author: Pigott, J.

text:
    [15 NE3d 1172, 992 NYS2d 163]
    Wendy Webb-Weber, Appellant, v Community Action for Human Services, Inc., et al., Respondents, et al., Defendants.
    Argued March 27, 2014;
    decided May 13, 2014

      POINTS OF COUNSEL

      Bergstein & Ullrich, LLP, Chester (Stephen Bergstein of counsel), for appellant.
    I. Defendants have had fair notice of plaintiffs claim that she was terminated for speaking out on health, safety and fraud violations. (Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18; Rich v Lefkovits, 56 NY2d 276; Foley v D’Agostino, 21 AD2d 60; Feinberg v Bache Halsey Stuart, 61 AD2d 135; Dulberg v Mock, 1 NY2d 54; Matter of Miller v Board of Assessors, 91 NY2d 82; Matter of People v Horvath, 205 AD2d 927; Vig v New York Hairspray Co., L.P., 67 AD3d 140; Condon v Associated Hosp. Serv., 287 NY 411; Cammarota v Drake, 285 AD2d 919.) II. Plaintiffs memorandum of law in opposition to the motion to dismiss cites the rules and regulations that she claims defendants violated. (Lederman v McLean Trucking Co., 41 AD2d 5.) III. Even if this Court holds that the complaint must expressly cite the laws and regulations, defendants have not suffered the prejudice of any substantial right. (DiMauro v Metropolitan Suburban Bus Auth., 105 AB2d 236; Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18; Foley v D’Agostino, 21 AD2d 60; Catli v Lindenman, 40 AD2d 714; Pernet v Peabody Eng’g Corp., 20 AD2d 781.)

      Bond, Schoeneck & King, PLLC, New York City (Dennis A. Lalli and Allison M. Zullo of counsel), for respondents.
    The Labor Law § 740 cause of action was properly dismissed for failure to state a cause of action because the complaint does not plead the material elements of plaintiffs claim. (Iannone v Cayuga Constr. Corp., 66 AD2d 745; Peri v State of New York, 66 AB2d 949, 48 NY2d 734; Shapolsky v Shapolsky, 22 AD2d 91;
      Megna v Becton Dickinson & Co., 215 AD2d 542; Flamingo Telefilm Sales v United Artists Corp., 22 AD2d 778; Alvord & Swift v Muller Constr. Co., 46 NY2d 276; Bordell v General Elec. Co., 208 AD2d 219, 88 NY2d 869; Remba v Federation Empl. & Guidance Serv., 149 AD2d 131, 76 NY2d 801; Cotrone v Consolidated Edison Co. of N.Y., Inc., 50 AD3d 354; Cohen v Hunter Coll., 80 AD3d 452.)
   OPINION OF THE COURT

Pigott, J.

Labor Law § 740 (2), commonly referred to as the “whistle-blower statute,” provides, in relevant part, that “[a]n employer shall not take any retaliatory personnel action against an employee because such employee . . . discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of law, rule or regulation” that either “creates and presents a substantial and specific danger to the public health or safety, or . . . constitutes health care fraud” (Labor Law § 740 [2] [a]). The narrow issue on this appeal is whether a complaint asserting a claim under that provision must identify the specific “law, rule or regulation” allegedly violated by the employer. We conclude that there is no such requirement.

Plaintiff was the chief operating officer for defendant Community Action for Human Services, Inc. (Community Action), a not-for-profit corporation that provides social services to the mentally and physically disabled and is subject to oversight by the New York State Office for People with Developmental Disabilities (formerly the Office of Mental Retardation and Developmental Disabilities [OMRDD]). Plaintiff reported to Community Action’s chief executive officer, defendant David Bond.

After plaintiff was terminated from her position in September 2009, she commenced suit against, among others, both Community Action and Bond (hereinafter, defendants), claiming that she had been terminated in violation of Labor Law § 740 for registering complaints with public agencies concerning policies and practices of Community Action.

Defendants moved pursuant to CPLR 3211 to dismiss the complaint for failure to state a cause of action, asserting, as relevant here, that the complaint was deficient because it failed to identify the particular “law, rule or regulation” defendants are claimed to have violated. Plaintiff cross-moved for leave to serve an amended verified complaint. Supreme Court granted plaintiffs cross motion, and partially granted defendants’ motion to dismiss, leaving intact plaintiffs Labor Law § 740 claim (2011 NY Slip Op 34087DJ] [2011]). The Appellate Division reversed and dismissed the section 740 claim, holding that the complaint did not state a cause of action because it failed to “identify a specific law, rule or regulation that defendants purportedly violated” (98 AD3d 923, 924 [1st Dept 2012] [citations omitted]). This Court granted plaintiff leave to appeal (20 NY3d 855 [2013]) and we now reverse.

The plain language of Labor Law § 740 (2) (a) does not impose any requirement that a plaintiff identify the specific “law, rule or regulation” violated as part of a section 740 claim. Subdivision (2) (a) prohibits an employer from taking retaliatory personnel action against an employee because she either discloses or threatens to disclose the employer’s “activity, policy or practice.” The reasonable interpretation is that, in order to recover under a section 740 claim, plaintiff must show that she reported or threatened to report the employer’s “activity, policy or practice,” but need not claim that she cited any particular “law, rule or regulation” at that time. As one commentator has observed, “[mjerely the practice — not the legad basis for finding it to be a violation — appears to be what must be reported” (Richard A. Givens, Practice Commentaries, McKinney’s Cons Laws of NY, Book 30, Labor Law § 740 at 549 [1988 ed]). Plaintiff reasons that, just as an employee need not cite the actual law, rule or regulation violated when the complaint is made, her pleading is, correspondingly, not required to identify the “law, rule or regulation” violated. We agree.

To be sure, in order to recover under a Labor Law § 740 theory, the plaintiff has the burden of proving that an actual violation occurred, as opposed to merely establishing that the plaintiff possessed a reasonable belief that a violation occurred (Bordell v General Elec. Co., 88 NY2d 869, 871 [1996] [dismissing section 740 claim on summary judgment where the plaintiff conceded that the employer did not violate any law, rule or regulation]). And, the violation must be of the kind that “creates a substantial and specific danger to the public health or safety” (Remba v Federation Empl. & Guidance Serv., 76 NY2d 801, 802 [1990] [internal quotation marks omitted]). However, for pleading purposes, the complaint need not specify the actual law, rule or regulation violated, although it must identify the particular activities, policies or practices in which the employer allegedly engaged, so that the complaint provides the employer with notice of the alleged complained-of conduct. To the extent that Appellate Division authority can be read as requiring a plaintiff to plead the actual law, rule or regulation the employer violated, it should no longer be followed for that proposition (see Deshpande v TJH Med. Servs., P.C., 52 AD3d 648, 650 [2d Dept 2008], lv denied 12 NY3d 704 [2009]; Blumenreich v North Shore Health Sys., 287 AD2d 529, 530 [2d Dept 2001]; Connolly v Macklowe Real Estate Co., 161 AD2d 520, 522-523 [1st Dept 1990]).

According to the amended verified complaint, plaintiff apprised Bond and other Community Action representatives about issues she claims endangered the welfare and safety of Community Action patients. Specifically, plaintiff registered complaints about the falsification of patient medication and treatment records, inadequate fire safety, mistreatment of Community Action residents, and deficiencies in patient care and in the facility itself. When those conditions continued unabated, plaintiff notified the OMRDD and the New York City Fire Department. The OMRDD conducted a survey of the Community Action premises and issued a “60-Day Order”; when a follow-up survey indicated that the violations had not been remedied, Community Action was placed under sanctions by the New York State Department of Health. Moreover, the New York City Fire Department issued three violations against defendants.

Affording plaintiffs complaint a liberal construction, as we must on a motion to dismiss, and giving the plaintiffs allegations every favorable inference, we conclude that the complaint is sufficient to state a cause of action under section 740 (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). The substantive allegations in the complaint, particularly those that assert that sanctions and violations were issued by public bodies, allegedly as a result of plaintiffs complaints, sufficiently support plaintiffs allegation that defendants violated various laws, rules or regulations. Moreover, defendants can request in a bill of particulars that plaintiff identify the particular laws, rules and regulations allegedly violated.

Nor should the complaint be dismissed on the ground that plaintiff failed to plead that the alleged violations created and presented “a substantial and specific danger to the public health or safety” or constituted health care fraud. Under the circumstances of this case, the complaint adequately met the pleading requirements.

Accordingly, the order of the Appellate Division insofar as appealed from should be reversed, with costs, and the motion by defendants Community Action and David G. Bond to dismiss the Labor Law § 740 cause of action as against them should be denied.

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

Order, insofar as appealed from, reversed, with costs, and motion by defendants Community Action for Human Services, Inc. and David G. Bond to dismiss the first cause of action as against them denied.

      . The complaint against Community Action’s Board of Directors and Paige Bond has been dismissed and they are not parties to this appeal.

      . Plaintiff also brought a claim pursuant to Labor Law § 741 that was eventually dismissed by the Appellate Division, but she has abandoned that claim on this appeal and asks for reinstatement of only the section 740 claim.

      . In light of plaintiffs cross motion, Supreme Court had given defendants an opportunity to submit an additional brief in support of their motion to dismiss, but defendants opted to rely on their original submission.


source: Caselaw Access Project

author: Abdus-Salaam, J. Chief Judge Lippman

license: Public Domain

text:
    [15 NE3d 805, 991 NYS2d 792]
    The People of the State of New York, Respondent, v Raphael Golb, Appellant.
    Argued March 25, 2014;
    decided May 13, 2014

      POINTS OF COUNSEL

      Law Office of Ronald L. Kuby, New York City (Ronald L. Kuby and Leah M. Busby of counsel), for appellant.
    I. The trial court’s refusal to properly limit the definitions of “benefit,” “harm,” “injury” and “fraud” compelled the jury to criminalize expressions of defendant’s opinion, of statements of fact, and causing hurt feelings to various scholars, all of which are protected by the First Amendment. These convictions render the statutes void for vagueness, without a limiting construction from this Court. (McIntyre v Ohio Elections Comm’n, 514 US 334; People v Briggins, 50 NY2d 302; Carpenter v United States, 484 US 19; Kolender v Lawson, 461 US 352; Smith v Goguen, 415 US 566; Ashton v Kentucky, 384 US 195; Layshock ex rel. Layshock v Hermitage School Dist., 650 F3d 205; People v Kase, 76 AD2d 532; Hustler Magazine, Inc. v Falwell, 485 US 46.) II. The communications that are the subject of counts 3, 40, and 48 are protected by the First Amendment and cannot be criminalized; doing so would render Penal Law § 240.30 (1) unconstitutionally vague and overbroad. (People v Smith, 89 Misc 2d 789; People v Dupont, 107 AD2d 247; Papish v Board of Curators of Univ. of Mo., 410 US 667; People v Dietze, 75 NY2d 47; People v Bethea, 1 Misc 3d 909[A], 2004 NY Slip Op 50007[U]; People v Singh, 187 Misc 2d 465; People v Kochanowski, 186 Misc 2d 441, 95 NY2d 965.) III. Defendant was convicted of a crime based exclusively upon his violating a terms of service agreement with New York University. Applying Penal Law § 156.05 to criminalize such violations renders the statute unconstitutionally vague. (Chicago v Morales, 527 US 41.)

      Cyrus R. Vance, Jr., District Attorney, New York City (Vincent Rivellese and Alan Gadlin of counsel), for respondent.
    I. The trial court properly instructed the jury on the elements of the charged crimes. Those instructions ensured that the convictions did not violate defendant’s First Amendment right to free speech. (People v Hills, 95 NY2d 947; People v Samuels, 99 NY2d 20; People v Ladd, 89 NY2d 893; People v Coleman, 70 NY2d 817; People v Dory, 59 NY2d 121; People v Dym, 163 AD2d 150; People v Radcliffe, 232 NY 249; People v Ease, 76 AD2d 532, 53 NY2d 989; People v Taylor, 14 NY3d 727; United States v Williams, 553 US 285.) II. The aggravated harassment counts were constitutionally applied to defendant because the convictions did not criminalize defendant’s beliefs or his speech; they criminalized his conduct. (United States v Williams, 553 US 285; People v Shack, 86 NY2d 529; People v Nelson, 69 NY2d 302; United States v Petrillo, 332 US 1; Maynard v Cartwright, 486 US 356; Boyce Motor Lines, Inc. v United States, 342 US 337; Broadrick v Oklahoma, 413 US 601; Gooding v Wilson, 405 US 518; People v Smith, 89 Misc 2d 789; People v Johnson, 208 AD2d 1051.) III. Defendant was properly convicted of unauthorized use of a computer for using New York University’s computers to commit crimes; Penal Law § 156.05 was not vague as applied to defendant. (United States v Williams, 553 US 285; People v Shack, 86 NY2d 529; People v Nelson, 69 NY2d 302; Maynard v Cartwright, 486 US 356; Boyce Motor Lines, Inc. v United States, 342 US 337; Ratzlaf v United States, 510 US 135.)

      Law Office of Marc Fernich, New York City (Marc Fernich of counsel), for National Association of Criminal Defense Lawyers and another, amici curiae.
    The definitions of “fraud,” “benefit” and “injury” should be limited to tangible, monetary or legal benefits and harms to avoid unconstitutional vagueness, vindicate the legislative purpose and implement existing case law. (People v Swift, 278 AD2d 110; People v Calderon, 143 Misc 2d 315; Tracy v Freshwater, 623 F3d 90; People v Bentley, 78 Misc 2d 578; Russo v State of New York, 672 F2d 1014; People v Nawrocki, 163 AD2d 887; People v Chive, 189 Misc 2d 653; People v Turner, 234 AD2d 704; People v Hooks, 71 AD3d 1184.)
   OPINION OF THE COURT

Abdus-Salaam, J.

University of Chicago Professor Norman Golb is a scholar of the Dead Sea Scrolls. This case involves an Internet campaign by Golb’s son, Raphael Golb, to attack the integrity and harm the reputation of other Dead Sea Scrolls academics and scholars, while promoting the views of his father.

To accomplish his goal of discrediting and harming these individuals, defendant, using pseudonyms and impersonating real academics and scholars, sent emails to museum administrators, academics and reporters. He published anonymous blogs. He concocted an elaborate scheme in which he used a pseudonym to engage one professor in an email exchange, and then impersonated a different scholar to criticize that professor’s emails. Defendant impersonated a New York University (NYU) professor and sent emails to NYU students and NYU deans indicating that the professor had plagiarized the work of Professor Golb.

A New York County grand jury charged defendant with 51 counts of identity theft, criminal impersonation, forgery, aggravated harassment and unauthorized use of a computer. He proceeded to a jury trial, where 31 counts were submitted for the jury’s consideration. The jury convicted on 30 counts: two counts of identity theft in the second degree; 14 counts of criminal impersonation in the second degree; 10 counts of forgery in the third degree; three counts of aggravated harassment in the second degree; and one count of unauthorized use of a computer. Defendant was sentenced to six months in jail and five years of probation on the identity theft counts and to concurrent lesser terms on the remaining counts. The Appellate Division modified the Supreme Court judgment to the extent of vacating the identity theft conviction in the first count of the indictment and dismissing that count, and otherwise affirming the judgment (102 AD3d 601 [1st Dept 2013]). A Judge of this Court granted defendant leave to appeal (20 NY3d 1099 [2013]). For the reasons that follow, we affirm the convictions for nine counts of criminal impersonation in the second degree and all of the convictions for forgery. We vacate the conviction for identity theft in the second degree; five of the convictions for criminal impersonation in the second degree; all of the convictions for aggravated harassment in the second degree, and the conviction for unauthorized use of a computer.

I.

The Dead Sea Scrolls and Defendant’s Internet Campaign

As was explained at the trial, the Dead Sea Scrolls are a collection of ancient religious writings dating from the second and third century B.C.E. to the first century C.E. They were discovered in 1948 in caves near Qumran, in the West Bank. Norman Golb, defendant’s father, is a professor at the University of Chicago, and a scholar on the subject of the Scrolls. There is disagreement among scholars and experts about who wrote the Scrolls. One view, known as the Qumran-Sectarian theory, or Sectarian theory, is that the Scrolls were writings of a Jewish sect, living in or near Qumran.

Norman Golb and others disagree with the Qumran-Sectarian theory. They believe that the Scrolls were writings of various groups and that the writings were rescued from libraries in Jerusalem and brought to the caves for safekeeping at the time of the siege and sacking of the city by Roman troops in 70 C.E. (the Jerusalem libraries theory). Professor Golb challenges the Qumran-Sectarian theory as unsupported by any actual evidence. In his 1995 book, Who Wrote the Dead Sea Scrolls?, Professor Golb discusses not only the history of Scroll research, but criticizes what he believes to be unethical research practices regarding the Scrolls.

Beginning in September 2006, the Dead Sea Scrolls became the subject of a series of museum exhibits. Defendant engaged in an Internet campaign to criticize those involved in the exhibits because, in defendant’s opinion, the exhibits did not present his father’s theories about the origin of the Scrolls. One of defendant’s targets was Robert Cargill, who at the time was a graduate student at the University of California in Los Angeles (UCLA) working toward his Ph.D. in near eastern languages and culture. Cargill had published on the topic of the Scrolls. In 2007, the Scrolls were put on exhibit at the San Diego Natural History Museum. For use at that exhibit, Cargill created a digital movie called “Ancient Qumran,” which was a silent tour of the site where the Scrolls were discovered, and he wrote a script to be read in conjunction with the movie. The script did not describe Professor Golb’s view of the Scrolls’ origins.

Using pseudonyms, defendant sent emails to UCLA media addresses including newsmedia.ucla.edu, a UCLA professor, Cargill’s doctoral advisor, many other “ucla.edu” addresses, and an entertainment company with which Cargill had signed a contract, criticizing Cargill and questioning his scholarship. Cargill testified that everyone in his department, people in the press room, the Provost of UCLA, and his dean asked him “what the hell is going on, what is this all about?” On a number of occasions, defendant used an anonymous blog to post his grievances about the San Diego exhibit and the Cargill movie.

When the Dead Sea Scrolls exhibit moved to Raleigh, North Carolina, defendant targeted Stephen Goranson, a library clerk at Duke University who had published articles on the Scrolls. Goranson disagreed with Professor Golb’s theories and criticized them in public Internet forums. In July 2008, writing as “Peter Kaufman, Ph.D.,” defendant separately emailed the Provost and the President of Duke University, as well as Goranson’s supervisor at the library, complaining about Goranson’s purported Internet attacks on Professor Golb and suggesting that they consider whether this conduct was appropriate for a Duke employee. The Provost responded that a supervisor was speaking to Goranson and advising him of his obligations. Defendant also created an email account under the name of “steve.goransongmail.com.”

Defendant also undertook an elaborate scheme involving the impersonation of Dead Sea Scrolls scholar and retired Harvard Professor Frank Cross. The first layer of the scheme was to assume the pseudonym of “Jerome Cooper” to engage in an email exchange with University of North Carolina Professor Bart Ehrman (who had been slated to lecture at the Raleigh exhibit) about the origin of the Scrolls. Defendant then anonymously published a blog denouncing the selection of Ehrman as lecturer and publishing the emails from Professor Ehrman to “Jerome Cooper,” which defendant said Cooper had been “good enough to forward to me.” Defendant’s next step was to create the email address “frank.cross2gmail.com” and send four separate but identical messages to four University of North Carolina scholars. In those emails from the “Frank Cross” email address, defendant attached links to his anonymous blog entries containing Ehrman’s emails, and stated that “Bart” had “put his foot in his mouth again.” He signed those emails “Best, Frank Cross.”

The Scrolls were put on exhibit at the Jewish Museum in New York City in the fall of 2008, and NYU Professor Lawrence Schiffman was scheduled as a lecturer. Defendant used the pseudonym “Peter Kaufman” to publish an article about Schiffman on the social news website NowPublic entitled “Plagiarism and the Dead Sea Scrolls: Did NYU department chairman pilfer from Chicago historian’s work?” Defendant as “Kaufman” wrote of a “little-known case of apparent academic quackery.” He complained of Schiffman’s failure to credit Professor Golb for ideas expressed in Schiffman’s articles about the Scrolls, and Schiffman’s repeated plagiarisms of Golb’s work.

Using NYU computers, defendant sent emails from another account he created — “larry.schiffmangmail.com”—to four of Schiffman’s students and multiple NYU addresses of Schiffman’s colleagues that included a link to the article. The emails stated, among other things, that “someone is intent on exposing a minor failing of mine that dates back almost fifteen years ago” and that “[t]his is my career at stake.” He signed those emails “Lawrence Schiffman.” Additionally, defendant sent identical emails from the Schiffman email address to the Provost of NYU and the Dean of NYU Graduate School of Arts and Science. Defendant, as Schiffman, asked what action he could take “to counter charges of plagiarism that have been raised against me” and stated:

“Apparently, someone is intent on exposing a failing of mine that dates back almost fifteen years ago. It is true that I should have cited Dr. Golb’s articles when using his arguments, and it is true that I misrepresented his ideas. But this is simply the politics of Dead Sea Scrolls studies. If I had given credit to this man I would have been banned from conferences around the world.”

He signed those emails “Lawrence Schiffman, professor.”

NYU’s Senior Vice Provost responded to this email, stating that he had assigned the matter to a dean for further investigation. Defendant, as “Schiffman,” forwarded that email from the Vice Provost (including defendant’s email to the Provost) to five NYU school newspaper email addresses, asking that they not mention this matter and stating that his “career is at stake.” He signed those emails “Lawrence Schiffman.”

In the fall of 2008, the Scrolls exhibit was scheduled to move to the Royal Ontario Museum (ROM) in Toronto. Dr. Jonathan Seidel, a rabbi in Oregon and a professor of Judaic studies at the University of Oregon, had studied with Professor Schiffman at NYU. Defendant created the email address “seidel.jonathangmail.com” and sent an email to the Board of Trustees at the ROM, blind copying numerous other individuals at the museum. That email, among other things, included links to articles concerning the San Diego exhibition of the Scrolls and criticism by Professor Golb of the exhibit, which was curated by Dr. Risa Levitt Kohn, the same individual who was curating the exhibit at the ROM. The email stated that “the San Diego exhibitors set out to confuse the public” and described a quoted statement from Dr. Kohn defending the exhibit which she had curated as “shockingly obscurantist ... for someone involved in creating a museum exhibit at the ROM.” He signed those emails “With best regards, Jonathan Seidel.”

Using the Seidel email address, defendant also sent an email to Dr. Kohn. It contained a link to defendant’s (anonymous) blog about Dr. Kohn and Michael Hager, the director of the San Diego museum where the Scrolls had been exhibited. The blog pointed out that Hager had been defending Dr. Kohn and the San Diego exhibit. It criticized Hager and Kohn, and pointed out that Professor Golb had subjected the San Diego exhibit to a “searing critique.” The email sought Dr. Kohn’s opinion on the two theories about the Scrolls and asked if she was planning to answer Professor Golb’s critique. It was signed “With best wishes, Jonathan Seidel.”

The same day that he sent the email to Dr. Kohn, defendant sent another email from “Seidel” to 79 Dead Sea Scrolls scholars, asking for help in preparing a response to misinformation which was being spread around the Internet. He included a link to his anonymous blog, and a link and a quotation from an article in the French newspaper Le Monde, which defendant (as Seidel) stated was “outrageous.” The quote from Le Monde was that “[t]he connection between the Essenes, who were thought to have written the scrolls, and Qumran has been reduced to nothing, just as the major American historian and paleographer N. Golb had already written.” The email stated that “[tjhese lies about the Chicago filth must be answered as quickly as possible, so please let me know if you’re willing to help out . . . .” In contrast to his email to Dr. Kohn, which promoted the Golb theory, this email appears to be calling Professor Golb “Chicago filth.” It was signed “Best, Jonathan S.” Defendant also used the Seidel email address to contact approximately 85 individuals, many of whom had university email addresses, urging them to “condemn the continuing filth from Chicago, just as Dr. Stephen Goranson of Duke University has had the courage to do.” That too was signed “Best, Jonathan S.”

IL

Criminal Impersonation in the Second Degree

Defendant was convicted of 14 counts of criminal impersonation in the second degree. A person is guilty of this crime when he or she “[impersonates another and does an act in such assumed character with intent to obtain a benefit or to injure or defraud another” (Penal Law § 190.25 [1]). The criminal impersonation counts related to defendant’s actions against Schiffman, Goranson, Seidel and Cross. Although requested to do so by defendant, the trial court did not limit the statutory terms “benefit” or “injure” in its charge to the jury. The Appellate Division held that “[t]he court was under no obligation to limit the definitions of ‘injure’ or ‘defraud’ — terms used in the forgery and criminal impersonation statutes — to tangible harms such as financial harm” (102 AD3d at 602, citing People v Kase, 76 AD2d 532, 537-538 [1st Dept 1980], affd 53 NY2d 989 [1981]). Defendant maintains that the trial court’s failure to properly limit and define the terms “injure” and “benefit” constituted reversible error because the jury could have interpreted the statute as capturing any benefit or harm. Thus, argues defendant, when literally anything can be a legally cognizable benefit or harm, one can be found guilty of violating this law if one, for example, simply causes hurt feelings, mocks or criticizes. Similarly, says defendant, a benefit could be any gain or advantage, no matter how slight.

Cases applying Penal Law § 190.25 have traditionally involved monetary fraud or interference with government operations (see e.g. People v Sanchez, 84 NY2d 440 [1994] [impersonation of an FBI agent]; People v Hooks, 71 AD3d 1184 [3d Dept 2010] [after damaging victim’s vehicle, defendant called police station, identifying herself as victim, informing them that she did not want to press charges]; People v Nawrocki, 163 AD2d 887 [4th Dept 1990] [defendant used his brother’s name, Social Security number and employment status to apply for and receive a loan from a finance company]; People v Chive, 189 Misc 2d 653 [2001] [conviction for falsely identifying oneself to police and possession of an altered passport]; People v Bentley, 78 Misc 2d 578 [1974] [woman signed a false name to a supermarket cash register receipt]; People v Diamond, 77 Misc 2d 412 [1974] [conviction for seeking to avoid an arrest by impersonating a transit authority conductor]). The Appellate Division cited People v Kase (76 AD2d 532 [1st Dept 1980], affd 53 NY2d 989 [1981]) in support of its holding that “injure” and “defraud” are not limited to tangible harms such as financial harms involved in the filing of a false instrument. There, Kase argued that Penal Law § 190.25 did not apply where the People had not demonstrated that there had been a pecuniary loss to the State, and the court disagreed, finding that it is sufficient if the fraud impacts the State’s power to fulfill its governmental responsibilities (id. at 537).

Here, defendant did not cause any pecuniary loss or interfere with governmental operations. While we agree with defendant that the statutory terms “injure” and “benefit” cannot be construed to apply to any injury or benefit, no matter how slight, we conclude that injury to reputation is within the “injury” contemplated by Penal Law § 190.25. Many people, particularly with a career in academia, as relevant to this case, value their reputations at least as much as their property, and we believe the legislature intended that the scope of the statute be broad enough to capture acts intended to cause injury to reputation.

Accordingly, a person may be found guilty of criminal impersonation in the second degree if he or she impersonates another with the intent to cause a tangible, pecuniary injury to another, or the intent to interfere with governmental operations (see e.g. People v Hooks, 71 AD3d 1184 [3d Dept 2010]; People v Nawrocki, 163 AD2d 887 [4th Dept 1990]). In addition, a person who impersonates someone with the intent to harm the reputation of another may be found guilty of this crime. Here, there was sufficient evidence to support the jury’s finding that defendant’s emails impersonating Schiffman, Seidel and Cross were more than a prank intended to cause temporary embarrassment or discomfiture, and that he acted with intent to do real harm.

While we affirm most of the criminal impersonation convictions, we hold that the mere creation of email accounts in the names of Schiffman, Seidel, Goranson and Cross (in contrast to the use of those accounts to send emails) does not constitute criminal conduct under Penal Law § 190.25. The mere creation of email accounts that are not used does no substantial harm to anyone. Additionally, the email sent from the Seidel email address to Dr. Kohn, asking her opinion on the differing theories about the Scrolls and whether she was planning to answer Professor Golb’s critique, is insufficient to support a conviction for criminal impersonation in the second degree. Unlike the other emails, this email sent in another person’s name does not prove the requisite intent to cause injury, either to reputation or otherwise. Thus, we vacate the convictions on those counts.

III.

Aggravated Harassment in the Second Degree

Penal Law § 240.30 (1) (a) provides that “[a] person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, threaten or alarm another person, he or she . . . communicates with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm.” We agree with defendant that this statute is unconstitutionally vague and overbroad, and that his conviction of three counts of aggravated harassment related to his conduct toward Schiffman, Goranson and Cargill must be vacated.

In People v Dietze (75 NY2d 47 [1989]), this Court struck down a similar harassment statute, former Penal Law § 240.25, which prohibited the use of abusive or obscene language with the intent to harass, annoy or alarm another person. We determined that the statute was unconstitutional under both the State and Federal Constitutions, noting that “any proscription of pure speech must be sharply limited to words which, by their utterance alone, inflict injury or tend naturally to evoke immediate violence” (id. at 52).

The reasoning applied in Dietze applies equally to our analysis of Penal Law § 240.30 (1) (a). The statute criminalizes, in broad strokes, any communication that has the intent to annoy. Like the harassment statute at issue in Dietze, “no fair reading” of this statute’s “unqualified terms supports or even suggests the constitutionally necessary limitations on its scope” (id. at 52; see also People v Dupont, 107 AD2d 247, 253 [1st Dept 1985] [observing that the statute’s vagueness is apparent because “(i)t is not clear what is meant by communication ‘in a manner likely to cause annoyance or alarm’ to another person”]). And, as in Dietze, “we decline to incorporate such limitations into the statute by judicial construction” because that would be “tantamount to wholesale revision of the Legislature’s enactment, rather than prudent judicial construction” (id. at 52, 53).

Three federal judges have already found this statute unconstitutional (see Vives v City of New York, 305 F Supp 2d 289, 299 [SD NY 2003, Scheindlin, J.], revd on other grounds 405 F3d 115 [2d Cir 2005] [“where speech is regulated or proscribed based on its content, the scope of the effected speech must be clearly defined”]; see also Vives, 405 F3d 115, 123-124 [2d Cir 2005, Cardamone, J., dissenting in part, concurring in part] [Penal Law § 240.30 (1) unconstitutional on its face and as applied]; Schlagler v Phillips, 985 F Supp 419, 421 [SD NY 1997, Brieant, J.], revd on other grounds 166 F3d 439 [2d Cir 1999] [statute is “utterly repugnant to the First Amendment of the United States Constitution and also unconstitutional for vagueness”]).

Accordingly, we conclude that Penal Law § 240.30 (1) is unconstitutional under both the State and Federal Constitutions, and we vacate defendant’s convictions on these counts.

IV

The Convictions for Forgery in the Third Degree, Identity Theft in the Second Degree and Unauthorized Use of a Computer

“A person is guilty of forgery in the third degree when, with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument” (Penal Law § 170.05). There was sufficient evidence to show that defendant deceived people by sending emails from accounts in the names of Schiffman, Seidel and Cross, and accordingly we affirm his convictions on those counts.

However, we vacate the convictions on the remaining counts of unauthorized use of a computer and identity theft in the second degree. Under Penal Law § 156.05, “[a] person is guilty of unauthorized use of a computer when he or she knowingly uses, causes to be used, or accesses a computer, computer service, or computer network without authorization.” The term “without authorization” is defined as “to access a computer . . . without the permission of the owner ... or after actual notice to such person that such use or access was without permission . . . .” (Penal Law § 156.00 [8].)

Defendant asserts that he had permission to access the NYU computers as an alumnus who joined the “Friends of Bobst Library Program.” The People argue that using the computer to commit a crime cannot be an authorized use. However, the definitions and wording of the statute and the legislative history indicate that the statute is intended to reach a person who accesses a computer system without permission (i.e., a hacker) and the language does not appear to encompass defendant’s conduct here. “[I]f two constructions of a criminal statute are plausible, the one more favorable to the defendant should be adopted in accordance with the rule of lenity” (People v Green, 68 NY2d 151, 153 [1986] [internal quotation marks and citation omitted]). Thus, the People did not sustain their burden of proof that defendant was guilty of unauthorized use of the NYU computers, and we therefore vacate defendant’s conviction under Penal Law § 156.05.

Lastly, as pertinent here, a person commits identity theft in the second degree “when he or she knowingly and with intent to defraud assumes the identity of another person by presenting himself or herself as that other person, or by acting as that other person or by using personal identifying information of that other person, and thereby” “commits or attempts to commit a felony” (Penal Law § 190.79 [3]). The attempted felony at issue here is first-degree falsifying of the business records of NYU. That crime is committed when a person “commits the crime of falsifying business records in the second degree, and when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof’ (Penal Law § 175.10). According to the People, defendant sought to falsify NYU business records by manufacturing a subtle admission of plagiarism purportedly from Schiffman, with the intent that NYU would open an investigation of Schiffman. Although defendant sent damning emails in Schiffman’s name to NYU addresses, that does not constitute the creation or falsification of an NYU business record that is “kept or maintained by an enterprise for the purpose of evidencing or reflecting its condition or activity” and the People have not pointed to any proof that defendant falsified any such records (Penal Law § 175.00 [2]). Because there is insufficient evidence to support this conviction, it must be vacated.

Accordingly, the order of the Appellate Division should be modified by vacating the convictions for counts 2, 3, 5, 23, 29, 40, 42, 44, 48, and 51, dismissing those counts of the indictment, and remitting to Supreme Court for resentencing, and, as so modified, affirmed.

Chief Judge Lippman

(concurring in part and dissenting in part). It would be difficult to find the conduct by defendant detailed in the majority opinion admirable. But our very different task is to decide whether that conduct was properly treated as criminal. While I see no constitutional impediment to prosecuting conduct similar to defendant’s targeting Professor Schiffman as second degree identity theft — which requires for its proof evidence of intent to cause highly specific injury of a nonreputational sort — the particular counts of identity theft with which defendant was charged in the indictment’s top two counts were not sufficiently proved.

Turning to the remaining welter of convictions — all for misdemeanors — I agree with the majority that defendant’s convictions for aggravated harassment must be vacated and the corresponding counts of the indictment dismissed, since the statute under which those convictions were obtained, Penal Law § 240.30 (1) (a), is unconstitutionally overbroad. I also agree that there was a failure of proof as to whether defendant’s use of NYU computers was unauthorized within the meaning of Penal Law § 156.05. I, however, part company with the majority as to its dismissal of only some of the indictment’s criminal impersonation counts and its determination to leave defendant’s third-degree forgery convictions undisturbed.

In dismissing some, but not all, of the second-degree criminal impersonation (Penal Law § 190.25) counts, the majority expresses the view that, in addition to addressing impersonation intended to cause economic injury or to interfere with government operations — the objectives traditionally understood to inform the misdemeanor — the crime may also be premised on an intent to cause reputational injury. The statute, the majority holds, should be read to protect reputation when more than a prank is involved, since many people value reputation more than money, and since, as lago in a moment of famous irony remarks to Othello, “he that filches from me my good name Robs me of that which not enriches him And makes me poor indeed.” There is, of course, nothing in the language of the statute to prevent its use in the manner proposed by the majority— but that is the problem. The statute, as written, allows a criminal conviction for impersonation provided only that it is meant to be harmful or beneficial in any way. It is hard to imagine any pseudonymous communication that could not be prosecuted under this statute. And, in an age in which pseudonymous communication has become ubiquitous, particularly on the Internet, this statute, literally understood, criminalizes a vast amount of speech that the First Amendment protects.

The problem of the statute’s substantial overbreadth is not obviated by the Court’s pronouncement that the enactment should not be understood to criminalize conduct not intended to cause “real harm.” Apart from the fact that the distinction the majority has drawn does not render the statute benign, since many things said using an assumed identity are constitutionally protected from civil or criminal sanction, even though they are more than pranks and are intended to cause real harm or to obtain real benefit, this prosecution’s use of the statute was not limited in the way the Court now says it should have been.

Although defendant, after the denial of his motion to dismiss on the ground, among others, of statutory overbreadth, sought to have the jury charged so as to limit the statute’s reach, the trial court’s charge did not do that and there is no basis now to suppose that the convictions at issue were rendered in observance of the distinction this Court has retrospectively drawn; five of the criminal impersonation convictions concededly were not, and it is entirely speculative that the remaining nine were.

The problem with the criminal impersonation convictions is not that they were insufficiently supported. The evidence as to each of the counts was more than adequate to prove the offense as defined in the statute and as charged. The reason that the convictions must be vacated and the corresponding counts dismissed is rather that the statute under which they were obtained is unconstitutionally broad, and substantially so.

The use of the third-degree forgery statute (Penal Law § 170.05) to the same end as the criminal impersonation statute is, I believe, similarly objectionable. Treating pseudonymous emails as forgeries when they are made with some intent to “injure” in some undefined way is no different than penalizing impersonation in Internet communication for the same amorphous purpose. Both treatments give prosecutors power they should not have to determine what speech should and should not be penalized.

If defendant has caused reputational injury, that is redress-able, if at all, as a civil tort, not as a crime. Criminal libel has long since been abandoned (see Garrison v Louisiana, 379 US 64, 69 [1964]), not least of all because of its tendency in practice to penalize and chill speech that the constitution protects (see Ashton v Kentucky, 384 US 195, 200-201 [1966]), and it has been decades since New York’s criminal libel statute was repealed. The use of the criminal impersonation and forgery statutes now approved amounts to an atavism at odds with the First Amendment and the free and uninhibited exchange of ideas it is meant to foster.

I would dismiss the indictment in its entirety.

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

Order modified by vacating the conviction on counts 2, 3, 5, 23, 29, 40, 42, 44, 48 and 51 of the indictment, dismissing those counts of the indictment, and remitting the case to Supreme Court, New York County, for resentencing and, as so modified, affirmed.

      . B.C.E. (Before the Common Era) and C.E. (the Common Era) are the equivalent of B.C. and A.D., respectively.

      . “Good name in man and woman, dear my lord,
      Is the immediate jewel of their souls.

        Who steals my purse steals trash. ’Tis something, nothing:
      ’Twas mine, ’tis his, and has been slave to thousands.
      But he that filches from me my good name
      Robs me of that which not enriches him
      And makes me poor indeed.” (Shakespeare, Othello, act III, scene 3.)

       It is difficult to imagine, for example, that an ill-intended, pseudonymously uttered comment about lago or his modern equivalent would be actionable civilly, much less criminally.


author: Graffeo, J.

text:
    [15 NE3d 333, 991 NYS2d 578]
    Rhonda Wittorf, Appellant, v City of New York, Respondent.
    Argued April 30, 2014;
    decided June 5, 2014

      POINTS OF COUNSEL

      Sullivan Papain Block McGrath & Cannavo P.C., New York City (Brian J. Shoot of counsel), and Dansker & Aspromonte Associates (Paul Dansker of counsel) for appellant.
    I. Contrary to what the City of New York argued below, determination of whether conduct is “governmental” or “proprietary” has always turned on both the nature of the act or omission claimed to give rise to liability and the capacity in which that act or failure to act occurred. (Sebastian v State of New York, 93 NY2d 790; Miller v State of New York, 62 NY2d 506; Riss v City of New York, 22 NY2d 579; Valdez v City of New York, 18 NY3d 69; Balsam v Delma Eng’g Corp., 90 NY2d 966; Applewhite v Accuhealth, Inc., 21 NY3d 420; Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428, 18 NY3d 898; Weiner v Metropolitan Transp. Auth., 55 NY2d 175; Crosland v New York City Tr. Auth., 68 NY2d 165.) II. The case law that was cited in support of the City of New York’s claims of immunity was plainly inapt inasmuch as all of those cases involved (a) alleged negligence on the part of police officers or in failing to provide police protection or (b) conduct that had nothing to do with traffic, roadway repairs, roadway design, or roadway maintenance. (Balsam v Delma Eng’g Corp., 90 NY2d 966; McLean v City of New York, 12 NY3d 194; Lauer v City of New York, 95 NY2d 95; Tango v Tulevech, 61 NY2d 34; Motyka v City of Amsterdam, 15 NY2d 134; Kadymir v New York City Tr. Auth., 55 AD3d 549; Kovit v Estate of Hallums, 4 NY3d 499; Sorrentino v Mayerson, 82 AD3d 955; Lewis v City of New York, 82 AD3d 410, 16 NY3d 713; Santos v County of Westchester, 81 AD3d 710.) III. Highway maintenance, highway repair, provision of appropriate warning of roadway hazards, and even highway design have always been deemed “proprietary” activities where, as here, the conduct claimed to give rise to liability was performed by highway personnel or planners and not by police officers. (Stiuso v City of New York, 87 NY2d 889; Lopes v Rostad, 45 NY2d 617; Friedman v State of New York, 67 NY2d 271; Gutelle v City of New York, 55 NY2d 794; Oeters v City of New York, 270 NY 364; Missano v Mayor of City of N.Y., 160 NY 123; Ehrgott v Mayor of City of N.Y., 96 NY 264; Weiss v Fote, 7 NY2d 579; Affleck v Buckley, 96 NY2d 553.) IV Traffic control, including the control of traffic at and around roadway work sites and even including traffic design, has itself always been deemed “proprietary” except in those instances in which the conduct claimed to give rise to liability was performed by police officers or police-type personnel. (Kovit v Estate of Hallums, 4 NY3d 499; Balsam v Delma Eng’g Corp., 90 NY2d 966; Ernest v Red Cr. Cent. School Dist., 93 NY2d 664; Scheemaker v State of New York, 70 NY2d 985; Parsons v City of New York, 248 App Div 825, 273 NY 547; Cleveland v Town of Lancaster, 239 App Div 263, 264 NY 568; Alexander v Eldred, 63 NY2d 460; Eastman v State of New York, 303 NY 691; Foley v State of New York, 294 NY 275; Nowlin v City of New York, 81 NY2d 81.) V Negligent direction to proceed into or across a place of danger has itself always been deemed actionable, “proprietary” conduct except when performed by police or police-type personnel. (Kovit v Estate of Hallums, 4 NY3d 499; Glanzer v Shepard, 233 NY 236; Kievman v Philip, 84 AD3d 1031; Ohlhausen v City of New York, 73 AD3d 89; Yau v New York City Tr. Auth., 10 AD3d 654; Thrane v Haney, 264 AD2d 926; Robbins v New York City Tr. Auth., 105 AD2d 616; Riley v Board of Educ. of Cent. School Dist. No. 1, 15 AD2d 303; Dolce v Cucolo, 106 AD3d 1431.) VI. There are no convincing policy reasons why an immunity arising from the acknowledged scarcity of police resources should now be extended to a factual context that does not even remotely involve allocation of police resources or, for that matter, allocation of any resources. (Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428; Balsam v Delma Eng’g Corp., 90 NY2d 966; Missano v Mayor of City of N.Y., 160 NY 123; Ehrgott v Mayor of City of N.Y., 96 NY 264; Weiss v Fote, 7 NY2d 579, 10 NY2d 886.)

      Michael A. Cardozo, Corporation Counsel, New York City (Ronald E. Sternberg and Leonard Koerner of counsel), for respondent.
    The Appellate Division correctly concluded that the city is immune from liability pursuant to the governmental function immunity defense. (Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428; Applewhite v Accuhealth, Inc., 21 NY3d 420; Maccarello v County of Suffolk, 100 AD3d 972; Miller v State of New York, 62 NY2d 506; Valdez v City of New York, 18 NY3d 69; Balsam v Delma Eng’g Corp., 90 NY2d 966; Devivo v Adeyemo, 70 AD3d 587; Stashkevetch v City of New York, 106 AD3d 483; Lewis v City of New York, 82 AD3d 410, 16 NY3d 713; Santos v County of Westchester, 81 AD3d 710.)

      Robert F. Danzi, New York City, and Michael S. Buskus for New York State Trial Lawyers Association, amicus curiae.
    I. Repairing roads is a “proprietary,” rather than “governmental,” activity. (People ex rel. Wauful v Reel, 157 App Div 128; Sutherland v Skene, 142 App Div 162; Town of Huntington v County of Suffolk, 79 AD3d 207, 17 NY3d 778; Ireland v Oswego, Hannibal & Sterling Plank Rd. Co., 13 NY 526; Eggleston v Columbia Turnpike Road, 82 NY 278; Hill v Supervisors of Livingston County, 12 NY 52; People ex rel. Van Keuren v Town of Esopus, 74 NY 310; Hutson v Mayor of City of N.Y., 9 NY 163; Conrad v Village of Ithaca, 16 NY 158; Nelson v Village of Canisteo, 100 NY 89.) II. The duty to maintain roads in safe condition applies in favor of bicyclists. (Redcross v State of New York, 241 AD2d 787, 91 NY2d 801; Baker v Nassau County Police Activity League, 265 AD2d 515; Cotty v Town of Southampton, 64 AD3d 251; Phillips v County of Nassau, 50 AD3d 755; Caraballo v City of Yonkers, 54 AD3d 796, 13 NY3d 788; Cruz v City of New York, 201 AD2d 606; Garrow v State of New York, 268 App Div 534, 294 NY 741; Collett v Mayor, 51 App Div 394; Schell v Town of German Flats, 54 Misc 445, 123 App Div 197; Vestal v County of Suffolk, 7 AD3d 613.) III. The “police” cases do not apply to the repair of highways or the posting of warnings or barricades around work sites. (Balsam v Delma Eng’g Corp., 90 NY2d 966; Rogers v State of New York, 288 AD2d 926; Matter of Schleider v State of New York, 5 AD3d 1052, 3 NY3d 607; Lynch v State of New York, 37 AD3d 772; DiFlorio v Worden, 303 AD2d 924; Stashkevetch v City of New York, 106 AD3d 483; Thompson v City of New York, 78 NY2d 682; Rindfleisch v State of New York, 59 Misc 2d 1074; Harvey v New York State Thruway Auth., 59 Misc 2d 1079; Saari v State of New York, 203 Misc 859.) IV The City of New York utterly failed to meet the advance warning requirements for construction work that are imposed by federal, state and city regulations. (Lyle v State of New York, 44 AD2d 239; Zecca v State of New York, 247 AD2d 776; Patti v State of New York, 217 AD2d 882; McDevitt v State of New York, 1 NY2d 540; Piragnoli v State of New York, 280 App Div 849;
      People v Zambito, 21 Misc 2d 815; Miller v United States, 710 F2d 656; Redcross v State of New York, 241 AD2d 787; Belonzi v Town of Brookhaven, 227 AD2d 361; Collins v City of New York, 105 AD3d 631.) V. The prior written notice pothole law does not apply to warning sign or barricade cases. (Hughes v Jahoda, 75 NY2d 881; Alexander v Eldred, 63 NY2d 460; Hubbard v County of Madison, 93 AD3d 939, 19 NY3d 805; Boucher v Town of Candor, 234 AD2d 669; Brabender v Incorporated Vil. of Northport, 222 AD2d 477; Rhodes v Bauer, 173 AD2d 452; Adams v Town of Lisbon, 170 AD2d 901; Heard v City of New York, 82 NY2d 66; Balsam v Delma Eng’g Corp., 90 NY2d 966.)
   OPINION OF THE COURT

Graffeo, J.

We are asked in this case if the City of New York was engaged in a proprietary function at the time of plaintiffs bicycle accident in order to determine if the jury properly evaluated the City’s actions under ordinary negligence principles.

On the morning of November 5, 2005, Donald Bowles, a supervisor with the Department of Transportation for the City of New York, and his crew arrived at the east entrance of Central Park’s 65th Street transverse to repair a roadway defect. The crew closed the east entrance to the transverse and then proceeded westbound. As they drove through an underpass, Bowles observed the problem they had been sent to correct — a series of deep depressions in the westbound lane. Having located the area in need of repair, Bowles went to the west entrance of the 65th Street transverse to close it to vehicular traffic by placing traffic cones across the roadway.

As Bowles was placing the cones, plaintiff Rhonda Wittorf and Brian Hoberman arrived at the west entrance on bicycles. Hoberman approached Bowles and asked if they could use the roadway and Bowles replied that it was “okay to go through.” As plaintiff and Hoberman rode along the transverse, they entered the underpass where the depressions were located. Because of darkness in the tunnel, plaintiff did not see one of the depressions until she was almost upon it. When she attempted to avoid the hole, she encountered another, fell and was injured.

Plaintiff commenced this personal injury action against defendant City of New York (the City) seeking to recover for her injuries. After trial, a jury determined that the roadway where plaintiffs accident occurred was not in a reasonably safe condition, but that the City could not be held liable for the defect because it did not receive written notice of the condition at least 15 days prior to the accident, as required by the Pothole Law (Administrative Code of City of NY § 7-201 [c] [2]). The jury also found that the City did not cause or create the condition by an affirmative act of negligence. It did, however, conclude that Bowles was negligent in permitting plaintiff and her companion to enter the 65th Street transverse and that such negligence was a substantial factor in causing her injuries. In considering comparative negligence, the jury apportioned fault at 40% to plaintiff and 60% to the City.

The City moved to set aside the verdict, alleging that Bowles was engaged in a governmental function at the time of the accident thereby entitling it to judgment as a matter of law or, alternatively, to set aside the verdict as against the weight of the evidence. Supreme Court granted the motion and dismissed the complaint, agreeing with the City that Bowles was performing a governmental function when he closed the transverse to vehicular traffic (33 Misc 3d 368 [2011]). It denied the remainder of the City’s motion as academic. A divided Appellate Division affirmed, concluding that the underlying negligent omission occurred during the performance of a governmental rather than a proprietary function (104 AD3d 584 [1st Dept 2013]). The dissenter would have reversed Supreme Court’s dismissal of the complaint and denied the motion to set aside the verdict. The Appellate Division granted plaintiff leave to appeal on a certified question (2013 NY Slip Op 78059[U] [2013]).

Plaintiff contends that the courts below erred in concluding that the City could not be held liable for its negligence because Bowles was performing a governmental function when his negligent act occurred. She argues that highway maintenance and repair and the issuance of appropriate warnings for roadway hazards have consistently been deemed proprietary activities that may subject municipalities to liability when such conduct is performed by highway maintenance personnel or planners. The City responds that Bowles was engaged in traffic control— traditionally a governmental function — at the time he failed to warn plaintiff of the roadway condition and, as such, the City is immune from liability.

We recently explained the framework that must be used when a negligence claim is asserted against a municipality in Applewhite v Accuhealth, Inc. (21 NY3d 420 [2013]). First, a court must decide “whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose” (id. at 425). If the municipality’s actions fall on the proprietary side, “it is subject to suit under the ordinary rules of negligence applicable to nongovernmental parties” (id., citing Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428, 446-447 [2011]). A governmental entity undertakes a proprietary role when its “activities essentially substitute for or supplement traditionally private enterprises” (id., quoting Sebastian v State of New York, 93 NY2d 790, 793 [1999]). “In contrast, a municipality will be deemed to have been engaged in a governmental function when its acts are undertaken for the protection and safety of the public pursuant to the general police powers” (id. [internal quotation marks and citation omitted]). Generally, “the distinction is that the government will be subject to ordinary tort liability if it negligently provides services that traditionally have been supplied by the private sector” (id. at 426 [internal quotation marks omitted]). In deciding whether a function is proprietary or governmental, a court examines “the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred . . . , not whether the agency involved is engaged generally in proprietary activity or is in control of the location in which the injury occurred” (Miller v State of New York, 62 NY2d 506, 513 [1984]).

Historically, the maintenance of roads and highways was performed by both private entities and local governments, with each subject to the ordinary rules of negligence (see e.g. Ireland v Oswego, Hannibal & Sterling Plank Rd. Co., 13 NY 526, 531-532 [1856]; Hutson v Mayor of City of N.Y., 9 NY 163, 168 [1853] [“It requires no argument to prove that it is the duty of the defendants to see that the public streets of this densely crowded city are kept in repair”]). This duty to repair applied whether the dangerous condition in the road had been caused by a municipality (see Nelson v Village of Canisteo, 100 NY 89, 93 [1885]) or a contractor (see Turner v City of Newburgh, 109 NY 301, 305-306 [1888]). Indeed, we explained that a municipality has the obligation to warn or barricade a dangerous condition regardless of who caused or created it (see Pettengill v City of Yonkers, 116 NY 558, 564 [1889] [Municipal corporation’s duty “was to keep the streets in a safe condition for public travel, and it was bound to exercise reasonable diligence to accomplish that end, and the rule is now well established to be applicable whether the act or omission complained of and causing the injury is that of the municipal corporation or some third party”]).

In recognition of this duty, the courts of this State have held that a municipality can be held liable for failure to install traffic control signs (see Wager v State of New York, 7 NY2d 945, 947 [1960]); failure to repaint faded road stripes (see Henriquez v Parsippany Constr. Co., Inc., 62 AD3d 749, 751 [2d Dept 2009]; Purves v County of Erie, 12 AD3d 1112 [4th Dept 2004]); and for inadequate warnings of ongoing road construction (see Beardsley v State of New York, 57 AD2d 1061 [4th Dept 1977]; Miller v State of New York, 6 AD2d 979, 980 [3d Dept 1958]). As we held generally in Friedman v State of New York (67 NY2d 271, 283 [1986]), a municipality has a duty to maintain its roads and highways in a reasonably safe condition and liability will flow for injuries resulting from a breach of that duty. Thus, it is well established that a municipality has a proprietary duty to keep its roads and highways in a reasonably safe condition. Although liability for failing to maintain roads and highways can and has been limited by prior written notice laws (see e.g. Bruni v City of New York, 2 NY3d 319 [2004]; Amabile v City of Buffalo, 93 NY2d 471 [1999]), the nature of that function remains proprietary when performed by highway maintenance personnel.

Guided by these precedents, we conclude that Bowles was engaged in a proprietary function at the time he failed to warn plaintiff of the conditions in the transverse. Bowles was in Central Park on the day of the accident specifically to oversee the road maintenance project in his capacity as a City Department of Transportation supervisor. At the time he failed to warn plaintiff, he was blocking the transverse to vehicular traffic in preparation for that road repair. Although the maintenance work had not yet begun, Bowles and his crew could not have repaired the roadway without having closed the road to traffic. In other words, his act of closing the entry to vehicular travel was integral to the repair job — a proprietary function. Consequently, under the circumstances of this case, we conclude that Bowles was performing a proprietary function and the jury could therefore assess the City’s conduct under the ordinary rules of negligence.

Our decision in Balsam v Delma Eng’g Corp. (90 NY2d 966 [1997]) is not to the contrary. In that case, police officers were present at an accident scene in order to ensure the safety of an injured plaintiff and the public in general. In that capacity, their “traffic control” decision not to place flares or other warnings served a governmental function. Indeed, there was no independent basis for the police officers to be at the accident scene; their task was protection of the public. We emphasized that “tort suits that test the course of action undertaken by the police in furtherance of public safety are disfavored under our law because they implicate choices about the allocation of finite police resources” (id. at 968). We explained that traditional performance of a function by police officers rather than private actors “is a tell-tale sign that the conduct is not proprietary in nature” (id.). And with particular relevance to this appeal, we noted that “[n]o claim is made here that the police were charged with the responsibility to physically maintain the property where plaintiffs accident occurred — a proprietary duty” (id.). In contrast, Bowles closed the transverse as part of his assignment to repair a defect in the roadway. Hence, his conduct stemmed from the execution of a proprietary duty.

In sum, although the City was not held liable for its failure to repair the defect in the road due to lack of adequate prior written notice, rejection of that position did not foreclose the jury’s finding that Bowles was negligent in carrying out the proprietary function of road maintenance. Therefore, the City was not entitled to judgment dismissing the complaint as a matter of law, and a remittal is necessary to consider the weight of the evidence issues (CPLR 4404 [a]).

Accordingly, the order of the Appellate Division should be reversed, with costs, the case remitted to Supreme Court for further proceedings in accordance with this opinion, and the certified question not answered as unnecessary.

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

Order reversed, with costs, case remitted to Supreme Court, New York County, for further proceedings in accordance with the opinion herein, and certified question not answered as unnecessary.


author: Read, J. Pigott, J.

text:
    [15 NE3d 338, 991 NYS2d 583]
    In the Matter of Town of Islip, Appellant, v New York State Public Employment Relations Board et al., Respondents.
    Argued April 29, 2014;
    decided June 5, 2014

      POINTS OF COUNSEL

      Bond Schoeneck & King PLLC, Garden City (Ernest R. Stolzer, Hilary L. Moreiera and Christopher T. Kurtz of counsel), for appellant.
    I. The New York State Public Employment Relations Board does not possess the authority to compel the Town of Islip to continue an illegal past practice. (Matter of Doyle v City of Troy, 51 AD2d 845; Jackson Purchase Rural Elec. Co-op. Assn. v Local Union 816, Intl. Broth. of Elec. Workers, 646 F2d 264; United States Dept. of Justice v Federal Labor Relations Auth., 727 F2d 481; Barker v Kallash, 63 NY2d 19; Balbuena v IDR Realty LLC, 6 NY3d 338; Matter of Rosenthal v Harwood, 35 NY2d 469; Village Taxi Corp. v Beltre, 91 AD3d 92; Noghrey v Town of Brookhaven, 214 AD2d 659.) II. Section 14-12 of the Town of Islip’s Code of Ethics is consistent with the Taylor Law. (Matter of Doyle v City of Troy, 51 AD2d 845; Matter of Patrolmen’s Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d 563; Matter of Town of Wallkill v Civil Serv. Empls. Assn., Inc. [Local 1000, AFSCME, AFL-CIO, Town of Wallkill Police Dept. Unit, Orange County Local 836], 19 NY3d 1066.) III. There should be no reasonable expectation that an illegal past practice will continue. (Matter of Manhasset Union Free School Dist. v New York State Pub. Empl. Relations Bd., 61 AD3d 1231.) IV The Town of Islip cannot be estopped from discharging its statutory duties and enforcing the Town Code. (Matter of Parkview Assoc. v City of New York, 71 NY2d 274; Town of Putnam Val. v Sacramone, 16 AD3d 669; Town of Southold v Estate of Edson, 78 AD3d 816.) V. The New York State Public Employment Relations Board’s order is unreasonable and should not be enforced. (Matter of Manhasset Union Free School Dist. v New York State Pub. Empl. Relations Bd., 61 AD3d 1231; Matter of Village of Scotia v New York State Pub. Empl. Relations Bd., 241 AD2d 29; Matter of City of Rome v State of N.Y. Pub. Empl. Relations Bd., 283 AD2d 817; Matter of Germantown Cent. School Dist. v Public Empl. Relations Bd. of State of N.Y., 205 AD2d 961; Matter of Decker v Gooley, 212 AD2d 893.)

      David P. Quinn, Albany, for New York State Public Employment Relations Board, respondent.
    I. The Town of Islip’s 1968 Code of Ethics and Financial Disclosure Law does not affect its collective bargaining obligations with teamsters concerning the termination of the Town’s long-standing practice of permitting certain teamsters represented employees to use town owned vehicles to commute to and from work. (Matter of Doyle v City of Troy, 51 AD2d 845; City of Amsterdam v Helsby, 37 NY2d 19; Mayor of City of N.Y. v Council of City of N.Y., 9 NY3d 23; Matter of Saratoga Springs City School Dist. [New York State Pub. Empl. Relations Bd.], 68 AD2d 202, 47 NY2d 711; Matter of

      Board of Educ. of City School Dist. of City of N.Y. v New York State Pub. Empl. Relations Bd., 75 NY2d 660; Matter of City of Utica [Zumpano], 91 NY2d 964; Matter of Cohen v Board of Appeals of Vil. of Saddle Rock, 100 NY2d 395; Albany Area Bldrs. Assn. v Town of Guilderland, 74 NY2d 372; Matter of Patrolmen’s Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d 563; Matter of Town of Wallkill v Civil Serv. Empls. Assn., Inc. [Local 1000, AFSCME, AFL-CIO, Town of Wallkill Police Dept. Unit, Orange County Local 836], 19 NY3d 1066.) II. The New York State Public Employment Relations Board’s remedial order was a lawful exercise of its remedial powers under Civil Service Law § 205 (5) (d) and properly enforced under Civil Service Law § 213 (a) (ii). (Matter of New York State Pub. Empl. Relations Bd. v Board of Educ. of City of Buffalo, 39 NY2d 86; Matter of Monroe County v New York State Pub. Empl. Relations Bd., 85 AD3d 1439, 21 NY3d 855; Matter of Monroe County v New York State Pub. Empl. Relations Bd., 85 AD3d 1439; Matter of New York State Pub. Empl. Relations Bd. v County of Westchester, 280 AD2d 849; Matter of City of Albany v Helsby, 29 NY2d 433; Matter of City of Albany v Helsby, 56 AD2d 976; Matter of City of Poughkeepsie v Newman, 95 AD2d 101, 60 NY2d 859, 62 NY2d 602.)

      Koehler & Isaacs LLP, New York City (Liam L. Castro of counsel), for United Public Service Employees Union and another, respondents.
    The New York State Public Employment Relations Board had the authority to compel the Town of Islip to reinstate the past practice of permitting represented employees to use town vehicles to commute to and from work. (Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774; Matter of City of Watertown v State of N.Y. Pub. Empl. Relations Bd., 95 NY2d 73; Matter of West Irondequoit Teachers Assn. v Helsby, 35 NY2d 46; Matter of Town of Mamaroneck PBA v New York State Pub. Empl. Relations Bd., 66 NY2d 722; Matter of Incorporated Vil. of Lynbrook v New York State Pub. Empl. Relations Bd., 48 NY2d 398; City of Amsterdam v Helsby, 79 Misc 2d 676, 37 NY2d 19; Matter of Doyle v City of Troy, 51 AD2d 845; City of Buffalo v New York State Pub. Empl. Relations Bd., 80 Misc 2d 741; Matter of County of Nassau v New York State Pub. Empl. Relations Bd., 215 AD2d 381.)
   OPINION OF THE COURT

Read, J.

Petitioner Town of Islip (the Town) commenced this CPLR article 78 proceeding to challenge the determination made by respondent New York State Public Employment Relations Board (PERB or the Board) that the Town violated Civil Service Law § 209-a (1) (d) when it unilaterally discontinued the practice of permanently assigning town-owned vehicles to certain employees. The employees were allowed to use these so-called “take home” vehicles to travel from home to work and back — i.e., to commute to work. Section 209-a (1) (d) makes it an improper practice for a public employer to refuse to negotiate in good faith with the bargaining agent for its public employees. Many of the employees who lost “take home” vehicles belonged to blue- or white-collar collective bargaining units represented by Local 237-International Brotherhood of Teamsters (Local 237). We conclude that PERB reasonably applied precedent when making its determination, which is supported by substantial evidence; however, PERB’s remedial order is unreasonable insofar as it requires the Town to restore vehicle assignments to the affected employees.

I

On December 13, 1968, the Town enacted Local Law No. 4, which established a code of ethics and financial disclosure rules within the Town Code. Section 14-12, entitled “Use of town-owned equipment or property” states that

“[n]o officer or employee shall request or permit the use of Town-owned vehicles, equipment, material or property for personal convenience or profit, except when such services are available to the public generally or are provided as municipal policy for the use of such officer or employee in the conduct of official business.”

Effective September 15, 1990, the Town revised its Administrative Procedure Manual on the subject of “Town Vehicle Usage and Reporting of Accidents” to “specify guidelines for the usage of [Town] vehicles and to provide instructions for the proper reporting of accidents” (hereafter, the 1990 guidelines). Section 2 of the 1990 guidelines, captioned “Assignment of Vehicles” states in its entirety as follows:

“a. Permanent Assignment. Certain Town employees by nature of their positions are required to be on call twenty-four hours a day, and those employees will be assigned the use of a Town car. Only those employees who have written authorization from the Supervisor will be granted this privilege.
“b. Temporary Assignment. Other Town vehicles may be made available to Department personnel for official use if requested by the Department Head and approved by the Supervisor.”

Section 3 (a) specifies that “[pjersonal or other unauthorized use of a Town vehicle is strictly forbidden, and any violation of this regulation will result in disciplinary action against the violator.”

Based on a combination of job title and seniority, though, certain employees who used town-owned vehicles to carry out their official duties were permanently assigned these cars, which they were permitted to drive to and from work, even though their jobs did not require them to be on call when off-duty. Additionally, successive Town Supervisors seem to have neglected to give written approval for any of these assignments, which were made by department heads.

All employees with “take home” vehicles were directed to keep a mileage log and not to use these cars for personal errands; they were issued a card and key for access to the Town’s gasoline pumps, and the Town’s fleet management division carried out repairs and maintenance. The Town’s payroll office deducted $3 a day from their paychecks to reflect the estimated value, for tax purposes, of the provision of employer-owned cars for travel to and from work.

In September 2007, Local 237 and the Town began negotiations over the terms of successor contracts to the 2005-2007 collective bargaining agreements for the blue- and white-collar units. In October 2007, the Town proposed the topic of “take home” vehicle use as a subject of bargaining in both units. The Town withdrew these proposals in December 2007, the month the existing agreements expired. In February 2008, an impasse was declared and a mediator was appointed.

Meanwhile, the Town Board of Supervisors (the Town Board) on April 29, 2008 adopted a resolution endorsing a fleet/vehicle policy to be put in place in three phases. The resolution’s “Whereas” clauses recited that the Town Board was taking this action in order to lower fuel and maintenance costs, reduce the number of “take home” vehicles and encourage the use of pooled vehicles; and that “in implementing such a policy[,] the Town Board re-affirms the principle set out in § 14-12 of the Town Code, and set forth in the Town Administrative Procedure Manual [i.e., the 1990 guidelines] that ‘Personal or other unauthorized use of a Town vehicle is strictly prohibited.’ ”

Under the new policy, which was attached to the resolution, only three categories of employees were to be assigned “take home” vehicles: specified elected officials, 24/7 responders, and employees with multi-work site jobs. All other employees were instructed to use the pool vehicles available at the locations where they reported to work.

By letter dated June 6, 2008, three days before the 2008 fleet/ vehicle policy went into effect, the Town’s Director of Labor Relations and Personnel informed Local 237’s top executive that on account of a “revision” of existing policy, approximately 45 of the union’s members would be “shifted from taking a Town vehicle home to utilization of a pool vehicle located at their reporting location[s].” The shift came about because these employees were not elected officials, 24/7 responders or workers who reported to multiple work sites, as required to qualify for a “take home” car under the new policy.

By letter dated June 9, 2008, the union’s attorney responded that “employee use of Town-owned vehicles for personal purposes (driving to and from work) is an economic benefit and therefore, a mandatory subject of bargaining.” On béhalf of Local 237, he demanded that the Town retract any orders that unit members turn in the keys to assigned vehicles, pending negotiations over the Town’s decision and its impact.

On June 23, 2008, Local 237 filed an improper practice charge with PERB. The charge, as later amended, claimed that the Town violated Civil Service Law § 209-a (1) (a) and (d) by unilaterally adopting the 2008 fleet/vehicle policy and thereby eliminating the ability of certain union employees to continue to use town-owned vehicles to commute to work. The union also alleged that the Town had adopted the new policy in order to undermine the stalled contract negotiations, thus engaging in bad-faith bargaining.

After an evidentiary hearing on July 1, 2009, the administrative law judge (ALJ) issued a decision dated March 1, 2010, in which she found that the union had carried its burden of demonstrating a clear and unequivocal 20-plus-year practice with respect to determining which employees/job titles were eligible for “take home” vehicles, thus creating a reasonable expectation among union members that the same practice would continue (43 PERB ¶ 4514 [2010]). She ruled that the 2008 fleet/vehicle policy was not “a mere modification or clarification of [this] existing vehicle policy,” as the Town asserted, but rather manifested a change in practice; and that the Town did not retain any management right to alter its position on the use of “take home” vehicles unilaterally, based on the provisions of section 14-12 of the Town Code and the 1990 guidelines, as the Town argued.

Additionally, the ALJ concluded that Local 237 had failed to prove that the Town refused to bargain the impact of the change; or engaged in bad-faith bargaining by withdrawing the October 2007 “take home” vehicle use proposals and essentially implementing them the following June; or violated Civil Service Law § 209-a (1) (a). With respect to the charge of bad-faith bargaining, the ALJ credited the testimony of the Town’s Director of Labor Relations and Personnel, supported by his contemporaneous notes, that he withdrew the “take home” vehicle use proposals in an honest, if mistaken, belief that the proposed change in policy was a management right in light of section 14-12 of the Town Code and the 1990 guidelines.

Accordingly, the ALJ held that the Town had violated Civil Service Law § 209-a (1) (d) by canceling “take home” vehicle assignments without negotiation, and dismissed the union’s other claims. She ordered the Town to “restore the vehicle assignments for commutation between home and work to those unit members who enjoyed the benefit prior to April 4, 2008”; to “make whole unit employees for the extra expenses incurred as a result of the unilateral withdrawal of the 24/7 vehicle assignment(s), if any, together with interest at the maximum legal rate”; and to sign and post a notice in the workplace to inform employees of the remedies ordered.

In a decision and order dated May 27, 2011, PERB denied the Town’s exceptions and Local 237’s cross-exceptions to the ALJ’s decision and order, which PERB affirmed, essentially on the basis of the ALJ’s reasoning (44 PERB ¶ 3014 [2011]). By petition filed in Supreme Court on June 29, 2011, the Town then commenced this CPLR article 78 proceeding to annul PERB’s decision and order insofar as the Town was found to have violated Civil Service Law § 209-a (1) (d) by issuing the 2008 fleet/vehicle policy, and to dismiss the improper practice charge. PERB cross-petitioned to enforce its order.

Upon transfer from Supreme Court pursuant to CPLR 7804 (g), the Appellate Division confirmed PERB’s determination, denied the petition, dismissed the proceeding, granted PERB’s cross petition and remitted the matter to Supreme Court for issuance of an order compelling compliance with its decision and judgment (104 AD3d 778 [2d Dept 2013]). The court held that substantial evidence supported PERB’s determination that the permanent assignment of town-owned vehicles to the affected employees constituted a past practice as to a term or condition of employment, a mandatory subject of negotiation, which the Public Employees’ Fair Employment Act (Civil Service Law art 14), known as the Taylor Law, barred the Town from unilaterally discontinuing.

The Appellate Division rejected the Town’s argument that because “its Ethics Code [specifically, section 14-12 of the Town Code] [forbade] the use of Town vehicles in violation of Town policy, the Town could not be forced to engage in collective bargaining over the issue,” explaining that

“[t]he Town government was responsible for administering the Ethics Code [i.e., section 14-12 of the Town Code] and for managing its vehicle fleet. Yet, as substantial evidence in the record establishes, the Town frequently and openly ignored that Code and its policy for managing its vehicle fleet, only to contend later that the Code allowed it to act unilaterally in taking the vehicles away from the employees who had been permanently provided with them. The PERB was not required to give more effect to the Town Ethics Code than the Town itself gave to it. Second, for similar reasons, it cannot be said as a matter of law that it is unreasonable for employees to rely on the administering authority’s interpretation and implementation of its policy and Ethics Code. Consequently, the PERB’s determination was not affected by an error of law, arbitrary and capricious, or an abuse of discretion” (104 AD3d at 781-782).

The Town subsequently moved for leave to appeal, which we granted on June 27, 2013 (21 NY3d 861 [2013]).

II

The Taylor Law requires all public employers and employee organizations to negotiate in good faith to determine represented employees’ terms and conditions of employment (Civil Service Law §§ 201 [4]; 203, 204). PERB has long held that employee use of an employer-owned vehicle for transportation to and from work is an economic benefit and a mandatorily negotiable term and condition of employment; therefore, a public employer may not unilaterally discontinue a past practice of providing its employees with this benefit (see e.g. Matter of County of Nassau, 13 PERB ¶ 3095 [1980], determination confirmed sub nom. Matter of County of Nassau v Public Empl. Relations Bd. of State of N.Y., 14 PERB ¶ 7017 [Sup Ct, Nassau County 1981] [upholding PERB’s determination that Nassau County committed an improper practice by ceasing to provide county-owned vehicles on a 24-hour basis to certain employees in its Department of Public Works], affd 87 AD2d 1006 [2d Dept 1982], lv denied 57 NY2d 601 [1982]; Matter of County of Onondaga, 12 PERB ¶ 3035 [1979], determination confirmed sub nom. Matter of County of Onondaga v New York State Pub. Empl. Relations Bd., 77 AD2d 783, 783-784 [4th Dept 1980] [in a case where Onondaga County stopped allowing 24-hour use of county-owned cars by employees in the Division of Sanitation of the Department of Health, the court noted that “PERB’s determination that employee use of an employer-owned car for personal purposes is an economic benefit and a term and condition of employment which cannot be unilaterally withdrawn is reasonable and supported by substantial evidence”]). To be binding, a past practice must be

“ ‘unequivocal and . . . continued uninterrupted for a period of time sufficient under the circumstances to create a reasonable expectation among the affected [bargaining] unit employees that the [practice] would continue.’ Further, ‘the expectation of the continuation of the practice is something that may be presumed from its duration with consideration of the specific circumstances under which the practice has existed’ ” (Matter of Chenango Forks Cent. Sch. Dist. v New York State Pub. Empl. Relations Bd., 21 NY3d 255, 263 [2013], quoting Matter of County of Nassau, 24 PERB ¶ 3029, 3058 [1991]).

Our scope of review in this case is limited to whether PERB’s determination that the Town engaged in an improper practice was “affected by an error of law” or was “arbitrary and capricious or an abuse of discretion” (CPLR 7803 [3]). “PERB is accorded deference in matters falling within its area of expertise” such as “cases involving the issue of mandatory or prohibited bargaining subjects” (Matter of Board of Educ. of City School Dist. of City of N.Y. v New York State Pub. Empl. Relations Bd., 75 NY2d 660, 666 [1990] [citation omitted]). Additionally, an administrative determination made after a hearing required by law, such as PERB’s determination here, must be supported by substantial evidence (see Matter of Jennings v New York State Off. of Mental Health, 90 NY2d 227, 239 [1997]).

The Town urges that PERB’s determination of improper practice was arbitrary and capricious, an abuse of discretion and not supported by substantial evidence for two related reasons: first, that an illegal practice cannot ripen into a binding past practice because employees may not reasonably expect illegal activity to continue indefinitely; and second, that it adopted the 2008 fleet/vehicle policy to conform its practice for permanently assigning “take home” vehicles with section 14-12 of the Town Code, and an employer has no duty to negotiate with a union before discontinuing a past practice that is illegal under local law. The Town, then, cannot succeed on this appeal unless its past practice contravened section 14-12 because commuting to work constitutes the “use of Town-owned vehicles . . . for personal convenience or profit,” which that provision forbids.

Section 14-12 does not define “personal convenience or profit.” The record shows, however, that the Town has never interpreted this phrase to encompass commuting to work by employees eligible for “take home” vehicles on account of their work duties and seniority. This is reasonable. After all, there is nothing inherently improper or unethical, much less illegal, about employer-sponsored commutation benefits. Moreover, the Town’s interpretation did not change in 2008. The 2008 fleet/ vehicle policy simply reduced the categories and therefore the number of town employees who qualified to be permanently assigned “take home” vehicles. Indeed, if the Town and the dissent are correct that any use of an assigned town-owned car to travel back and forth to work amounts to an illegal “use of Town-owned vehicles . . . for personal convenience or profit,” then the 2008 fleet/vehicle policy perpetuated rather than cured the illegality.

In sum, the Town asks us to rule in its favor on the ground that a public employer does not violate section 209-a (1) (d) of the Taylor Law when it unilaterally discontinues a past practice with respect to a term and condition of employment that is illegal under local law. Whatever the merits of the Town’s position, we do not reach and need not consider them because the relevant past practice was not, in fact, illegal under the local law. Accordingly, PERB reasonably applied its precedent to determine that the Town engaged in an improper practice when it unilaterally discontinued the permanent assignment of “take home” vehicles to employees who enjoyed this benefit before the Town adopted and implemented the 2008 fleet/vehicle policy, and PERB’s determination was based on substantial evidence.

III

We review the remedies imposed by PERB with deference to its expertise (see Matter of City of Albany v Helsby, 29 NY2d 433, 439 [1972]). Thus “a remedy fashioned by PERB for an improper practice should be upheld if reasonable,” although “[i]t is for the courts to examine the reasonable application of PERB’s remedies” (Matter of Manhasset Union Free School Dist. v New York State Pub. Empl. Relations Bd., 61 AD3d 1231, 1234-1235 [3d Dept 2009] [citations and internal quotation marks omitted]; see Civil Service Law § 213 [d]). Here, PERB’s remedial order requires the Town to “[f]orthwith restore the vehicle assignments for commutation between home and work to those unit members who enjoyed the benefit prior to April 4, 2008.” A PERB injunction was not sought to preserve the status quo ante, and the Town sold some or all of the cars formerly permanently assigned to blue- and white-collar unit employees. Forcing the Town to invest significant taxpayer dollars to replace these vehicles is unduly burdensome under the circumstances, and does not further the goal of reaching a fair negotiated result (cf. Matter of Manhasset Union Free School Dist., 61 AD3d at 1235 [enforcement of a PERB order for the school district to restore the personnel and facilities of its former transportation department was unreasonable where the district had sold its buses and leased its garage, and compliance with the order might require taxpayer approval]). We therefore remit so that PERB may fashion a remedy that grants commensurate, practical relief to the employees subject to the improper practice without requiring the Town to purchase a whole new fleet of vehicles with an uncertain future.

Accordingly, the order of the Appellate Division should be modified, without costs, by remitting thereto with directions to remand to PERB for further proceedings in accordance with this opinion and, as so modified, affirmed.

Pigott, J.

(dissenting).The issue on this appeal is not whether a public employee’s personal use of a take-home vehicle is an economic benefit (majority op at 491-492), but, rather, whether a public employer must collectively bargain its way out of a previous policy that is plainly in violation of a duly-enacted local law. Chapter 14 of the Town Code of the Town of Islip entitled “Code of Ethics and Financial Disclosure Law” was adopted in December of 1968 and, apparently, as amended from time to time by the elected Town Board, has functioned without incident ever since. Section 14-12 of that law provides in its entirety as follows:

“No officer or employee shall request or permit the use of Town-owned vehicles, equipment, material or property for personal convenience or profit, except when such services are available to the public generally or are provided as municipal policy for the use of such officer or employee in the conduct of official business'’'’ (emphasis added).

Contrary to the majority’s contention (majority op at 493-494), the question whether a public employer may unilaterally discontinue a past practice concerning a term and condition of employment that a local law had declared illegal is squarely presented for our review.

In remarkably brief testimony from four witnesses, all employees of the Town, it is conceded that town employees were permitted to use municipal vehicles for personal use, namely, to drive town-owned vehicles to and from home. As such, the personal use of town-owned vehicles was plainly contrary to section 14-12. PERB erroneously concluded, however, that by allowing employees to drive vehicles home in violation of section 14-12, the Town could not unilaterally end that practice without violating the Taylor Law. Essentially, PERB’s decision trumps a local law and requires the Town to bargain its way out of an illegal activity. This is contrary to law.

Illegal past conduct does not, and should not, evolve into binding terms and conditions of employment. Were it so, sloppy bookkeeping, lax supervision and perhaps, in some cases, rife favoritism could form the basis of a policy by which PERB could overrule a duly-enacted local law.

There was nothing in the previous collective bargaining agreements or in the laws and regulations of the Town that would allow public employees to take advantage of taxpayers by obtaining municipally-provided transportation at discount rates. By the same token, it cannot be argued that this would, by custom, tradition, or negligence, be the subject of collective bargaining. It’s clear. The conduct engaged in by the Town and its employees was against the law and PERB’s determination could not make it legal. Therefore, that determination should be annulled and vacated.

Chief Judge Lippman and Judges Graffeo, Rivera and AbdusSalaam concur with Judge Read; Judge Pigott dissents in an opinion in which Judge Smith concurs.

Order modified, without costs, by remitting to the Appellate Division, Second Department, with directions to remand to the New York State Public Employment Relations Board for further proceedings in accordance with the opinion herein and, as so modified, affirmed.

      . Local 237 was decertified as the labor representative for the blue-collar and white-collar units in September 2010 and September 2013, respectively. The United Public Service Employees Union replaced Local 237 as the certified labor representative for both units. As used in this opinion, then, “Local 237” refers specifically to Local 237-International Brotherhood of Teamsters, while “union” may refer to either Local 237 or the United Public Service Employees Union, depending on chronology.

      . The 2005-2007 blue-collar agreement did not mention town vehicles, while the 2005-2007 white-collar agreement stated only that the Town “agree[d] to assume responsibility for all Town vehicle violations other than moving or parking.”

      . As of April 2008, the Town owned 648 vehicles and employed 944 workers; 155 of the 648 vehicles, or just under one-quarter, were “take home” vehicles.

        . 24/7 responders were defined as employees who held
      “jobs which require[d them] to be available twenty-four hours per day, seven days per week to respond to an emergency/crisis throughout the Town of Islip at any number of locations. As part of our responsibility to the citizens of Islip, the Town requires certain jobs/individuals to respond directly to the site of an incident bypassing their normal work-site.”

      . With respect to multi-work site jobs, the policy stated that “[w]hen a job requires the employee to report to various work sites at the beginning of each day and where reporting to a central work-site/dispatch area to be assigned a Town vehicle would be unproductive and time[-]consuming, then those job functions/individuals may be assigned a vehicle on a permanent basis and permitted to take a Town vehicle home.”

      . Civil Service Law § 209-a (1) (a) makes it an improper practice for an employer deliberately to “interfere with, restrain or coerce public employees in the exercise of their rights [to join, form and participate in a union] for the purpose of depriving them of such rights.”

      . The reason for the choice of this date is not clear from the record. In any event, the 2008 fleet/vehicle policy did not take effect until June 9, 2008.

      . The Town now also contends, alternatively, that Civil Service Law § 209-a (4) (i), which states that “[n]othing in this section shall be deemed to eliminate or diminish any right that may exist pursuant to any other law,” exempts the Town’s enforcement of section 14-12 from mandatory negotiations under the Taylor Law. We do not consider this argument, which was not presented to the ALJ and is therefore not preserved for our review.

      . The Town no longer seems to rely on the 1990 guidelines except to the extent that, consistent with section 14-12, they state that “Personal or other unauthorized use of a Town vehicle is strictly prohibited.” In any event, guidelines, by definition, are not binding. As a result, it was not illegal for town officials to disregard the 1990 guidelines by assigning “take home” vehicles to non-24/7 responders. And, of course, the 2008 fleet/vehicle policy does not itself comply with the 1990 guidelines as it extends eligibility for “take home” vehicles to nonemergency personnel (i.e., employees who work at multiple sites during the workday).