text:
    [857 NE2d 517, 824 NYS2d 196]
    Lake George Associates, Appellant, v State of New York, Respondent.
    (Claim No. 104481.)
    Argued September 7, 2006;
    decided October 19, 2006

      POINTS OF COUNSEL

      Bond, Schoeneck & King, PLLC, Albany (Stuart F Klein of counsel), for appellant.
    I. The permanent driveway easements applied by the State of New York abutting the White and Tatko parcels did not provide the subject property with cross-vehicular access to those neighboring lands and/or legal access to and from Routes 9 and 149. (Pollak v State of New York, 41 NY2d 909; Priestly v State of New York, 23 NY2d 152; Segar v State of New York, 111 Misc 2d 1034; Orchard Grove of Dutchess v State of New York, 1 Misc 3d 810; Matter of City of Syracuse Indus. Dev. Agency, 5 AD3d 1114; Matter of Albany County Airport Auth. [Buhrmaster], 265 AD2d 720, 94 NY2d 758; Fitch v State of New York, 27 Misc 2d 108; Kravec v State of New York, 40 NY2d 1060; Modica v Incorporated Vil. of Saltaire, 202 AD2d 376; Zeh v Karker, 43 AD2d 881.) II. The doctrine of substitute condemnation is inapplicable in the instant action because substitute condemnation only applies to parcels which have been left without any access and landlocked by an appropriation. (Van Valkenburgh v State of New York, 131 AD2d 903; KJC Realty v State of New York, 69 Misc 2d 99, 32 NY2d 664; Carillion Realty Corp. v State of New York, 158 Misc 2d 810, 212 AD2d 660; Wilson v Ford, 209 NY 186.) III. Should the Court find that the subject property does not have legal access to Routes 9 and 149 as a result of the appropriation, the matter should be remitted to the Appellate Division for a finding of consequential damages. (Campbell v State of New York, 39 AD2d 615, 32 NY2d 952; Matter of Saratoga Harness Racing v Williams, 91 NY2d 639; W.T. Grant Co. v Srogi, 52 NY2d 496; Matter of County of Schenectady [Pahl], 194 AD2d 1004.)

      Eliot Spitzer, Attorney General, Albany (Michael S. Buskus, Caitlin J. Halligan, Daniel Smirlock and Peter H. Schiff of counsel), for respondent.
    I. Permanent easements, appropriated by the State of New York from claimant and its neighbors, assured “legal access” via the driveways constructed over those easements. (Van Valkenburgh v State of New York, 131 AD2d 903; National Biscuit Co. v State of New York, 14 AD2d 729, 11 NY2d 743; Raj v State of New York, 124 AD2d 426; Ross v State of New York, 30 AD2d 681, 23 NY2d 807; Rider v State of New York, 192 AD2d 983; Gengarelly v Glen Cove Urban Renewal Agency, 69 AD2d 524; Gilmore v State of New York, 208 Misc 427; Hatfield v Straus, 189 NY 208; People ex rel. Ackerman v Stover, 138 App Div 237; Greeley Sightseeing Co. v Riegelmann, 119 Misc 84.) II. The takings in this case provided claimant with suitable access to the highway. (Dohany v Rogers, 281 US 362; Brown v United States, 263 US 78; Cuglar v Power Auth. of State of N.Y., 4 Misc 2d 879, 4 AD2d 801, 3 NY2d 1006; Ross v State of New York, 30 AD2d 681, 23 NY2d 807; KJC Realty v State of New York, 69 Misc 2d 99, 32 NY2d 664; Tobin Packing Co. v People, 42 AD2d 82; Van Valkenburgh v State of New York, 131 AD2d 903; Wolfe v State of New York, 22 NY2d 292; Pollak v State of New York, 50 AD2d 201, 41 NY2d 909; Windham v State of New York, 34 AD2d 590, 27 NY2d 481.)
   OPINION OF THE COURT

ClPARICK, J.

We are asked to determine whether the State, in its appropriation of claimant’s and its neighbors’ land for the purpose of improving an abutting highway and reestablishing access pursuant to Highway Law § 10 (24-d), deprived claimant of a legal right of access to the public roads. We hold that the appropriation of land, under these circumstances, creates a legal, enforceable right of access to the driveways and turning lanes on the neighboring properties and to the public road, and thus that consequential damages are not warranted.

Lake George Associates (claimant) owns a shopping plaza on the southeast corner of US Route 9 and State Route 149 in the Town of Queensbury, Warren County. The property has a one-story commercial building that rents space to three outlet clothing stores and a pizzeria. Adjacent to claimant’s property is a lot owned by nonparty David White to the south and a lot owned by nonparty Michael Tatko to the east. Prior to July 13, 1998, claimant’s property had two 50-foot curb cuts that provided access to and from each respective highway. However, as part of a highway improvement project to create turning lanes and improve safety, the State appropriated land from claimant and its neighbors, White and Tatko.

On July 13, 1998, the State obtained a fee interest in the frontage strip of claimant’s land, as indicated by Map No. 212, Parcel No. 268, filed with the County Clerk, so that it could install turning lanes on both Routes 9 and 149 as well as construct a new sidewalk abutting the highways. The State also obtained permanent easements over claimant’s land and that of its neighbors, Tatko and White.

The two permanent easements over claimant’s property were filed under Map No. 212, Parcels Nos. 269 and 270, with the Warren County Clerk’s office. The easements read as follows:

“A PERMANENT EASEMENT FOR DRIVEWAY
“A permanent easement to be exercised in, on, and over the property above delineated and hereinafter described for the purpose of constructing thereon a driveway and appurtenances over and across all those pieces or parcels of property hereinafter designated as Parcel Nos. 269 and 270, situate in the Town of Queensbury ... as shown on the accompanying map.”

The document further gives a description of the land and is followed by a reservation clause which states:

“Reserving, however to the fee owner of the property described in Parcel Nos. 269 & 270 above, and such owner’s successors or assigns, the right of using the said property, for the same purpose of access to a public road, and to construct, reconstruct, and maintain a driveway and appurtenances thereon.”

Similar appropriations of land took place on the adjacent properties owned by White (Map No. 211, Parcel No. 267) to the south and Tatko (Map No. 33, Parcel No. 44) to the east. The White and Tatko easements were effectively drafted in the same manner and make no explicit declaration granting the landowners the right to cross the State’s easements on the neighbor’s lands. However, each easement does make reference to Highway Law § 10 as a basis for its authority, stating that:

“[T]he Commissioner of Transportation deems [each of the subject parcels] necessary to be acquired by appropriation in the name of the People of the State of New York for purposes connected with the highway system of the State of New York pursuant to Sections 10 & 30 of the Highway Law and Eminent Domain Procedure Law.”

As part of the highway improvement project and pursuant to the language of the easements and takings maps filed, the State installed turning lanes to and from the respective highways to reduce traffic backups and improve overall safety, and created sidewalks abutting the highway. As a result, claimant’s curb cut giving access to and from Route 9 was decreased to 24 feet in length. The 50-foot curb cut along Route 149 was removed in its entirety. Instead, the State reestablished access along each highway by providing for shared driveways lying entirely on the respective easements along the southerly and easterly borders of claimant’s property. Under the new routes of access — the new driveways — direct access exists on claimant’s property so one can exit directly onto Route 9 north solely from claimant’s property. However, in order to enter from Route 9 or exit onto Route 9 south, one must cross over the easement on White’s property. There is also direct access to claimant’s property from Route 149 but one can only exit onto Route 149 by traversing the easement on Tatko’s land.

Claimant commenced this eminent domain proceeding seeking damages stemming from the condemnation of its land by the State. After trial, the Court of Claims found that there had been no diminution in the “highest and best use” of the land as commercial strip-plaza property; the court awarded claimant $98,786.63 as direct compensation for the appropriation of its land but denied claimant its request for consequential damages. Claimant appealed the ruling to the extent Court of Claims held that there was no basis to compute consequential damages. The Appellate Division affirmed, holding that the permanent easements in favor of the State over the neighboring properties provided legal access to claimant “regardless of whether defendant deeds that right-of-way to the condemnee” (23 AD3d 737, 738 [3d Dept 2005]). We granted leave and now affirm.

The lower courts both found the subject access to be suitable; suitability is ordinarily a factual determination not reviewable by this Court. However, the Appellate Division’s finding of suitability rests on its conclusion that automobiles could enter and leave claimant’s property by means of the easements that the State acquired from Tatko and White. Claimant maintains that the State has failed to give it an enforceable legal right in these easements. Thus, claimant says that it does not have legal access to its premises, and that this undermines its marketable title by diminishing the value of its premium corner location and by creating uncertainty. Thus claimant posits that it is entitled to consequential damages in addition to the direct damages assessed by the Court of Claims. We disagree.

Property owners are entitled to consequential damages when the State’s appropriation of their property results in “the loss of their right to enter and exit their property” (Pollak v State of New York, 41 NY2d 909, 910 [1977]; see also Priestly v State of New York, 23 NY2d 152 [1968]). Poliak makes clear that damages must be paid unless the condemnee retains “legal access”— i.e. a legally enforceable right to entry and exit. Damages are to be quantified based on a calculation of the damages at the time of the taking with no effect given to subsequent efforts to reestablish access (see Wolfe v State of New York, 22 NY2d 292, 295 [1968]; Kravec v State of New York, 40 NY2d 1060, 1062 [1976]). This principle serves as strong incentive for the government to plan carefully and take only what is necessary or otherwise be subject to consequential damages (see Wolfe, 22 NY2d at 295-296).

Although legal access is required and damages are to be fixed at the point of the taking, legal access may sometimes exist without a formal deed or conveyance to the claimant. While an explicit conveyance of access rights is generally preferable, the failure to do so does not negate the existence of such a legal right of access. As noted in Van Valkenburgh v State of New York (131 AD2d 903, 905 [3d Dept 1987]), Highway Law § 10 (24-d) “does not require a conveyance in order to provide legal access to claimants’ property.” Furthermore, access is available as a matter of law to abutting landowners, subject only to reasonable police power limitations (see e.g. Cities Serv. Oil Co. v City of New York, 5 NY2d 110, 115 [1958] [the City’s establishment of a bus stop which interfered with, but did not preclude access to claimant’s gas station, was permissible under the municipality’s police powers to regulate and control traffic and public transport]).

We thus look to July 13, 1998 — the date of the appropriation — to determine whether claimant was left without legal access to its property. On that date, besides appropriating claimant’s land and acquiring a permanent easement over its property for purposes of the highway project, the State acquired permanent easements on the adjoining Tatko and White properties as well. The easements reserved to the owner of each respective property the “right of using the said property, for the same purpose of access to a public road, and to construct, reconstruct, and maintain a driveway and appurtenances thereon.” Reading the easements, with any ambiguity construed strictly against the State, each owner was granted use of, as well as the duty to maintain, the respective portions of the driveway, while no explicit right was conveyed to access portions of the driveway on the neighboring lands (see Clark v State of New York, 15 NY2d 990, 992 [1965] [holding that easements are to be strictly construed against the State]). Claimant asks that we end our analysis at this point and hold that absent an express conveyance of cross-vehicular access, it is entitled to consequential damages. The inquiry, however, cannot end here.

Although the easements on their face fail to explicitly convey to claimant specific cross-vehicular access rights, implicit legal right of access is enough. Here, the State argues that claimant’s legal right of access is assured by Highway Law § 10 (24-d), which provides that the Commissioner of Transportation shall have power:

“whenever [the] commissioner . . . deems it is necessary as a result of work of construction, reconstruction or maintenance of state highways, to provide for the re-establishment of private access to a public road where such access is destroyed by acquisition of right of way for the project. If such re-establishment of private access requires additional property or if it is necessary that such reestablishment of private access be made to other property, he may acquire such property as may be necessary for the purposes of this subdivision, in the same manner as other property is acquired for state highway purposes pursuant to this chapter, and he may enter into a written agreement with the owner of such private access to convey such property as deemed necessary for the purposes of this subdivision to such owner on terms beneficial to the state.”

The State contends that this section gives the Commissioner of Transportation the power to obtain land for reestablishment of access to public roads in situations such as this where highway construction resulted in a derogation of access.

Highway Law § 10 (24-d) vests the Commissioner of Transportation with significant authority to act in the interests of the People of the State of New York in constructing and improving highways with the power to reestablish access over neighboring parcels to avoid completely or partially landlocking property. The enactment of this statute was not without debate; however, the ultimate decision of the Legislature was that such a concession of power was in the best interest of the State and its constituents (see Senate Introducer Mem in Support, Bill Jacket, L 1967, ch 193 [“it is highly desirable for the Superintendent of Public Works to have the power to acquire substitute property for the purpose of re-establishing access to a public road and thus reduce property damage,” thus codifying the common-law doctrine of substitute condemnation]). We see no reason to retreat from the intent of the Legislature.

In support of its claim for consequential damages, claimant relies on Pollak v State of New York, where we held that the State’s appropriation of land from a property owner was compensable with consequential damages (see 41 NY2d at 910). In Poliak, the State had acquired land under the Grade Crossing Elimination Act (L 1928, ch 678 [now Transportation Law art 10]) in an effort to eradicate the grade intersection of the Long Island Rail Road tracks. As a result of the appropriation, Poliak both lost his ability to conduct business under its prior use as a fertilizer plant and was deprived of legal access to the public road. In that case, the State argued that damages were improper since it had provided an access road for claimant’s use — a county road acquired by the State three years after the subject appropriation. This Court held, in affirming that consequential damages were appropriate, that there was no enforceable right for claimant to use the access road, nor was the State obliged to maintain the road. As noted by the Appellate Division in Poliak, “[u]nlike what is permitted where land is acquired for State highway purposes (cf. Highway Law, § 10, subd. 24-d), the Grade Crossing Elimination Act contains no specific authorization for the re-establishment of private access to a public road” (50 AD2d 201, 205 [3d Dept 1975]).

Whereas claimant correctly relies upon Poliak for the proposition that failure to provide enforceable legal access in conjunction with the appropriation of land renders the State liable for consequential damages, invocation of Highway Law § 10 (24-d) results in a different outcome under these facts. Here, the State appropriated land from claimant and its neighbors, nearly simultaneously, under the powers of Highway Law § 10, as referenced in the easements. In doing so, the State required under its permanent easements that the use of the appropriated land be to reestablish access and that the roads could only be used for that purpose, and further mandated that the roads must be maintained by the owners for that purpose. Failure to maintain the entry and egress roads would give claimant an enforceable right. Thus, the overall clear intent of the State from the outset was to reestablish public access to this busy retail area. The easements here, which undeniably served the purpose of reestablishing permanent joint driveways for access to the retail outlets, when viewed in reference to the powers of the Commissioner under Highway Law § 10 (24-d), create a legal right of access to claimant.

The language employed in creating the easements, although admittedly sparse, meets the State’s threshold under the Highway Law as it reflects a clear intent to reestablish access to the landowners, including claimant, as well as tenants and those patronizing the retail outlets. No formal deed to the condemnee need be conferred to establish legal access rights. The invocation of Highway Law § 10 would otherwise serve no purpose if the right of access was being granted only to the owner of the land it traversed. Referencing Highway Law § 10 in the easements and dictating that the land must be permanently used and maintained as public access roads gives rise to an enforceable legal right of access to claimant and dispenses with any claim for consequential damages.

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

Chief Judge Kaye and Judges Rosenblatt, Gbaffeo, Read and R.S. Smith concur; Judge Pigott taking no part.

Order affirmed, with costs.

      . Claimant’s land was approximately 1.82 acres prior to the taking and easements. The State appropriated 6,081 square feet of land under Parcel No. 268 as well as easements covering 683 square feet of land by the southern border under Parcel No. 269 and 1,461 square feet of land by the eastern border under Parcel No. 270.

      . In opposition to the bill, the State Comptroller wrote:
      “[i]t is inequitable to shift the burden of eminent domain from one property owner to another by a procedure which in effect constitutes substitute condemnation . . .
      “We recommend disapproval for the reason stated above . . . ; namely that this bill authorizes the appropriation of property of others solely in the interest of financial advantage to the State in providing compensation to private owners of appropriated property” (Dept of Audit and Control Mem in Opposition, Bill Jacket, L 1967, ch 193).


source: Caselaw Access Project

author: Rosenblatt, J.

license: Public Domain

text:
    [857 NE2d 513, 824 NYS2d 192]
    ADC Orange, Inc., Appellant, v Coyote Acres, Inc., Respondent.
    Argued September 12, 2006;
    decided October 19, 2006

      POINTS OF COUNSEL

      Powers & Santola, LLP, Albany (Michael J. Hutter of counsel), and Tarshis, Catania, Liherth, Mahon & Milligram, PLLC, New-burgh, for appellant.
    I. Coyote Acres, Inc. wrongfully repudiated the contract when ADC Orange, Inc.’s contractually obligated second payment was made 11 days after it was purportedly due, as time was not of the essence for such payment. (Grace v Nappa, 46 NY2d 560; Kulanski v Celia Homes, 7 AD2d 1006; Blanchard v Archer, 93 App Div 459; Chung-Li Chou v Main St. Assoc., 208 AD2d 670; Sohayegh v Oberlander, 155 AD2d 436; Savitsky v Sukenik, 240 AD2d 557; 4200 Ave. K Realty Corp. v 4200 Realty Co., 123 AD2d 419; Poteralski v Colombe, 84 AD2d 887; Maxton Bldrs. v Lo Galbo, 68 NY2d 373; Lawrence v Miller, 86 NY 131.) II. Coyote Acres, Inc. may not argue that ADC Orange, Inc. was not ready, willing and able to obtain subdivision approval, as its conduct frustrated and hindered ADC’s ability to obtain the approval, or, alternatively Coyote waived that condition. (Klein v Opert, 218 AD2d 784; Whitney v Perry, 208 AD2d 1025; Higgins

      v Eagleton, 155 NY 466; Madison Invs. v Cohoes Assoc., 176 AD2d 1021; Huntington Min. Holdings v Cottontail Plaza, 60 NY2d 997; Stawski v Epstein, 67 AD2d 681; Amies v Wesnofske, 255 NY 156; Young v Hunter, 6 NY 203; Lieberman Props. v Braunstein, 134 AD2d 55; McKenna v Case, 123 AD2d 517.)

      Joseph J. Haspel, PLLC, Goshen {Joseph J. Haspel of counsel), and Errol Blank, West Nyack, for respondent.
    I. The Second Department’s order should be affirmed because ADC Orange, Inc. breached the agreement by failing to make the agreed payment, and there is no recognized basis under New York law for relieving ADC of that preclosing obligation. (Grace v Nappa, 46 NY2d 560; Willard v Mercer, 58 NY2d 840; Maxton Bldrs. v Lo Galbo, 68 NY2d 373; Oppenheimer & Co. v Oppenheim, Appel, Dixon & Co., 86 NY2d 685; Whitney v Perry, 208 AD2d 1025; Exclusive Envelope Corp. v Tal-Spons Corp., 187 AD2d 556; Swezey v Marra, 143 AD2d 827; Poteralski v Colombe, 84 AD2d 887; Savitsky v Sukenik, 240 AD2d 557; Baltic v Rossi, 289 AD2d 430.) II. The Second Department’s order granting Coyote Acres, Inc.’s summary judgment motion dismissing ADC Orange, Inc.’s specific performance claim should be affirmed because ADC failed to demonstrate that there were triable issues of fact with respect to its inability to demonstrate that it was ready, willing and able to perform under the agreement. (Lamanna v Wing Yuen Realty, 283 AD2d 165; Goewey v Delta D & I Corp., 175 AD2d 299; Oak Bee Corp. v Blankman & Co., 154 AD2d 3; S.J.E. Realty Corp. v Lantz, 154 AD2d 523; Norgate Homes v Central State Bank, 82 AD2d 849; Shandler v Bauz, 121 AD2d 619; Lieberman Props. v Braunstein, 134 AD2d 55; Louis Bonavita & Sons v Quarry, 126 AD2d 707; Savino v DeLeyer, 160 AD2d 989.)
   OPINION OF THE COURT

Rosenblatt, J.

This case involves a contract for the sale of land. The buyer seeks specific performance; the seller has kept the down payment, claiming the buyer breached the contract. Pursuant to the contract, the buyer was obligated to make an interim payment of $250,000 by a particular date. Because the buyer made the payment two weeks late, the outcome of the appeal turns in part on whether, in connection with that obligation, time was “of the essence.” We hold that in contracts of this type, time of performance is not normally of the essence unless the contract so states or one of the parties has unequivocally declared it upon proper notice.

ADC Orange, Inc. as buyer and Coyote Acres, Inc. as seller entered into a contract in December 2000 for the sale of a parcel of property in the Town of Wallkill, Orange County for $600,000. As required by the contract, ADC made a down payment of $100,000, which Coyote’s attorney held in escrow. The agreement contained a condition requiring ADC to obtain subdivision and site plan approval from the town planning board for the construction of at least 25 “residence dwellings upon the Premises and such approvals being received no later than June 30, 2002.” Coyote in turn agreed to execute authorizations required for the approvals.

A rider provided that ADC was entitled to a return of the $100,000 down payment if, despite good faith and due diligence, it failed to obtain the approvals. The rider further provided — of pivotal importance here — that ADC make an interim payment of $250,000 “[ujpon the later of the preliminary approval having been received from the applicable authorities for the subdivision or December 31, 2001 but in no event later than December 31, 2001.” ADC was to pay the balance on filing the final approval and subdivision map. The contract contained no time-of-the-essence clause and did not provide that ADC’s failure to make the interim payment by December 31, 2001 would put it in default.

When Coyote signed the contract, it did not have title to the property. In fact, it did not obtain title until July 12, 2001, some seven months later. Beginning June 22, 2001, the attorneys for the parties corresponded with one another. Writing to Coyote, ADC expressed concern that it would hot be able to proceed with its application for subdivision approval in time to appear at a scheduled planning board meeting if it did not immediately receive authorization from the property owner. If ADC did not receive the requested authorization, counsel wrote, “the Contract will be deferred accordingly.”

Coyote replied that written authorization had been sent to ADC’s agents “some time ago.” In a June 27, 2001 letter to Coyote, however, ADC insisted that it had still not received written authorization and that “all of the time frames within the contract are suspended until [it] has received the written authorization from the current landowner.” That day, Coyote faxed the current owner’s authorization to ADC. On December 26, 2001, Coyote’s attorney sent ADC a fax reminding ADC “that the contract of sale in the above matter requires an additional deposit of $250,000 to be made no later than December 31, 2001.” “I look forward,” he continued, “to my timely receipt of such deposit.”

By a December 31 fax, ADC’s counsel acknowledged the reminder and said that his principal was out of the country but would transfer the funds “upon his return on January 14, 2002.” Coyote did not immediately respond to this proposal; its counsel was also away. On January 10, 2002, however, an attorney who was of counsel to Coyote’s law firm wrote to ADC’s attorney informing him that Coyote considered ADC in default. ADC’s attorney responded the next day, enclosing a $250,000 check and insisting that the delay caused by his principal being out of the country did not constitute a default under the contract, inasmuch as it contained no time-of-the-essence provision. Over the next several months, the parties entered into negotiations by which Coyote would drop its objections to the timeliness of the payment if ADC agreed to some changes in the contract. The negotiations stalled and on March 13, 2002, Coyote declared ADC in default and returned the $250,000 check.

On April 10, 2002 ADC brought this action seeking specific performance of the contract. The following month, however, Coyote agreed to forgo its objections to the late payment in exchange for ADC’s consent to certain contractual changes. On June 5, 2002, ADC secured preliminary subdivision approval from the town planning board. It would be a year, however, before final approval was granted. The parties exchanged drafts of the amended contract in June 2002, but negotiations again broke down and this litigation ensued.

In answer to ADC’s complaint for specific performance, Coyote sought dismissal and raised two affirmative defenses. First, Coyote claimed that ADC breached the contract by its late payment of the $250,000, resulting in its default. This default, Coyote asserted, entitled it to keep the $100,000 down payment, which it sought by counterclaim. Second, Coyote asserted that the contract had been terminated when ADC failed to obtain final subdivision approval by June 30, 2002, and that if it were to return the down payment, Coyote would have no further obligation to ADC.

Both moved for summary judgment. Holding that Coyote improperly repudiated the contract, Supreme Court granted ADC’s motion and ordered specific performance. The Appellate Division reversed, ruling that ADC’s late payment constituted a material breach of the contract, entitling Coyote to keep the down payment. The Appellate Division additionally stated that ADC was not entitled to specific performance because Coyote had made a prima facie showing that ADC was not ready, willing and able to secure subdivision and site plan approval. ADC, the Court ruled, failed to raise a triable issue of fact on its claim that it could not obtain the approvals because of Coyote’s recalcitrance.

We modify and hold that ADC did not materially breach the contract by its late payment, and that there are triable issues of fact as to whether Coyote hindered ADC in its ability to perform.

Time of the Essence

The question whether ADC’s late installment payment constitutes a material breach depends on whether time was of the essence with respect to that payment. Unless it was, ADC had a reasonable time in which to tender performance after the specified date of December 31, 2001 (see Grace v Nappa, 46 NY2d 560, 565 [1979]).

Grace stands for the proposition that in contracts of this kind, time is not ordinarily of the essence unless the agreement so provides (see also Brum Realty v Takeda, 205 AD2d 365 [1st Dept 1994]; Savitsky v Sukenik, 240 AD2d 557 [2d Dept 1997]). Here, the contract obligated ADC to pay $250,000 “in no event later than December 31, 2001.” That language alone does not make time of the essence. As we have long held, “the mere designation of a particular date upon which a thing is to be done does not result in making that date the essence of the contract” (Ballen v Potter, 251 NY 224, 228 [1929]).

We agree with Whitney v Perry (208 AD2d 1025 [3d Dept 1994]), in which the Appellate Division held that the very same phrase “in no event later than” is not sufficient to make time of the essence in connection with a closing date (see also Exclusive Envelope Corp. v Tal-Spons Corp., 187 AD2d 556, 557 [2d Dept 1992]; Lightle v Becker, 18 AD3d 449, 450 [2d Dept 2005]). We see no reason why the same rule should not apply under these facts, with respect to the installment payment (see e.g. 41-41 51st St. Realty Assoc. v Tura Assoc., 207 AD2d 524, 525 [2d Dept 1994]).

Although the most effective way for a party to make time of the essence is to say so in the contract, we recognize that there may be circumstances in which a party would be justified in making time of the essence even though it was not articulated in the agreement. In Levine v Sarbello (67 NY2d 780 [1986], affg 112 AD2d 197, 200 [2d Dept 1985]), we acknowledged that it is possible for the seller to convert a non-time-of-the-essence contract into one making time of the essence by giving the buyer “clear, unequivocal notice” and a reasonable time to perform. The Court concluded, however, that the seller’s abrupt notification purporting to make time of the essence — coupled with a simultaneous declaration of default — was a nullity (see also Zev v Merman, 134 AD2d 555 [2d Dept 1987], affd 73 NY2d 781 [1988]; Dwyer v Villanova, 129 AD2d 763 [2d Dept 1987]).

Here, Coyote’s declaration of default was similarly ineffective. The contract did not contain a time-of-the-essence provision nor did Coyote’s December 26, 2001 fax put ADC on notice that its failure to pay on December 31 (as opposed to two weeks later) would amount to a default and the forfeiture of a $100,000 down payment. Accordingly, we conclude that ADC did not commit a material breach of the contract and is entitled to a return of its down payment.

Specific Performance

On this record, ADC is not entitled to specific performance as a matter of law. To obtain specific performance, it was necessary for ADC to show that it was ready, willing and able to fulfill its contractual obligations (Huntington Min. Holdings v Cottontail Plaza, 60 NY2d 997, 998 [1983]; Cipriano v Glen Cove Lodge #1458, B.P.O.E., 1 NY3d 53 [2003]). Coyote argues, correctly we conclude, that ADC failed to carry this burden in that it had not obtained final subdivision approval by June 30, 2002.

But neither is Coyote entitled to a dismissal of ADC’s claim for specific performance. ADC claims that Coyote frustrated its ability to obtain final subdivision approval. If Coyote was to blame for ADC’s failure, Coyote has no cause to charge ADC with it. “[A] party to a contract cannot rely on the failure of another to perform a condition precedent where he has frustrated or prevented the occurrence of the condition” (Kooleraire Serv. & Installation Corp. v Board of Educ. of City of N.Y., 28 NY2d 101, 106 [1971]). On this record, the question cannot be decided either way as a matter of law.

Undisputedly, Coyote did not acquire title to the property until July 12, 2001, long after the contract was signed. ADC claims that Coyote had given oral assurances that it would acquire title very soon after the contract was signed. Whether this is so and whether any delay on Coyote’s part affected the speed with which ADC could get subdivision approval are questions of fact. Further, in the spring of 2002, after Coyote declared ADC in default and returned the check, the stalled negotiations — and Coyote’s alleged recalcitrance — may have slowed the approval process. Whether that is so and whether Coyote is to blame for it are questions of fact.

In sum, we hold that Coyote must return the down payment to ADC and that ADC’s claim for specific performance raises questions of fact requiring a trial.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be modified, without costs, by remitting the case to Supreme Court for further proceedings in accordance with this opinion and, as so modified, affirmed.

Chief Judge Kaye and Judges Ciparick, Grapfeo, Read and R.S. Smith concur; Judge Pigott taking no part.

Order, insofar as appealed from, modified, etc.


author: ClPARIGK, J.

text:
    [859 NE2d 469, 825 NYS2d 663]
    In the Matter of Terence Dolce, Respondent, v Nassau County Traffic and Parking Violations Agency, Appellant.
    Argued September 13, 2006;
    decided October 24, 2006

      POINTS OF COUNSEL

      Loma B. Goodman, County Attorney, Mineóla (Dennis J. Saffran of counsel), for appellant.
    I. The Traffic and Parking Violations Agency is an arm of the District Court for the purpose of the filing of a simplified traffic information to commence a case — a duplicative physical filing at the courthouse is not required. (People v Jones, 178 Misc 2d 681; Matter of Allstate Ins. Co. v Shaw, 52 NY2d 818; Cabell v Markham, 148 F2d 737.) II. Since the Traffic and Parking Violations Agency is an adjunct of the District Court for the purpose of this filing, it has concurrent jurisdiction with the Village Court over traffic and parking cases arising in villages.

      Albanese & Albanese LLP, Garden City (Robert A. Carpentier of counsel), for respondent.
    In the case at bar the Traffic and Parking Violations Agency did not have jurisdiction over the simplified traffic information involving an alleged traffic offense within the geographical boundaries of the Incorporated Village of Mineóla. (People v Jones, 178 Misc 2d 681.)
   OPINION OF THE COURT

ClPARIGK, J.

In this appeal we are asked to determine whether the Nassau County Traffic and Parking Violations Agency (TPVA) has jurisdiction to adjudicate certain traffic and parking violations and, further, whether a duplicate physical filing in the District Court of a simplified traffic information is necessary to confer such jurisdiction on the TPVA. Upon reviewing the language of the statute authorizing the creation of the TPVA and its legislative history, we conclude that the TPVA was created to be an adjunct of the Nassau County District Court and therefore has jurisdiction to adjudicate traffic and parking violations without the need for any duplicative filing in District Court.

Petitioner was issued a traffic ticket in 2001, returnable at the TPVA, for allegedly driving around a lowered railroad crossing gate in the Village of Mineóla, County of Nassau. His motion to dismiss the simplified traffic information, based on the prosecution’s alleged failure to provide a supporting deposition as requested, was denied by a TPVA judicial hearing officer. Petitioner then initiated this CPLR article 78 proceeding seeking annulment of the judicial hearing officer’s determination. He also alleged that the TPVA lacked jurisdiction, which should properly lie in the Mineóla Village Court.

Supreme Court granted the petition, annulled the determination and transferred the matter to the Mineóla Village Court for further proceedings. The court observed that the accusatory instrument was not filed pursuant to CPL 100.55 (5) (authorizing the filing of certain accusatory instruments, including simplified traffic informations, “with a village court of a particular village when an offense charged therein was allegedly committed in such village”). The court further opined that although CPL 100.55 (1) and (9) grant the Nassau County District Court concurrent jurisdiction with the Village Court for offenses committed within the county, the section apparently fails to grant concurrent jurisdiction to the TPVA. Relying on People v Jones (178 Misc 2d 681 [App Term, 2d Dept 1998]), Supreme Court reasoned that the TPVA was not an arm of the District Court. The Appellate Division affirmed, concluding that District Court retained plenary jurisdiction and that since the simplified traffic information here was not physically filed with District Court as required by CPL 100.55 (1), jurisdiction was lacking. We now reverse.

In 1990, the Legislature authorized the Board of Supervisors of the County of Nassau to “establish a traffic and parking violations agency to assist the court having jurisdiction of traffic and parking cases in the administration and disposition of traffic and parking infractions” (former General Municipal Law § 370 [2] [added by L 1990, ch 496, § 1]). Pursuant to this authority, the Nassau County Administrative Code was thereafter amended to provide for the establishment of the Nassau County TPVA (see Nassau County Administrative Code § 24-1.0 et seq., added by Local Law No. 1-1991 of the County of Nassau [eff Jan. 28, 1991], as amended by Local Law No. 5-1992 [eff Apr. 6, 1992]).

Unlike the courts below, we conclude that the TPVA was established simply as a branch of the Nassau County District Court, which court concededly has jurisdiction to adjudicate simplified traffic informations under CPL 100.55 (1). We further determine that People v Jones, which held to the contrary and on which the courts below relied, was wrongly decided.

Both the statutory language and the legislative history support the conclusion that the TPVA was intended to be an arm of the District Court. First, the TPVA enabling legislation amended the Criminal Procedure Law to permit the Administrative Judge of Nassau County, without consent of the parties, to assign certain Nassau County District Court matters involving traffic and parking infractions to judicial hearing officers (see CPL 350.20 [5]). The TPVA uses these very District Court judicial hearing officers to adjudicate such matters (see Vehicle and Traffic Law § 1690 [1]). Moreover, “[a]ny action taken by a judicial hearing officer in the conduct of a trial or other disposition thereof shall be deemed the action of the court in which the proceeding is pending” (Vehicle and Traffic Law § 1690 [3]; see also Nassau County Mem in Support, Bill Jacket, L 1990, ch 496, at 8 [“(u)nlike the traffic adjudication bureaus currently found in New York City and other areas, under this bill, the residents of Nassau County would be assured of a judicial presence during trial and would be afforded the protections of the Criminal Procedure Law”]).

In concluding that the TPVA is not an arm of the Nassau County District Court, the Appellate Term in Jones noted that General Municipal Law § 371 (3) provides that the “agency shall not be authorized to deprive a person of his right to counsel or to prevent him from exercising his right to appear in court to answer to, explain, or defend any charge” (emphasis added). Properly construed, however, this statute means only that the TPVA may not lawfully deprive a person of his or her right to appear personally before the court — including before the TPVA. Thus, a defendant permitted to appear before the agency is indeed exercising his or her right “to appear in court” to answer the charges, since the TPVA is — and was established to be, as jurisdictionally required in order for it to function — an arm of the District Court.

The Legislature could not have intended that the statute be construed otherwise, since the Appellate Term’s reading would divest the TPVA of jurisdiction to hear the very matters for which it was established. Rather, since the Legislature must have contemplated that cases before the TPVA would continue to be deemed District Court cases, it did not bother to amend CPL 100.55 — which confers jurisdiction by specifying the courts in which local criminal court accusatory instruments (including simplified traffic informations) may be filed — to add the TPVA as an enumerated body having concurrent jurisdiction over traffic infractions occurring within a village.

The Appellate Term also erred when it stated that the fines imposed by the agency are not “forwarded” to the court, and that judgments of conviction are not docketed in the Nassau County District Court (178 Misc 2d at 683). Since they are docketed in the TPVA, which is itself a branch of the court, there is no need to docket the judgments twice or to “forward” fines to a different part of the very court into which they have already been paid. Indeed, the fines that may be imposed by, and the procedures before, the TPVA hearing officers are set by the Board of Judges of the Nassau County District Court (see Nassau County Charter § 2408).

The Appellate Term further based its conclusion on the statutory requirement that a person having three or more violations, other than parking violations, within the preceding 12 months “shall not be permitted to appear and answer to a subsequent violation at the traffic violations bureau or agency, but must appear in court at a time specified by the bureau or agency” (General Municipal Law § 371 [3]). When applied to the TPVA, this means only that a person with three or more convictions must appear before a judge, and not a judicial hearing officer. Admittedly, in our reading, the Legislature’s use of the word “court” in section 371 (3) is inconsistent with its use of the same word elsewhere in the statute governing the TPVA. Only by acknowledging this inconsistency, however, can we read the statute as a coherent whole, designed to accomplish its purpose.

Finally, the Appellate Term relied on an Office of Court Administration (OCA) memorandum submitted in support of the original legislation creating the TPVA, which stated that it viewed the proposed bill as a “small but significant incremental step toward achievement of an important objective of this Office: divestiture in City and District Courts statewide of jurisdiction over non-criminal traffic violations and parking violations” (Mem of Off of Ct Admin, 1990 McKinney’s Session Laws of NY, at 2929). Plainly, OCA meant by this that it welcomed the stated goal of the proposed legislation — “to relieve the Nassau County District Attorney[] and the Nassau County District Court of routine traffic and parking responsibilities so that their time and efforts can be more effectively focused on serious felony and misdemeanor matters” (Senate-Assembly Mem in Support, Bill Jacket, L 1990, ch 496, at 6; see also Mem of Off of Ct Admin, 1990 McKinney’s Session Laws of NY, at 2929 [measure promises to “free() heavily-burdened District Court Judges to preside over more significant civil and criminal matters”]; cf. Vehicle and Traffic Law §§ 215, 225 [statutory authority for the formation of tribunals to handle certain traffic infractions in cities with a population of two hundred thousand or more]).

Nor do we agree with the Appellate Division that the statutory scheme requires the People to physically file duplicative copies of the same simplified traffic information — one at the Nassau County District Courthouse and one with the TPVA — in order to confer jurisdiction on the TPVA. The Appellate Division based its conclusion on Vehicle and Traffic Law § 1690, which provides that “the judicial hearing officer shall have the same powers as a judge of the court in which the proceeding is pending” (Vehicle and Traffic Law § 1690 [2] [emphasis added]), and that “[a]ny action taken by a judicial hearing officer in the conduct of a trial or other disposition thereof shall he deemed the action of the court in which the proceeding is pending” (Vehicle and Traffic Law § 1690 [3] [emphasis added]). Again, since the TPVA is an arm of the District Court, the proceeding is indeed pending in that court by virtue of its filing with the TPVA.

In addition to relying on Jones, the Appellate Division further based its conclusion that the TPVA is not a branch of the Nassau County District Court on its belief that the agency is actually “a ‘department’ of the Nassau County government which is overseen by an executive director who is appointed by the county executive and confirmed by the county legislature” (20 AD3d 415, 416 [2d Dept 2005]). In so stating, however, the Appellate Division appears to have been referring to, and citing, amended versions of General Municipal Law § 370 (2) and § 374 (b) that were not enacted until 2002 (see L 2002, ch 527, §§ 1, 3). But petitioner’s alleged traffic infraction was committed in 2001, before these amendments. Accordingly, in determining the jurisdictional question posed, the Appellate Division failed to construe the statutes actually in effect at the time of the filing of the instant simplified traffic information (see L 2002, ch 527, § 6 [“(n)othing in this act shall be construed ... to impair the authority of actions taken in cases before the Nassau county traffic and parking violations agency prior to the effective date of this act or to affect the status of any matter pending before the Nassau county traffic and parking violations agency prior to such date”]).

In any event, the Appellate Division erred in failing to recognize that the TPVA is a hybrid agency that exercises both prosecutorial and adjudicatory responsibilities (see Senate-Assembly Mem in Support, Bill Jacket, L 1990, ch 496, at 5 [purpose of the bill is to “establish a Traffic and Parking Violations Agency for the prosecution and adjudication of traffic and parking violations in Nassau County” (emphasis added)]). The 2002 amendments all related to the prosecutorial function of the TPVA, which is distinct from the adjudicatory function of the TPVA, which remains within the District Court. Indeed, Nassau County judicial hearing officers, who preside over TPVA matters, continue to be appointed by the Nassau County Administrative Judge.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the case remitted to Supreme Court for further proceedings on the petition.

Chief Judge Kaye and Judges Rosenblatt, Gbaffeo, Read and R.S. Smith concur; Judge Pigott taking no part.

Order reversed, etc.

      . Neither court below addressed the claims of failure to provide a supporting deposition or that TPVA’s determination was arbitrary and capricious and unsupported by substantial evidence.

      . It should be noted that Vehicle and Traffic Law § 1690 (1) requires that the Administrative Judge of the County appoint judicial hearing officers who must be admitted to practice law and be village court justices or retired judges with two years of experience conducting trials of traffic violations.

      . General Municipal Law § 371 (3) — whose provisions predate chapter 496 of the Laws of 1990 (which added former General Municipal Law § 370 [2], authorizing the establishment of the Nassau County TPVA) — applies both to city, town and village “traffic violations bureau[s]” authorized by General Municipal Law § 370 (1), and to the Nassau County TPVA authorized by General Municipal Law § 370 (2).

      . The legislation also created the position of “traffic prosecutor” (see General Municipal Law § 374), thereby freeing overburdened Nassau County assistant district attorneys from the prosecution of minor traffic offenses.

      . Specifically, the amendments removed the responsibility for appointing traffic prosecutors from the judiciary to the Executive Director of the TPVA, who, in turn, was also no longer to be appointed by the judiciary. In enacting these amendments, the Legislature was responding to concerns that the then-current administrative structure of the agency had “ support [ed] an unaccountable bureaucracy that has resulted in tremendous governmental waste,” and that the lack of political accountability had resulted in a failure “to keep unsafe drivers off the road, appropriately sanction violators and collect fines” (Senate Mem in Support, 2002 McKinney’s Session Laws of NY, at 2032).


author: Gbaffeo, J.

text:
    [858 NE2d 318, 824 NYS2d 771]
    The People of the State of New York, Respondent, v Frank Cuttita, Appellant.
    Argued September 14, 2006;
    decided October 24, 2006

      POINTS OF COUNSEL

      Albert A. Gaudelli, Forest Hills, for appellant.
    I. The evidence at trial is legally insufficient: defendant acted as a landlord collecting rent — nothing more and nothing less. (People v Reed, 40 NY2d 204; People v Santos, 38 NY2d 173; Jackson v Virginia, 443 US 307; People v Contes, 60 NY2d 620; Warriner v Y.W.C.A. of Syracuse, 137 Misc 2d 1054; Matter of Crociata v State Tax Commn. of State of N.Y., 134 AD2d 112, 73 NY2d 726; Fischer v Taub, 127 Misc 2d 518; Matter of Grinker [Rose], 77 NY2d 703; Rivers v Katz, 67 NY2d 485; Matter of Maher, 207 AD2d 133.) II. The office of the Welfare Inspector General lacks jurisdiction to prosecute. (People v Soddano, 86 NY2d 727; People v Van Sickle, 13 NY2d 61; Della Pietra v State of New York, 71 NY2d 792; Matter of Haggerty v Himelein, 89 NY2d 431; People v Romero, 91 NY2d 750; People v Gilmour, 98 NY2d 126; People v Fox, 253 AD2d 192.) III. Expert testimony was improperly received on the definition of an adult facility. (People v Johnson, 76 AD2d 983; People v Kirsh, 176 AD2d 652, 79 NY2d 949; People v Ciaccio, 47 NY2d 431; Torres v County of Oakland, 758 F2d 147; People v Lurie, 249 AD2d 119, 92 NY2d 900; People v Schwartz, 21 AD3d 304; People v A.S. Goldmen, Inc., 9 AD3d 283, 3 NY3d 703; United States v Scop, 846 F2d 135, 856 F2d 5.) IV The use of hearsay in business records amounted to trial by ambush. (Crawford v Washington, 541 US 36; People v Pacer, 6 NY3d 504; Matter of Leon RR, 48 NY2d 117; People v Richardson, 38 AD2d 990; Stevens v Kirby, 86 AD2d 391; Boucheron v Tilley, 87 AD2d 983; Cummings v Fondak, 122 Misc 2d 913; People ex rel. McGee v Walters, 62 NY2d 317; People v Bridges, 184 AD2d 1042, 80 NY2d 973; People v Driscoll, 251 AD2d 759, 92 NY2d 896; People v Rogers, 8 AD3d 888.) V The trial court erred in advising the jury that it had attempted to “settle” the case and in reseating a juror that it had previously discharged. (People v Moore, 66 NY2d 1028; People v Jackson, 36 NY2d 922; People v Weaver, 177 NY 434; People v Dlugash, 41 NY2d 725.) VI. One cannot be required to evict third parties as a condition of probation. (People v Letterlough, 86 NY2d 259; People v McNair, 87 NY2d 772.)

      Eliot Spitzer, Attorney General, New York City {Megan P. Davis, Robin A. Forshaw and Michael S. Belohlavek of counsel), for respondent.
    I. The office of the Attorney General had jurisdiction to prosecute defendant. (Matter of Mann Judd Landau v Hynes, 49 NY2d 128; People v Gilmour, 98 NY2d 126; Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d 669; People v Fox, 253 AD2d 192.) II. The People proved beyond a reasonable doubt that defendant knowingly operated an unlicensed adult care facility. (People v Williams, 84 NY2d 925; Jackson v Virginia, 443 US 307; People v Gray, 86 NY2d 10; Warriner v Y.W.C.A. of Syracuse, 137 Misc 2d 1054; Matter of Crociata v State Tax Commn. of State of N.Y., 134 AD2d 112, 73 NY2d 726; Fischer v Taub, 127 Misc 2d 518.) III. Defendant’s claims of trial error are all either unpreserved or meritless. (People v Everson, 100 NY2d 609; People v Tevaha, 84 NY2d 879; People v Lurie, 249 AD2d 119; People v Cronin, 60 NY2d 430; United States v Scop, 846 F2d 135; People v Schwartz, 21 AD3d 304; People v A.S. Goldmen, Inc., 9 AD3d 283; United States v Bilzerian, 926 F2d 1285; United States v Duncan, 42 F3d 97; People v Iannelli, 69 NY2d 684.) IV The trial court properly ordered defendant, as a special condition of his probation, to cease operating an adult care facility without a license. (People v Dlugash, 41 NY2d 725; People v Rocco, 309 AD2d 882; People v Turner, 247 AD2d 821; People v Ware, 29 AD2d 557; People v Myatt, 248 AD2d 68; People v McAllister, 150 AD2d 913.)
   OPINION OF THE COURT

Gbaffeo, J.

In this case, defendant Frank Cuttita asserts that the office of the State Welfare Inspector General was not statutorily authorized to prosecute him for knowingly operating an adult care facility without a license in violation of Social Services Law § 461-b (2) (c). Under the circumstances of this case, we agree that the Welfare Inspector General (WIG) lacked jurisdiction under the relevant statutes.

I.

Since the mid-1980s, defendant has been engaged in a dispute with state authorities regarding several properties in the Town of Liberty, Sullivan County, that defendant operated as communal residences for adults (see Perales v Cuttita, 127 AD2d 960 [3d Dept 1987]). The State has maintained that the residences are unlicensed adult care facilities for persons who have “physical or other limitations associated with age, physical or mental disabilities or other factors” and are therefore “unable or substantially unable to live independently” (Social Services Law § 2 [21]). An adult care facility that offers long-term care to fewer than five adults unrelated to the operator is categorized as a “family type home for adults” (Social Services Law § 2 [22]) and must be licensed by the State Office of Children and Family Services (OCFS) (see Social Services Law § 460-b [1]; § 461-b [2] [a]; L 1997, ch 436, part B, § 122 [d]). A facility that provides similar care to five or more adults unrelated to the operator is designated as a “residence for adults” (Social Services Law § 2 [24]) or, if direct or indirect personal care is provided, an “adult home” (Social Services Law § 2 [25]), both of which must be licensed by the State Department of Health (DOH) (see Social Services Law § 460-b [1]; § 461-b [2] [a]; L 1997, ch 436, part B, § 122 [e]).

Defendant has objected to applying for licenses from either DOH or OCFS on the basis that the properties are merely boarding houses not subject to state oversight and accreditation requirements. For a time, he successfully avoided the State’s efforts to regulate the homes and his activities (see Perales v Cuttita, 127 AD2d at 961). In 1999, however, DOH received a complaint about defendant’s operations and subsequently obtained a court order granting access to the residences. As a result of these inspections, DOH determined that defendant was operating adult care facilities without a license. After a hearing, an Administrative Law Judge substantially agreed with DOH’s assessment and concluded that defendant had violated Social Services Law § 460-b (1) and § 461-b (2) by failing to obtain a license from DOH for the operation of an adult home. Defendant was ordered to close the facility and pay a civil penalty of $1,000 per day of unlicensed operation after notification of DOH’s decision. Also, in 1999, the WIG issued a written request to the Attorney General asking for an investigation of “any indictable offense or offenses in violation of the law which the Welfare Inspector General is especially required to execute.”

Two judicial proceedings — one civil and one criminal — were then initiated against defendant. The Attorney General commenced a civil action seeking, among other relief, a permanent injunction to prohibit defendant from operating an adult care facility. Supreme Court found that the conclusions of the Administrative Law Judge were supported by substantial evidence and permanently enjoined defendant from operating an unlicensed adult care facility (People v Cuttita, 1 Misc 3d 904[A], 2003 NY Slip Op 51506[U] [2003]). The Appellate Division affirmed Supreme Court’s order (see Matter of People v Cuttita, 12 AD3d 881 [3d Dept 2004], lv denied 4 NY3d 706 [2005]).

Defendant was also charged in the Town of Liberty Justice Court with one misdemeanor count of knowingly operating an adult care facility between June 1992 and October 2001 without written approval in violation of Social Services Law § 461-b (2) (c). The case was prosecuted primarily by an attorney affiliated with the office of the WIG, who was also designated a Special Assistant Attorney General. On the eve of trial, defendant moved to dismiss the accusatory instrument, claiming that the WIG lacked jurisdiction to prosecute him under Executive Law § 74 (3) (d), which allows the WIG to initiate criminal actions premised on “fraud, abuse or illegal acts perpetrated within the department of social services or local social services districts, or by contractees or recipients of public assistance services” (Executive Law § 74 [3] [d]). In response, the WIG asserted that the statute provided his office with authority to prosecute this matter and, in any event, he had sent a written request to the Attorney General to prosecute defendant pursuant to the procedures set forth in Executive Law § 63 (3), which confers jurisdiction to prosecute in the Attorney General upon the request of the head of certain state agencies, departments and offices.

Justice Court denied defendant’s motion to dismiss and defendant proceeded to trial before a jury. The People presented evidence that, along with providing residents with housing and meals, defendant performed a variety of essential personal care and supervisory services for the residents, such as assisting with the management of finances, applying for public assistance, administering prescription medication, helping with personal hygiene, making health care appointments, supplying transportation to appointments with physicians and participating in treatment discussions with medical care providers. The People also adduced proof that several residents were incapable of living independently because of physical or psychological impairments, some of which required inpatient or outpatient mental health treatment. Based on this evidence, the jury convicted defendant of knowingly operating an adult care facility without a license. Defendant received a three-year sentence of probation, a condition of which was that he close the adult home.

On appeal, County Court affirmed defendant’s conviction, concluding that the WIG had prosecutorial authority under both Executive Law § 63 (3) and § 74 (3) (d), and that the other claims of trial error raised by defendant were not meritorious. A Judge of this Court granted leave to appeal, and we now reverse.

II.

Turning first to Executive Law § 74 (3) (d), defendant contends that the statute restricts the WTG’s prosecutorial powers to illegal acts committed internally within DOH, OCFS or local social services districts, or by contractees or recipients of public assistance, none of which are implicated here. The People respond that the WIG had jurisdiction to prosecute because defendant failed to comply with the regulations that apply to programs operated by DOH and OCFS.

The current structure and scope of authority of the office of the WIG is described in section 74, which was enacted as part of a comprehensive legislative package designed “[t]o implement cost containment initiatives and other cost, reduction measures which will control Medicaid expenditure growth and produce savings for the State and local governments” (Mem in Support, Bill Jacket, L 1992, ch 41, at 9). Although the office of the WIG is empowered “to conduct and supervise investigations relating to the programs of the department of social services” (Executive Law § 74 [3] [b]), the statute limits the nature of its “investigations” to “fraud, abuse, or illegal acts perpetrated within the department of social services or local social services districts, or by contractees or recipients of public assistance services” (Executive Law § 74 [1] [b]). The WIG’s authority to initiate criminal prosecutions is similarly restricted in section 74 (3) (d) to matters involving “fraud, abuse or illegal acts perpetrated within the department of social services or local social services districts, or by contractees or recipients of public assistance services” (Executive Law § 74 [3] [d]).

Rather than vesting the WIG with a wide-ranging mandate to investigate and prosecute any programs or matters regulated by DOH or OCFS, the Legislature chose to confine the WIG’s prosecutorial authority to fraud and illegality occurring “within the department of social services or local social services districts” (see Executive Law § 74 [3] [d]). Thus, the WIG’s efforts, under this provision, must be limited to exposing fraudulent or criminal acts committed inside those governmental entities. The statute contemplates enforcement authority against, for example, illegal activities by state employees in connection with government-run programs, individuals who improperly obtain government benefits and, perhaps, those who seek to obtain a required license by making fraudulent statements or submitting false documents. But defendant was neither a state employee nor a contractee or recipient of government assistance services. And since he has steadfastly maintained that his facility was not subject to licensing or oversight by DOH, his contact with the department was insufficient to bring his actions “within” DOH or OCFS for purposes of Executive Law § 74 (3) (d). Because the relevant statutory language does not evince an intent to provide the WIG with prosecutorial power to enforce statutory and regulatory licensing requirements subject to the jurisdiction of DOH and OCFS, under section 74 (3) (d) the WIG lacked authority to prosecute defendant for a violation of Social Services Law § 461-b (2) (c).

Nor may the power to prosecute this case be derived from the jurisdiction vested in the Attorney General under Executive Law § 63 (3). As we explained in People v Gilmour (98 NY2d 126, 129-132 [2002]), the Attorney General’s historical authority to instigate criminal proceedings has over time been transferred to county district attorneys. As a result, the Attorney General now has no power to prosecute crimes unless specifically permitted by law (see Della Pietra v State of New York, 71 NY2d 792, 796-797 [1988]; see also People v Gilmour, 98 NY2d at 131; People v Romero, 91 NY2d 750, 754 [1998]).

Executive Law § 63 (3), however, grants the Attorney General jurisdiction to investigate and prosecute certain criminal conduct upon the specific request of state officials:

“Upon request of the governor, comptroller, secretary of state, commissioner of transportation, superintendent of insurance, superintendent of banks, commissioner of taxation and finance, commissioner of motor vehicles, or the state inspector general, or the head of any other department, authority, division or agency of the state, [the Attorney General may] investigate the alleged commission of any indictable offense or offenses in violation of the law which the officer making the request is especially required to execute or in relation to any matters connected with such department, and to prosecute the person or persons believed to have committed the same and any crime or offense arising out of such investigation or prosecution or both, including but not limited to appearing before and presenting all such matters to a grand jury.”

Thus, when presented with a proper Executive Law § 63 (3) request (see People v Gilmour, 98 NY2d at 133-134), the Attorney General may investigate and prosecute alleged illegal activity that falls under the statutory or regulatory authority of the officer making the referral.

Here, the WIG contends that his 1999 letter requesting that the Attorney General investigate and prosecute certain matters was sufficient to invoke the Attorney General’s section 63 (3) prosecutorial powers, which the WIG could then exercise because his office is subsumed within the Department of Law (see Executive Law § 74 [2] [a]). We disagree. Even assuming that the WIG is the “head” of a “department, authority, division or agency of the state” who is authorized under Executive Law § 63 (3) to submit a written request for prosecution to the Attorney General, the correspondence requested the Attorney General to:

“investigate the alleged commission of any indictable offense or offenses in violation of the law which the Welfare Inspector General is especially required to execute or in relation to any matters connected to the Office of the Welfare Inspector General and that you prosecute the person or persons believed to have committed the same and any crime or offense arising from such investigation or prosecution” (emphasis added).

Investigating adult care facilities and ensuring compliance with Social Services Law § 461-b (2) (c) and other licensing requirements are the responsibility of DOH and OCFS (see Social Services Law § 460-b [1]; § 461-b [2] [a]; L 1997, ch 436, part B, § 122 [d], [e]). Thus, it follows that the operation of an unlicensed adult care facility neither involves a law that the WIG is required to execute nor pertains to a “matter[ ] connected with” the WIG (Executive Law § 63 [3]). Hence, the WIG cannot trigger the Attorney General’s authority under Executive Law § 63 (3) to prosecute a matter that is not encompassed within the WIG’s statutory powers. Consequently, defendant’s conviction cannot stand and the complaint must be dismissed (see People v Gilmour, 98 NY2d at 132).

Our conclusion, based on the facts presented, that the WIG did not have the authority to prosecute this case renders defendant’s additional claims of error academic.

Accordingly, the order of County Court should be reversed and the accusatory instrument dismissed.

Chief Judge Kaye and Judges Ciparick, Rosenblatt, Read and R.S. Smith concur; Judge Pigott taking no part.

Order reversed, etc.

      . When this controversy began, licensing authority was exercised by the Department of Social Services (DSS). In 1997, DSS was reorganized and renamed the Department of Family Assistance and its licensing powers were transferred to, among other entities, DOH and OCFS (see L 1997, ch 436, part B, § 122 [d], [e]). For purposes of this opinion, OCFS and DOH are referred to as the licensing agents during all times relevant to this appeal.

      . Charges relating to the other property, which the Administrative Law Judge found to be a family-type home for adults, were not sustained because OCFS — not DOH — had jurisdiction over that type of facility. The Administrative Law Judge also refused to impose any liability against defendant’s wife, who owned the properties at issue, because he believed that she could not be held legally responsible for defendant’s actions.

      . In addition to the prosecutor from the office of the WIG, an Assistant Attorney General from the Department of Law assisted with the prosecution. Accordingly, “the People,” as that term is used in this opinion, collectively refers to both the office of the WIG and the Attorney General’s office.

      . We deem these statutory references to DSS to mean DOH, the department that became responsible for licensing adult homes when DSS was dismantled in 1997 (see L 1997, ch 436, part B, § 133).

      . In fact, the Commissioner of Health, who is the head of a state department for purposes of Executive Law § 63 (3) (see Matter of Mann Judd Landau v Hynes, 49 NY2d 128, 137 [1979]), sent a referral letter to the Attorney General in 2002 asking him to “investigate and prosecute the alleged commission of any indictable offense . . . arising out of any violation of . . . the Social Services Law . . . relating to . . . the operation, management or funding of health-related entities and facilities subject to oversight by this Department, including . . . adult care facilities.” In their brief to this Court, the People claim that this request is sufficient under section 63 (3) to invoke the Attorney General’s prosecutorial authority. This argument was not raised in the courts below and, therefore, it is not preserved for review.