores the substantial motion practice in Supreme Court in which the parties litigated whether plaintiffs met the CPLR 3216 standard for excusing their default. I can only assume that the majority has charted this course instead of addressing the CPLR 3216 arguments actually raised by the parties because plaintiffs in fact failed to meet the statutory standard, as both Supreme Court and the Appellate Division concluded.

That conclusion is supported by our precedent. We have considered the propriety of CPLR 3216 dismissals on at least two occasions, in Baczkowski and Di Simone. In the former, it was defendant that filed the 90-day demand for the filing of a note of issue (not the court, as occurred in this case). In response to defendant’s subsequent motion to dismiss made after plaintiff missed the deadline, the plaintiff proffered two excuses for the delay: that “uncertainty over pending third-party discovery excused the delay” and that a secretary from the law firm representing plaintiff had attempted to file a note of issue after the deadline passed but was not permitted to do so (89 NY2d at 504). We determined that both were inadequate because plaintiff failed to demonstrate an appropriate and timely effort to comply with the 90-day demand. We were troubled by the fact that plaintiff not only defaulted on the obligation to file the note of issue but had also neglected to “take any other step indicating an intention to resume prosecution of the action, such as moving to vacate the 90-day demand or seeking an extension of time within which to file a note of issue” (id. at 503-504). We therefore held that Supreme Court had abused its discretion in denying defendant’s motion to dismiss but the Appellate Division had rectified that error by reversing Supreme Court’s order and dismissing plaintiff’s claim. In contrast, in Di Simone, because plaintiff had established a meritorious claim and demonstrated that the failure to comply with a 90-day demand was excusable as it was a consequence of her attorney’s disbarment and the resulting lapse of representation during the relevant time period, we held that the Appellate Division abused its discretion in dismissing the cause of action.

Our analysis in prior CPLR 3216 cases is consistent with the approach this Court has repeatedly taken over the past decade in comparable circumstances. Until today, in decision after decision, we have held that dilatory actions by attorneys that unjustifiably delay the course of litigation—including delays in conducting discovery, delays in filing summary judgment motions or delays in proceeding to trial through the filing of a note of issue—cannot be overlooked (see e.g. Gibbs v St. Barnabas Hosp., 16 NY3d 74 [2010]; Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725 [2004]; Brill v City of New York, 2 NY3d 648 [2004]; Kihl v Pfeffer, 94 NY2d 118 [1999]). In an effort to encourage fairness and appropriate professional practice standards, we have emphasized that

“our court system is dependent on all parties engaged in litigation abiding by the rules of proper practice . . . The failure to comply with deadlines not only impairs the efficient functioning of the courts and the adjudication of claims, but it places jurists unnecessarily in the position of having to order enforcement remedies to respond to the delinquent conduct of members of the bar, often to the detriment of the litigants they represent. Chronic noncompliance with deadlines breeds disrespect for the dictates of the Civil Practice Law and Rules and a culture in which cases can linger for years without resolution . . . For these reasons, it is important to adhere to the position we declared a decade ago that if the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity” (Gibbs, 16 NY3d at 81 [internal quotation marks, brackets and citations omitted]).

In applying the rules set by the Legislature in the CPLR, we have never suggested that we do not appreciate the difficulties and practice pressures experienced by members of the trial bar. Certainly, the time and effort needed to identify and secure appropriate expert witnesses, along with other relevant evidence, prior to conducting depositions or complying with other discovery demands may, in some circumstances, result in

considerable delays, even when there have been diligent attempts to comply with discovery orders. But based on our precedent it is evident that, rather than merely ignoring court-ordered deadlines, the proper recourse—both to fulfill the professional obligations owed the client and in respect for the courts—is to timely ask for an extension from one’s adversary, move to compel discovery from a recalcitrant party, request a preclusion order or otherwise seek judicial assistance in resolving discovery disputes. In light of the various informal and statutory options available to counsel to address legitimate delays, extensive periods of inactivity that result in the violation of court orders should not be lightly condoned, particularly where trial judges have made repeated attempts to spur the parties to complete discovery as occurred here.

After all, litigation is an uncertain business for both plaintiffs and defendants and neither side benefits when disputes are unnecessarily protracted. Plaintiffs are entitled to prompt resolution of their claims—they have a legitimate need to know whether they have a viable cause of action and, if so, to secure adequate compensation for their injuries within reasonable time constraints. This is especially true in cases that involve seriously injured plaintiffs who may be unable to work and may suffer physical and financial hardship while their lawsuits are pending. Similarly, defendants are anxious to learn whether they will be held responsible for the claims made against them and, if so, the extent of the judgment that will be imposed.

Litigants therefore desire and deserve a court system that administers justice in a fair, respectful and reasonably efficient manner. It is this policy that the Legislature has endeavored to advance by fashioning rules governing the progress of litigation, such as the procedure in CPLR 3216 for enforcement of a 90-day demand for filing of a note of issue. And, in my view, it is the role of the courts to ensure that all parties comply with the relevant statutory directives. Because I believe that these principles should inform the resolution of this case, I turn to the traditional analysis we have applied in CPLR 3216 dismissal cases.

III.

Under CPLR 3216, the issue for resolution is whether, as a matter of law, the courts below erred in concluding that plaintiffs failed to establish a justifiable excuse for the default in filing the note of issue. In their motion to vacate the dismissal of the complaint, plaintiffs initially took the position that they had no obligation to offer either a reasonable explanation for their undisputed lack of compliance with the 90-day demand or to supply any materials establishing a bona fide claim. However, this assertion is inconsistent with CPLR 3216, which permits a court to dismiss the claim based on a failure to meet the note of issue deadline unless plaintiff meets the two-part test thereby excusing that default (see CPLR 3216 [e]). To be sure, even when a plaintiff proffers an inadequate excuse or insufficient affidavit of merit, the court continues to possess some discretion to decline to dismiss the claim. But the fact that a court is not compelled to terminate the action does not absolve a plaintiff of the need to address the statutory standards.

Here, read in their entirety, the papers submitted in support of plaintiffs’ vacatur motion suggest two excuses for the delay: a claim that defendants thwarted plaintiffs’ efforts to complete the depositions directed in the scheduling order and an allegation that plaintiffs’ lawyers had adequately fulfilled their obligations in relation to the depositions since an unnamed clerk at the law firm representing Dr. Facelle had been telephoned several times in an effort to schedule the physician’s deposition. Based on the record, I cannot say, as a matter of law, that the courts below erred in finding these excuses to be insufficient to justify vacatur of the dismissal.

No doubt, the court’s May 2007 conference—resulting in the fifth scheduling order issued in relation to these medical malpractice claims—was intended to light a fire under all of the parties’ representatives, both plaintiffs’ counsel and the four law firms appearing for defendants. None of the parties involved in this case is deserving of praise—the record indicates that both sides were less than expeditious in responding to earlier discovery orders. But the court dismissed the claim based on plaintiffs’ failure to file a note of issue within the time frame directed in the “so ordered” stipulation and demand. The stipulation mandated that the depositions be conducted “on or before” specified dates. Thus, the stipulation contained deadlines—it did not actually set forth the time, place or location of any particular deposition. As the party that sought to conduct the depositions, the onus was necessarily on plaintiffs to arrange the dates certain for the examinations before trial, a process that entailed selecting a time and location, notifying the affected parties and securing the services of a stenographer. Plaintiffs’ attorneys could have set a date for the depositions by any one of several means: by letter, telephone call or pursuant to CPLR 3107, which permits a party to serve a notice “to take the deposition of any person upon oral examination” on 20 days notice “in writing, stating the time and place for taking the deposition.” If one of these procedures failed to secure results, they were required to try another—or seek further assistance from the court.

The only record evidence of any attempt made by plaintiffs’ counsel to actually schedule the depositions during the relevant time period were statements that one lawyer “placed numerous phone calls to the deposition clerk” at the law firm representing Dr. Facelle and was told that his calls would be returned. But Supreme Court did not abuse its discretion in concluding that these purported efforts were insufficient to justify plaintiffs’ failure to timely schedule and conduct Dr. Facelle’s deposition— much less the depositions of the remaining defendants, who were each separately represented. On this record, plaintiffs’ failure to complete discovery cannot fairly be attributed to defendants, who apparently waited for plaintiffs to take further measures consistent with the scheduling order. Even if plaintiffs’ conclusory claim that defendants thwarted their discovery efforts and failed to schedule plaintiffs’ medical examinations is credited, this would not warrant vacating plaintiffs’ default because the CPLR provided plaintiffs with other means for redress, including moving to compel disclosure pursuant to CPLR 3124 or moving to strike defendants’ answers pursuant to CPLR 3126 (3) or CPLR 2004.

Furthermore, plaintiffs’ action was not dismissed because they failed to conduct depositions—the dismissal was a consequence of plaintiffs’ default in filing a note of issue. Again, if plaintiffs could not meet the deadline set by the court, they should have taken appropriate steps prior to the due date such as moving for permission to serve and file a conditional note of issue (noting the outstanding discovery) or moving for an extension of time to file the note of issue. Certainly, it’s not unusual that, despite diligent efforts, an attorney is unable to comply with a court order or meet a statutory deadline. When this occurs, it is imperative that relief be sought from the court before the default occurs. Plaintiffs failed to do so in this case, providing ample basis in the record for the conclusion reached by the courts below that there was no adequate justification for allowing the note of issue deadline to pass without making reasonable efforts to comply with the court’s mandate, especially given the history of this litigation in which the parties had permitted four prior scheduling orders to expire without undertaking discovery.

Because I discern no abuse of discretion in the determination of the courts below that plaintiffs failed to establish a justifiable excuse for noncompliance with the “so ordered” stipulation and court-issued demand, there would be no basis to disturb the order denying vacatur of the dismissal even if the affidavit of merit had been sufficient as to all party defendants. Therefore, a discussion of the second requirement of the CPLR 3216 standard is unnecessary to my analysis.

Finally, the Court is apparently unanimous in its conclusion that we may not entertain plaintiffs’ argument that Supreme Court’s order denying the motion to vacate was erroneous due to the court’s failure to apply a new standard imposed in a July 2008 amendment to CPLR 205 (a)—a statute that addresses when a plaintiff may recommence an action that has been dismissed on a basis unrelated to the merits. The majority notes that this new provision is inapplicable to this case and I agree. Even crediting the assertion that the new CPLR 205 (a) language applies when there has been no attempt to recommence an action following dismissal (as is the case here), the amendment did not become effective until seven months after Supreme Court dismissed plaintiffs’ claim. Moreover, the CPLR 205 (a) argument is not preserved for our review because it was not raised in the motion to vacate the dismissal.

None of us likes to see a case dismissed as a result of a procedural default—we all would prefer to have personal injury actions resolved on the merits. However, there are times when the public policy favoring the resolution of tort claims on the merits must yield to equally important though countervailing concerns—such as the proper enforcement of statutory mandates and court orders. In my view, this is such a case. By consistently applying CPLR mandates, courts encourage a culture of compliance regarding the rules of procedure and an appropriate respect for the integrity of the judicial system—a result that inures to the greater good of all who participate in the litigation process. Because the court steps away from the important policy considerations embodied in the governing statute—CPLR 3216—I feel compelled to dissent.

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

Order, insofar as appealed from, reversed, etc.

      . The bracketed portion represents the trial court’s handwriting.

      . The Legislature enacted this amendment to remedy a “persistent problem within our courts regarding dismissal for neglect to prosecute,” noting that “[t]he intent of CPLR §205(a) has been misconstrued allowing for many cases to be dismissed” on the ground because the law had been “unclear with respect to what specifically constitute[d] a neglect to prosecute” (Assembly Mem in Support, Bill Jacket, L 2008, ch 156, at 6).

      . The majority presumes that the complaint was dismissed by a clerk without any participation from the court. But this assumption finds no support in the record. Because plaintiffs never argued that the court lacked the authority to sua sponte dismiss the complaint as a consequence of the default in filing a note of issue, the circumstances surrounding the so-called “ministerial” dismissal of the complaint were never developed. In fact, in plaintiffs’ motion to vacate the dismissal, plaintiffs’ attorneys represented that “the Court, on its own accord, disposed” of the case.

      . Plaintiffs moved for renewal and reargument but that motion was denied. Because plaintiffs’ appeal from the renewal/reargument order was dismissed by this Court, any reference to the facts asserted and legal arguments made in that motion have been stricken from the record and from plaintiffs’ briefs in this Court.

      . The statute directs that the 90-day demand may be served by “[t]he court or party seeking such relief,” as long as the demand warns that the failure to timely file the note of issue pursuant to the demand may serve as a basis to dismiss the action (CPLR 3216 [b] [3]). That requirement was met here.

      . In Gibbs (16 NY3d 74 [2010]), where plaintiffs counsel violated a conditional preclusion order by failing to supply a bill of particulars and did not establish good cause for the delay and a meritorious claim, we held that the trial court abused its discretion in failing to order preclusion. In Miceli (3 NY3d 725 [2004]), where the moving party’s attorney failed to file a summary judgment motion within 120 days of the filing of a note of issue and did not demonstrate good cause for the delay, Supreme Court erred in granting summary judgment to the movant (see also Brill, 2 NY3d 648 [2004] [same; clarifying that good cause means a reasonable excuse for the delay in making the motion]). And in Kihl (94 NY2d 118 [1999]), where the law firm representing plaintiff failed to adequately respond to discovery demands, disregarding a time limit in a conditional dismissal order, we held that the trial court properly granted defendant’s motion to dismiss the complaint.

      . As discussed by the Appellate Division dissenters, plaintiffs proffered a third excuse—law office failure—in their motion for renewal/reargument (see 71 AD3d at 523). I have not considered this belated argument because the renewal/reargument order is not before this Court for review and we have stricken all papers relating to that motion from the briefs and record on appeal.

      . Although plaintiffs assert that defendants violated the scheduling order when they failed to produce their clients on the deadlines in the court order, the record indicates that plaintiffs did not set specific dates, times or locations for the oral examinations. Under the circumstances, defendants could not have been expected to appear with their clients (indeed, the hospital witnesses had not been identified)—nor do plaintiffs indicate that they were waiting at a designated place with a stenographer on any particular day or time, ready, willing and able to conduct the depositions.


author: Chief Judge Lippman.

text:
    [961 NE2d 1111, 938 NYS2d 500]
    The People of the State of New York, Respondent, v Joseph Hightower, Appellant.
    Argued November 14, 2011;
    decided December 13, 2011

      POINTS OF COUNSEL

      Legal Aid Society, New York City (Adrienne Hale and Steven Banks of counsel), for appellant.
    The accusatory instrument was jurisdictionally defective, as its allegations—that appellant used an unlimited MetroCard to swipe a person into the subway system in exchange for money—failed to provide reasonable cause to believe that appellant committed the crime of petit larceny, because there was no taking of “property” from an “owner” thereof as proscribed by the larceny statutes. (People v Dreyden, 15 NY3d 100; People v Kalin, 12 NY3d 225; People v Dumas, 68 NY2d 729; People v Maldonado, 86 NY2d 631; People v Jones, 9 NY3d 259; People v Alejandro, 70 NY2d 133; People v Hall, 48 NY2d 927; People v Case, 42 NY2d 98; People v Scott, 3 NY2d 148; People v Zinke, 76 NY2d 8.)

      Cyrus R. Vance, Jr., District Attorney, New York City (John B.F. Martin and Patricia Curran of counsel), for respondent.
    The misdemeanor complaint set forth reasonable cause to believe that defendant committed the crime of petit larceny. In any event, defendant waived his appellate challenge to the sufficiency of the complaint by pleading guilty and, thus, has forfeited his right to appellate review. (People v Kalin, 12 NY3d 225; People v Alejandro, 70 NY2d 133; People v Weinberg, 34 NY2d 429; People v Connor, 63 NY2d 11; People v Dreyden, 15 NY3d 100; People v Fernandez, 67 NY2d 686; People v Konieczny, 2 NY3d 569; People v Keizer, 100 NY2d 114; People v Hansen, 95 NY2d 227; People v McDermott, 69 NY2d 889.)
   OPINION OF THE COURT

Chief Judge Lippman.

This appeal presents the interesting issue of whether defendant’s swipe of an unlimited MetroCard in return for a fee, although decidedly criminal in nature, constituted larceny. We hold that it did not.

The question before the Court, as to the consequences of unauthorized uses of an otherwise valid MetroCard, is not academic. Last year, subway ridership in New York City topped 1.6 billion, making the City’s system, consisting of 468 stations, the fourth busiest in the world. Since its introduction in 1998, the unlimited MetroCard has become a popular option among riders, with the 30-day unlimited card alone accounting for nearly one third of the 29 million weekly swipes (see Albert Sun, How MetroCard Swipes Reveal a Changing City, Wall St J, http:// blogs.wsj.com/metropolis/2011/10/20/how-metrocard-swipesreveal-a-changing-city [Oct. 20, 2011]).

On February 15, 2009, a police officer observed defendant swiping an unlimited MetroCard through a turnstile in a Midtown Manhattan New York City Transit Authority (NYCTA or the Authority) subway station, but instead of proceeding to the platform himself, allowing another person to gain access to the subway platform, and accepting an unknown amount of money in exchange. As a result of this transaction, defendant was convicted of petit larceny.

There are several types of MetroCards, including pay-per-ride cards and unlimited cards. An unlimited MetroCard is a fare card that grants unlimited access to subways and buses within the NYCTA system for a set price and it remains valid for a specified period of time (e.g., 30 days or seven days), with the restriction that a user must wait 18 minutes between swipes at the same station or on the same bus route. Unlimited MetroCards are transferable, but the person lending or giving the card away is not permitted to accept money in exchange. A MetroCard can be swiped through an electronic reader in a subway station in order to determine the amount of money left on the card (in the case of a pay-per-ride card) or the expiration date (in the case of an unlimited card).

A misdemeanor information was issued and it described the events giving rise to the charges, including the officer deponent’s observations at the time of the incident:

“[D]eponent observed the defendant receive money from one individual in exchange for which deponent observed the defendant immediately thereafter swipe an unlimited ride MetroCard through the turnstile in order to allow said individual to enter the subway station beyond the turnstiles without permission or authority to do so . . .
“[Defendant did not enter the subway station beyond the turnstiles . . . [D]eponent recovered said unlimited ride MetroCard from defendant. . . [and] determined this card was an unlimited ride Metro-Card by swiping it through a[n] [NYCTA] Metro-Card reader.”

Defendant was charged with one count of petit larceny (pursuant to Penal Law § 155.25), one count of unauthorized sale of certain transportation services (pursuant to Penal Law § 165.16 [l]), and one count of illegal access to Transit

Authority services (pursuant to 21 NYCRR 1050.4). Defendant entered a plea of guilty to petit larceny in satisfaction of all of the charges and was convicted of that crime. The Appellate Term affirmed the judgment of conviction (28 Misc 3d 131 [A], 2010 NY Slip Op 51269[U] [App Term, 1st Dept 2010]). A Judge of this Court granted defendant leave to appeal (15 NY3d 953 [2010]). We now reverse and, since defendant has already served his sentence, dismiss the accusatory instrument.

The factual portion of a misdemeanor information charging multiple counts shall “consist of a single factual account applicable to all the counts of the accusatory part” and

“[t]he factual allegations may be based either upon personal knowledge of the complainant or upon information and belief . . . [and] in order for an information or a count thereof to be sufficient on its face, every element of the offense charged and the defendant’s commission thereof must be supported by non-hearsay allegations of such information and/or any supporting depositions” (CPL 100.15 [3]).
“A misdemeanor complaint or a felony complaint, or a count thereof, is sufficient on its face when . . .
“[i]t substantially conforms to the requirements prescribed in section 100.15; and “[t]he allegations of the factual part of such accusatory instrument and/or any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of such instrument” (CPL 100.40 [4] [a], [b]).

A person is guilty of larceny when, “with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof” (Penal Law § 155.05 [1]) and “[a] person is guilty of petit larceny when he steals property” (Penal Law § 155.25). Property is “any money, personal property, real property, computer data, computer program, thing in action, evidence of debt or contract, or any article, substance or thing of value, including any gas, steam, water or electricity, which is provided for a charge or compensation” and an owner is “any person who has a right to possession thereof superior to that of the taker, obtainer or withholder” (Penal Law § 155.00 [13, [5]).

As is relevant to the facts of the instant case, the misdemeanor information must provide reasonable cause to believe that when defendant, in exchange for money,, swiped an unlimited MetroCard thereby allowing an unidentified person to pass through a subway turnstile, he took property belonging to the NYCTA. In People v Dreyden (15 NY3d 100, 103 [2010]), we recognized two broad categories of defects to be used as guideposts in determining whether an accusatory instrument is jurisdictionally flawed: “[t]he distinction between jurisdictional and nonjurisdictional defects ‘is between defects implicating the integrity of the process . . . and less fundamental flaws, such as evidentiary or technical matters’ ” (quoting People v Hansen, 95 NY2d 227, 231 [2000]) and we find that the violation of the reasonable cause requirement (as set forth in CPL 100.40 [4] [b]) here falls into the first category.

In order for the reasonable cause standard to be met, the factual portion of the accusatory instrument must describe conduct that constitutes the crime charged. Although the information in this case described the events with enough clarity to provide reasonable cause that defendant was engaged in the unlawful sale of NYCTA services and providing unlawful access to NYCTA services, we hold that it was jurisdictionally defective as to the crime of which defendant was actually convicted— petit larceny.

The Authority was not deprived of the unknown amount of money that defendant accepted from the subway rider because it never owned those funds. In People v Nappo (94 NY2d 564 [2000]), we held that the State was not the “owner” of uncollected taxes within the meaning of the statutory definition of the term because “taxes due were not the property of the State prior to their remittance” (id. at 566). Here, the unknown amount of money paid to defendant could have been due and owing to the NYCTA, but as was the case in Nappo, the NYCTA never acquired a sufficient interest in the money to become an “owner” within the meaning of Penal Law § 155.00 (5). In Nappo, we recognized that once a trustee has collected the funds, then they can be said to be the property of the ultimate recipient: “the State may be deemed the ‘owner’ of ‘collected’ but unremitted sales taxes” (id. at 567). Here, as in Nappo, “defendant[ ] w[as] not in possession, by trust or otherwise, of monies owned by the [NYCTA]” (id.).

The People argue that defendant deprived the NYCTA of a portion of its business and therefore he is guilty of petit larceny. We have held that taking away a portion of a person or entity’s business through extortion constitutes larceny (see People v Spatarella, 34 NY2d 157, 162 [1974]). However, we decline to extend that reasoning to these facts because here we must assume that the NYCTA voluntarily transferred this valid Metro-Card in a manner consistent with its ordinary course of business by selling the card and receiving the price it set. By contrast, in Spatarella, the victim was compelled to give up a business customer (who, unlike the uncollected taxes in Nappo, was already within his “control” and “possession”) to one of the defendants when that defendant threatened the victim with physical injury.

Accordingly, there is no basis upon which the petit larceny charge in the accusatory instrument can be upheld. Defendant was not prosecuted under the general theft of services statute (Penal Law § 165.15 [3]), a class A misdemeanor, and we do not address its applicability to the facts of this case (see Penal Law § 20.10).

The order of the Appellate Term should be reversed and the accusatory instrument dismissed.

Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.

Order reversed, etc.

      . The NYCTA is also known as the MTA New York City Transit.

      . It is illegal for a person who is not authorized by the NYCTA to sell access to its services to do so (see Penal Law § 165.16 [1]; 21 NYCRR 1050.4).

      . “A person is guilty of unauthorized sale of certain transportation services when, with intent to avoid payment by another person to the metropolitan transportation authority, New York city transit authority or a subsidiary or affiliate of either such authority of the lawful charge for transportation services on a railroad, subway, bus or mass transit service operated by either such authority or a subsidiary or affiliate thereof, he or she, in exchange for value, sells access to such transportation services to such person, without authorization, through the use of an unlimited farecard or doctored farecard. This section shall apply only to such sales that occur in a transportation facility, as such term is defined in subdivision two of section 240.00 of this chapter, operated by such metropolitan transportation authority, New York city transit authority or subsidiary or affiliate of such authority, when public notice of the prohibitions of its section and the exemptions thereto appears on the face of the farecard or is conspicuously posted in transportation facilities operated by such metropolitan transportation authority New York city transit authority or such subsidiary or affiliate of such authority” (Penal Law § 165.16 [1]).

      . 21 NYCRR 1050.4 (c) provides that,
      “[e]xcept for employees of the authority acting within the scope of their employment or other expressly authorized agents of the authority, no person shall sell, provide, copy, reproduce or produce, or create any version of any fare media or otherwise authorize access to or use of the facilities, conveyances or services of the authority without the written permission of a representative of the authority duly authorized by the authority to grant such right to others.”

      .  Although defendant waived his right to be prosecuted by a misdemeanor information, he may nevertheless challenge the validity of the accusatory instrument on jurisdictional grounds because “[a] valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution” (People v Case, 42 NY2d 98, 99 [1977] [emphasis added]).

      . The record does not indicate the amount of money paid to defendant.