text:
    [909 NE2d 1213, 882 NYS2d 375]
    Igor Misicki, Appellant, v Salvatore Caradonna, Defendant, and 430-50 Shore Road Corporation, Respondent. (And a Third-Party Action.)
    Argued April 2, 2009;
    decided May 12, 2009

      POINTS OF COUNSEL

      Perecman Firm, P.L.L.C., New York City (David H. Perecman and Rudolf B. Radna of counsel), for appellant.
    I. The inspect, repair or replace provision of 12 NYCRR 23-9.2 (a) is a specific positive command within the meaning of Ross v Curtis-Palmer Hydro-Elec. Co. (81 NY2d 494 [1993]). II. The sound public policy behind the passage of Labor Law § 241 (6) and the need for regulation of the condition of inherently dangerous power tools used on construction sites and logical analysis of the language of 12 NYCRR 23-9.2 (a) all militate toward a finding that it is specific. (Vallina v Wright & Kremers, 7 AD2d 101; Bland v Manocherian, 66 NY2d 452.) III. The general language contained in the regulation does not void the specific inspect, repair and replace provision of 12 NYCRR 23-9.2 (a). (Morris v Pavarini Constr., 9 NY3d 47; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Brasch v Yonkers Constr. Co., 306 AD2d 508; Zacher v Niagara Frontier Servs., 210 AD2d 897.) IV. The inspect, repair and replace requirement of 12 NYCRR 23-9.2 (a) is as specific and concrete as similar regulations that have been held to be specific. (Piazza v Frank L. Ciminelli Constr. Co., Inc., 2 AD3d 1345; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494.)

      Lewis, Scaria & Cote, LLC, White Plains (Deborah A. Summers of counsel), for respondent.
    12 NYCRR 23-9.2 (a) merely incorporates the ordinary tort duty of care and is too general to support a claim under Labor Law § 241 (6). (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Hassett v Celtic Holdings, 7 AD3d 364; Maldonado v Townsend Ave. Enters., Ltd. Partnership, 294 AD2d 207; Cun-En Lin v Holy Family Monuments, 18 AD3d 800; Schwab v A.J. Martini, Inc., 288 AD2d 654; Creamer v Amsterdam High School, 241 AD2d 589; Mahoney v Madeira Assoc., 32 AD3d 1303; Boyd v Mammoet W., Inc., 32 AD3d 1257; Williams v White Haven Mem. Park, 227 AD2d 923; Sanatass v Consolidated Inv. Co., Inc., 38 AD3d 332.)

      Joshua Annenberg, New York City, for New York State Trial Lawyers’ Association, amicus curiae.
    I. Industrial Code (12 NYCRR) § 23-9.2 (a) constitutes a specific, positive command which supports a cause of action under Labor Law § 241 (6). (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343; Comes v New York State Elec. & Gas Corp., 82 NY2d 876; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Piccolo v St. John’s Home for Aging, 11 AD3d 884; Tillman v Triou’s Custom Homes, 253 AD2d 254; Webber v City of Dunkirk, 226 AD2d 1050; Zacher v Niagara Frontier Servs., 210 AD2d 897; Leader v Maroney, Ponzini & Spencer, 97 NY2d 95; Cohen v Lord, Day & Lord, 75 NY2d 95; Morris v Pavarini Constr., 9 NY3d 47.) II. Industrial Code (12 NYCRR) § 23-9.2 (a) must be construed as a specific, positive command, since. the legislative history of Labor Law § 241 (6) and public policy favor a broad reading to protect construction workers. (Zimmer v Chemung County Performing Arts, 65 NY2d 513.)
   OPINION OF THE COURT

Read, J.

On October 26, 2001, plaintiff Igor Misicki, a laborer employed by Upgrade Contracting Company, was injured while working on a construction project at a two-building cooperative residential apartment complex located at 450 Shore Road in Long Beach, New York. The buildings were owned by defendant 430-50 Shore Road Corporation, which had retained an architect and hired Upgrade to carry out the work, which involved renovating the buildings’ pool deck.

In July and August, plaintiff and another Upgrade employee changed out the sleeves of the air-conditioning units in the buildings’ apartments. After Labor Day, plaintiff began working on the pool deck job, which first required him and his fellow workers to remove bricks from the base of the buildings’ exterior walls next to the deck so as to lay bare the underlying concrete. On the day of his accident, plaintiff was “cutting” exposed concrete with a handheld nine-inch electrically-driven angle grinder. Specifically, his foreman directed him to “cut” (more accurately, abrade) a slot 2½ inches deep into a line marked on the wall, about a foot or two above the deck.

When plaintiff retrieved the grinder from the toolbox maintained by Upgrade at the job site, he could not find the side handle for it. He described this handle as removable, and designed to be fitted onto the grinder in any one of two or three different positions. According to plaintiff, he complained to his foreman—three times—that the handle was unavailable; and his foreman repeatedly instructed him “to go back to work and . . . work[ ] without [the] handle.” Plaintiff testified that he “didn’t feel safe” using the grinder without the handle because he did not have “control over the machine.”

After “cutting the line” for two hours with the grinder sans the side handle, plaintiff reached a point where a balcony projected from the building’s exterior. The balcony was roughly three or four feet above the pool deck. In order to continue with his task, plaintiff stretched out on the deck underneath the balcony, resting on his right side; his headroom was limited, and he was lying about two feet away from the wall. Plaintiff testified that after working in this position for 20 or 30 minutes—with at least one interruption to get up and search again for a handle—the grinder “kicked back” and the grinding wheel struck his face, deeply lacerating his upper lip, cheek and right nostril and causing him to lose consciousness momentarily.

Plaintiff was immediately taken by ambulance to a nearby hospital, where his wounds were sutured. During the ensuing year, he underwent two surgeries to relieve breathing problems that he attributes to what his doctor described as a “complicated laceration of the nose.” He complains of continuing adverse health consequences, including headaches and difficulty breathing and sleeping. At the time of his deposition in April 2004, plaintiff had not worked since the accident.

In July 2002, plaintiff sued Shore and the architect for damages; he asserted common-law negligence and violations of Labor Law §§ 200, 240 (1) and § 241 (6). After the close of discovery in the summer of 2004, plaintiff withdrew his section 200 and 240 (1) claims, and discontinued the action against the architect. On March 3, 2003, Shore brought a third-party action against Upgrade, which subsequently agreed to defend and indemnify Shore. As a result, Shore’s third-party action was discontinued with prejudice on March 16, 2005.

In September 2005, Shore moved for summary judgment dismissing plaintiffs complaint, which by that point consisted solely of his claim under Labor Law § 241 (6). This provision “requires owners and contractors to provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor” (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502 [1993] [internal quotation marks omitted]). The duty to comply with the Commissioner’s safety rules, which are set out in the Industrial Code (12 NYCRR), is nondelegable. In order to support a claim under section 241 (6), however, the particular provision relied upon by a plaintiff must mandate compliance with concrete specifications and not simply declare general safety standards or reiterate common-law principles (81 NY2d at 504-505). Contributory and comparative negligence are valid defenses to a section 241 (6) claim; moreover, breach of a duty imposed by a rule in the Code is merely some evidence for the factfinder to consider on the question of a defendant’s negligence (see Long v Forest-Fehlhaber, 55 NY2d 154, 159-160 [1982]).

Plaintiff alleged that Shore violated two of the Commissioner’s rules—12 NYCRR 23-1.12 (c) (“Power-driven saws”) and 23-9.2 (a). In support of its motion for summary judgment, Shore argued that section 23-1.12 (c) was inapplicable because it covered portable, handheld circular saws, which Shore’s expert opined are not the same as portable, handheld grinders; and that section 23-9.2 (a) was not sufficiently specific and concrete.

Subpart 23-9 of the Code is entitled “POWER-OPERATED EQUIPMENT.” Section 23-9.1 (“Application of This Subpart”) specifies that “[t]he provisions of [subpart 23-9] shall apply to power-operated heavy equipment or machinery used in construction, demolition and excavation operations” with certain exclusions. This statement of applicability is followed by section 23-9.2 (“General Requirements”), and nine sections covering specific kinds of power-operated heavy equipment or machinery. Section 23-9.2 (a) states in its entirety as follows:

“(a) Maintenance. All power-operated equipment shall be maintained in good repair and in proper operating condition at all times. Sufficient inspections of adequate frequency shall be made of such equipment to insure such maintenance. Upon discovery, any structural defect or unsafe condition in such equipment shall be corrected by necessary repairs or replacement. The servicing and repair of such equipment shall be performed by or under the supervision of designated persons. Any servicing or repairing of such equipment shall be performed only while such equipment is at rest.”

In its motion papers, Shore took the position that the Second Department—where this lawsuit was brought—had already “held that 23-9.2 (a) [was] a general requirement within the meaning of Ross . . . [and did] not give rise to the nondelegable duty under § 241 (6).” Shore adduced Phillips v City of New York (228 AD2d 570, 572 [2d Dept 1996] [referring to section 23-9.2 (a), court noted, in dicta, that “the specific provisions relied upon (by the plaintiff) merely established general safety standards . . . which do not give rise to a nondelegable duty”]), Thompson v Ludovico (246 AD2d 642, 643 [2d Dept 1998] [court stated, in dicta, that certain sections cited by the plaintiff, including 12 NYCRR 23-9.2 (a), “did not support his claim under Labor Law § 241 (6) because (they) were . . . merely general safety standards”]) and Anarumo v Slattery Assoc. (298 AD2d 339, 340 [2d Dept 2002] [court denied summary judgment to the plaintiffs on their section 241 (6) cause of action because “12 NYCRR 23-9.2 (a) merely establishes general safety standards which do not give rise to a nondelegable duty”]).

In April 2006, Supreme Court granted Shore’s motion and dismissed plaintiffs Labor Law § 241 (6) claim. The trial judge concluded that plaintiff had failed to rebut Shore’s prima facie showing that section 23-1.12 (c) was inapplicable to a handheld electrically-driven grinder. As for section 23-9.2 (a), Supreme Court noted that Shore relied on Anarumo, Phillips, and Thompson—all Second Department cases—while plaintiff cited the Fourth Department’s decision in Zacher v Niagara Frontier Servs. (210 AD2d 897 [4th Dept 1994]). In Zacher, the Fourth Department decided that

“[t]he requirement that a plaintiff must allege violation of a specific safety regulation promulgated by the Commissioner . . . was satisfied by the assertion . . . that defendants violated 12 NYCRR 23-9.2 (a). That regulation, promulgated under Labor Law § 241 (6), imposes upon owners, contractors and their agents an affirmative duty of maintenance and inspection of power-operated equipment” (id. at 897-898 [internal quotation marks and citations omitted]; see also Piccolo v St. John’s Home for Aging, 11 AD3d 884, 886 [4th Dept 2004] [“We have previously determined that 12 NYCRR 23-9.2 (a) is sufficiently specific to support a claim pursuant to section 241 (6)”]).

The trial judge determined that because this case was being litigated “within the confines of the Second Department,” he was compelled to “follow [the Second Department’s] holding that 12 NYCRR 23-9.2 is not specific enough to support a Labor Law § 241 (6) violation.”

Plaintiff moved to reargue, protesting that the Second Department cases were distinguishable because they interpreted only the first sentence of section 23-9.2 (a), and “no specific structural defect or unsafe condition in the power equipment was alleged” in those cases. By contrast, he contended, in Zacher “the plaintiff was injured as a result of a broken handle on power equipment (a sander) . . . just like the Plaintiff herein was injured due to . . . defects in the equipment,” including a missing handle.

Supreme Court was persuaded. In March 2007, the trial judge granted reargument, vacated his April 2006 decision and order, and denied Shore’s motion for summary judgment. Supreme Court decided that the provision in section 23-9.2 (a) “requirting] the repair or replacement of unsafe equipment [was] a specific positive command . . . applicable to the facts of the instant case.” In June 2007, the judge clarified that his April 2006 order remained in effect except insofar as modified by his March 2007 decision regarding section 23-9.2 (a). Supreme Court further noted that there was “a question of fact whether section 23-9.2 (a) was violated.”

In May 2008, the Appellate Division reversed. “Contrary to the Supreme Court’s determination,” the court opined, “12 NYCRR 23-9.2 (a) does not support the plaintiffs claim under Labor Law § 241 (6), as that provision merely establishes general safety standards which do not give rise to a nondelegable duty” (51 AD3d 644, 645 [2d Dept 2008]). The Appellate Division cited its previous decisions in Anarumo, Thompson and Phillips as well as the First Department’s decision in Hassett v Celtic Holdings (7 AD3d 364, 365 [1st Dept 2004] [“12 NYCRR 23-9.2 (a) ... is a general requirement to maintain power equipment in good operating order”]).

Plaintiff sought to appeal to us. Because the First, Second and Third Departments (see e.g. Fairchild v Servidone Constr. Corp., 288 AD2d 665, 667-668 [3d Dept 2001]) have ruled that section 23-9.2 (a) does not support a claim under Labor Law § 241 (6) and the Fourth Department has ruled otherwise, we granted plaintiff permission to appeal to resolve the apparent conflict (11 NY3d 706 [2008]). We now reverse for the reasons that follow.

I.

As an initial matter, we note that subpart 23-9 applies to “power-operated heavy equipment or machinery” (12 NYCRR 23-9.1 [emphasis added]) such as excavating machines, pile drivers and motor trucks (see at 516 n 1). Shore never argued that the grinder was a hand tool subject to other provisions of the Code (see e.g. 12 NYCRR 23-1.10 [b] [“Electrical and pneumatic hand tools”]) or, in any event, was not “power-operated heavy equipment or machinery” within the meaning of subpart 23-9. For purposes of this appeal, we therefore assume, without deciding, that section 23-9.2 (a) applies to a handheld nine-inch electrically-driven angle grinder.

Judge Smith objects to this assumption. While acknowledging the general rule that we do not resolve cases on grounds raised for the first time on appeal, he points to a concededly rarely invoked exception for a “newly raised point of law” that is “decisive” in a civil case and “could not have been obviated by factual showings or legal countersteps if it had been raised below” (Karger, Powers of the New York Court of Appeals § 17:1, at 591-592 [3d ed rev] [internal quotation marks and footnote omitted]). Declaring that the exception “fits this case perfectly,” Judge Smith would affirm the Appellate Division’s order in light of the “plain inapplicability of the regulation plaintiff relies on” (Smith, J, dissenting at 525).

This case does not fit the exception at all. We are not faced with a situation where a litigant “newly raise [s]” on appeal a “point of law” not put forward in the trial court—that is, we are not talking about an exception to the preservation requirement as it is classically defined. Here, Shore never so much as hinted much less claimed before us that section 23-9.2 (a) is inapplicable to the grinder involved in plaintiffs accident. For us now to decide this appeal on a distinct ground that we winkled out wholly on our own would pose an obvious problem of fair play. We are not in the business of blindsiding litigants, who expect us to decide their appeals on rationales advanced by the parties, not arguments their adversaries never made. In sum, plaintiff deserves an opportunity to refute the proposition on which the dissent would decide this appeal against him. And the opportunity may well be realized since our decision today certainly does not foreclose Shore, if it so chooses, from taking the position at trial that section 23-9.2 (a) is inapplicable to the grinder.

While appellate judges surely do not “ ‘sit as automatons’ ” (Smith, J., dissenting at 525, quoting Karger § 17:1, at 591), they are not freelance lawyers either. Our system depends in large part on adversary presentation; our role in that system “is best accomplished when [we] determine[ ] legal issues of statewide significance that have first been considered by both the trial and the intermediate appellate court” (People v Hawkins, 11 NY3d 484, 493 [2008, Kaye, Ch. J.]). Here, the specificity of section 23-9.2 (a) has, in fact, been considered by all four departments of the Appellate Division, with differing results; by contrast, its applicability to a grinder was not briefed or argued by the parties to this appeal, and, insofar as we can tell, the general issue of whether section 23-9.2 (a) applies to an electrically-powered hand tool has not yet been addressed by any lower court.

II.

When analyzing section 23-9.2 (a)’s specificity, the parties focused on the regulation’s first three sentences, which are, in order, as follows:

(1) “All power-operated equipment shall be maintained in good repair and in proper operating condition at all times.”
(2) “Sufficient inspections of adequate frequency shall be made of such equipment to insure such maintenance.”
(3) “Upon discovery, any structural defect or unsafe condition in such equipment shall be corrected by necessary repairs or replacement.”

Plaintiff concedes that the first sentence is “undoubtedly general and unenforceable.” In his view, however, the second and third sentences, which he reads together, do more than “merely restate [ ] the common law duty to keep the worksite reasonably safe.” Instead, he contends, “what makes the second and third sentences of the regulation specific” is that they “say[ ] inspect (that’s a command), then upon discovery (that’s the when) of a structural defect or unsafe condition (that’s the circumstances calling for action . . . )[,] repair or replace (that’s the action or positive concrete command).” Citing our decision in Morris v Pavarini Constr. (9 NY3d 47, 50 [2007]), plaintiff points out that specific provisions in a Code regulation are enforceable notwithstanding the general nature of other portions of the same regulation. Shore counters that the first three sentences in section 23-9.2 (a), considered together, “say[ ] nothing more than ‘tools shouldn’t be broken; you must check to make sure that tools aren’t broken; and when you find that tools are broken, you must fix or replace them.’ ”

In our view, the first two sentences of section 23-9.2 (a)— which employ only such general phrases as “good repair,” “proper operating condition,” “[sufficient inspections,” and “adequate frequency”—are not specific enough to permit recovery under section 241 (6) against a nonsupervising owner or general contractor. We reach the opposite conclusion about the third sentence, however. This portion of the regulation imposes an affirmative duty on employers to “correct[ ] by necessary repairs or replacement” “any structural defect or unsafe condition” in equipment or machinery “[u]pon discovery” or actual notice of the structural defect or unsafe condition. As a result, the third sentence of section 23-9.2 (a) “mandates a distinct standard of conduct, rather than a general reiteration of common-law principles, and is precisely the type of ‘concrete specification’ that Ross requires” (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 351 [1998]). The next two sentences of the regulation describe requirements for servicing and repairing the equipment. In sum, an employee who claims to have suffered injuries proximately caused by a previously identified and unremedied structural defect or unsafe condition affecting an item of power-operated heavy equipment or machinery has stated a cause of action under Labor Law § 241 (6) based on an alleged violation of 12 NYCRR 23-9.2 (a).

Here, plaintiff claims that there was no side handle available for the grinder on the day of his accident; that he complained to his supervisor about the missing handle—i.e., his employer had actual notice; that the absence of a handle constituted a structural defect in or an unsafe condition of the grinder; that his employer did not provide him with a handle or replace the allegedly defective grinder; and that the absence of the handle— i.e., the claimed structural defect or unsafe condition previously pointed out to his employer—proximately caused his injuries. Assuming that section 23-9.2 (a) is applicable, plaintiff has thereby alleged a breach of this provision of the Code. It would then remain for a jury to decide whether a violation, in fact, occurred; and whether the negligence of some party to, or participant in, the construction project caused plaintiffs injuries. If negligence is established, Shore would be vicariously liable for plaintiffs injuries without regard to fault.

Accordingly, the order of the Appellate Division should be reversed, with costs, and that branch of defendant’s motion for summary judgment seeking dismissal of plaintiffs Labor Law § 241 (6) cause of action against it should be denied.

Graffeo, J. (dissenting). Because I believe that 12 NYCRR 23-9.2 (a) does not contain a command that is sufficiently specific to support liability under Labor Law § 241 (6), I respectfully dissent. This Court has distinguished between Industrial Code provisions that merely reiterate the common-law standard of care and those that mandate compliance with concrete specifications (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 504-505 [1993]). Only the latter impose a nondelegable duty on an owner or general contractor who does not actually control the injured party’s work, giving rise to a Labor Law § 241 (6) claim. I agree with the First, Second and Third Departments that section 23-9.2 (a) does not contain the requisite specificity necessary for Labor Law § 241 (6) liability (see Hassett v Celtic Holdings, 7 AD3d 364, 365 [1st Dept 2004]; Fairchild v Servidone Constr. Co., 288 AD2d 665, 667-668 [3d Dept 2001]; Anarumo v Slattery Assoc., 298 AD2d 339, 340 [2d Dept 2002]).

Although other subdivisions of section 23-9.2 include detailed specifications, such as section 23-9.2 (e) (certain power-operated machines that do not run on diesel fuel must be stopped during refueling), section 23-9.2 (a) does not. In Ross v Curtis-Palmer Hydro-Elec. Co. (81 NY2d at 504), we held that a regulation that imposed a “duty to provide materials and equipment of such kind and quality as a reasonable and prudent [person] experienced in construction . . . operations would require in order to provide safe working conditions” was too general to create a nondelegable duty (see 12 NYCRR 23-1.4 [a]). In contrast, in Rizzuto v L.A. Wenger Contr. Co. (91 NY2d 343 [1998]), a regulation that stated that “[i]ce, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing” (12 NYCRR 23-1.7 [d]) was determined by us to be sufficiently specific. Similarly, in Morris v Pavarini Constr. (9 NY3d 47 [2007]), we concluded that a regulatory provision requiring that forms be “braced or tied together so as to maintain position and shape” was sufficiently specific, while the portion of the regulation that directed that forms be “structurally safe” was not (see 12 NYCRR 23-2.2 [a]).

The provisions deemed actionable in Rizzuto and Morris each involved hazards identified with particularity in the regulation (e.g. slippery foreign substances on floors, forms that were not tied or braced to maintain position and shape) and concrete commands concerning how to remedy or avoid the identified hazards (e.g. the “foreign substance . . . shall be removed, sanded or covered”; “Forms . . . shall be properly braced or tied together so as to maintain position and shape”). But the regulation here contains no such directive. It broadly states that machines must be kept in “good repair” and “proper operating condition,” and that unspecified “structural defect[s] or unsafe condition[s]” be remedied in some unidentified manner upon discovery.

As I see it, there is no distinction between the requirement that forms be kept structurally safe (which we deemed not sufficiently specific in Morris) and that structural defects/unsafe conditions be remedied. After all, the mandate that “[f]orms . . . shall be structurally safe” necessarily incorporates the command that a structural defect be remedied if it is discovered—yet we held in Morris that this part of the regulation was not actionable, and we did so even though the provision related to a specific construction element—forms. Because section 23-9.2 (a) does not identify a particular hazard with specificity or contain a concrete command relating to such a hazard, I believe it does nothing more than restate the common-law standard of care and does not give rise to a nondelegable duty on the part of an owner who did not control the project. I would, therefore, affirm the order of the Appellate Division, which granted summary judgment dismissing the Labor Law § 241 (6) claim.

I am also unpersuaded that the allegation that plaintiff told his supervisor about the tool’s defective condition before the injury occurred alters the resolution of this case. Until today, we have assessed whether a regulation was specific enough to support Labor Law § 241 (6) liability by examining the language used in the regulation, without regard to the facts alleged in a particular case. While the actions plaintiff took after he discovered the alleged defect may be pertinent to a comparative fault defense, they are not relevant to the threshold question of whether the regulation on which he relies contains the concrete mandate required to impose a nondelegable duty on an owner or general contractor.

As an alternative basis for affirmance, Judge Smith makes a compelling argument that section 23-9.2 (a) does not apply to the power hand tool involved in plaintiffs injury. But I cannot join in his dissent because this contention was neither preserved for review in the trial court nor raised by defendants in this Court. I view the preservation requirement as a constitutional limitation on this Court’s jurisdiction (see NY Const, art VI, § 3 [a] [“The jurisdiction of the court of appeals shall be limited to the review of questions of law except where the judgment is of death, or where the appellate division . . . finds new facts”]). With very few exceptions not relevant here, a party must raise an argument in the trial court to create an issue of law that can be reviewed in this Court (see e.g. Bingham v New York City Tr. Auth., 99 NY2d 355 [2003]). While we have recognized that some contentions present issues of law even if not preserved— such as errors so egregious that they affect the “mode of proceedings”—the possible inapplicability of the regulation in this case does not fall into any recognized exception. And even if the preservation hurdle could be surmounted, for purposes of this appeal, defendants waived the argument by not raising it in their briefs in this Court. It would therefore be improper to dismiss plaintiffs claim based on an issue that he has not had an opportunity to address.

Smith, J. (dissenting). Subpart 23-9 of the Industrial Code is limited by its terms to “heavy equipment or machinery” (12 NYCRR 23-9.1, quoted in majority op at 516). Thus section 23-9.2, which is part of subpart 23-9, is plainly inapplicable to the hand tool involved in this case. Yet, because defendant did not raise that point, the majority feels compelled to decide whether, if the regulation were applicable to hand tools, it would be specific enough to support plaintiffs claim—an exercise akin to deciding whether I would be a bicycle if I had wheels. I think it is unwise to decide such hypothetical questions, and I do not think our preservation jurisprudence requires it.

The authoritative work on practice in our Court, Karger, Powers of the New York Court of Appeals, states the “general rule” that “the Court of Appeals will not review a question raised for the first time on appeal” (§ 17:1, at 589 [3d ed rev]). Karger adds:

“Manifestly, however, if any such rule were to be applied in every case without qualification, it would often be stultifying. Thus, it might require appellate judges to sit as automatons, merely to register their reactions to the arguments which counsel had made below. The fortunes of litigation might then turn, not on the merits of a case, but on the skill or prescience of counsel in the court of first instance.
“An exception to the general rule has accordingly long been applied, subject to certain qualifications, that a newly raised point of law may be entertained on appeal where it is one which is decisive of the appeal and which could not have been obviated ‘by factual showings or legal countersteps’ if it had been raised below.” (Id. at 591-592 [footnotes omitted].)

The exception stated by Karger fits this case perfectly. The plain inapplicability of the regulation plaintiff relies on is decisive of this appeal, and could not have been obviated by any factual showings or legal countersteps if raised below.

Our preservation rule is an important one—so important that we have occasionally referred to it as a matter of “jurisdiction” (see e.g. People v Turriago, 90 NY2d 77, 80 [1997]). But it is not truly jurisdictional, in the sense of being a limitation on our power. We review unpreserved questions when common sense and practical necessity dictate that we should. Thus, in criminal cases, we review claimed “mode of proceedings” errors without regard for preservation (e.g. People v Ahmed, 66 NY2d 307, 310 [1985]); we review unpreserved claims of ineffective assistance of counsel, since it would be absurd to insist on preservation by the very counsel claimed to be ineffective (e.g. People v Lewis, 2 NY3d 224 [2004]); we review unpreserved claims relating to the sufficiency of accusatory instruments (e.g. People v Alejandro, 70 NY2d 133, 135, 139 [1987]) and the legality of sentences (e.g. People v Samms, 95 NY2d 52, 55-57 [2000]); and we review other claims where it is unreasonable to expect them to have been preserved below (e.g. People v Louree, 8 NY3d 541, 545-546 [2007]). We could do none of these things if the preservation rule were truly jurisdictional; common sense and practical necessity would be irrelevant.

Exceptions to the preservation requirement in civil cases (apart from quasi-criminal matters, like juvenile delinquency proceedings) are, for understandable reasons, much more rare than in criminal cases, but they do exist (see Matter of Rivera v Smith, 63 NY2d 501, 516 n 5 [1984] [“a new argument may be raised for the first time in the Court of Appeals if it could not have been obviated or cured by factual showings or legal countersteps in the court of first instance”]; American Sugar Ref. Co. of N.Y. v Waterfront Commn. of N.Y. Harbor, 55 NY2d 11, 25 [1982] [same]; Telaro v Telaro, 25 NY2d 433, 439 [1969] [“the general rule concerning questions raised neither at the trial nor at previous stages of appeal is far less restrictive than some case language would indicate”]). I do not suggest that we should make a regular practice of dispensing with the preservation requirement. But we clearly have the power to do so, and I think it is better to exercise that power in this case than to struggle with the difficult question of whether the regulation at issue, if it applied to the hand tool plaintiff used (which it does not), would entitle him to sue.

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

Order reversed, etc.

      . These are sections 23-9.3 (“Conveyors and Cableways”), 23-9.4 (“Power shovels and Backhoes Used for Material Handling”), 23-9.5 (“Excavating Machines”), 23-9.6 (“Aerial Baskets”), 23-9.7 (“Motor Trucks”), 23-9.8 (“Lift and Fork Trucks”), 23-9.9 (“Power Buggies”), 23-9.10 (“Pile Drivers”) and 23-9.11 (“Mixing Machines”).

      . Judge Graffeo suggests that we are departing from our precedent of “assess[ing] whether a regulation [is] specific enough to support Labor Law § 241 (6) liability by examining the language used in the regulation, without regard to the facts alleged in a particular case” (Graffeo, J., dissenting at 523). We disagree. We conclude that 12 NYCRR 23-9.2 (a) is specific enough to permit recovery under Labor Law § 241 (6) because the language of the regulation mandates particular conduct “[u]pon discovery”—or actual notice—of a structural defect or unsafe condition. An allegation that the plaintiff told his or her supervisor about the defective condition before the injury is simply one way of demonstrating the actual notice required by the language of the regulation.

       Because the majority bases its decision on the fact that plaintiff allegedly informed his employer of a defect in the tool before he was injured and the employer failed to remedy that defect, I presume the holdings in these Appellate Division decisions remain viable in circumstances where the plaintiff was unaware of the defective condition before the injury occurred and/or did not notify the employer.

       I acknowledge, however, that the majority has a point when it says it would be unfair to decide a question not argued in this Court. If I could persuade my colleagues not to require preservation here, I would favor inviting the parties to comment on the issue before we decided it.


source: Caselaw Access Project

author: Chief Judge Lippman.

license: Public Domain

text:
    [909 NE2d 573, 881 NYS2d 651]
    Frieda Sargiss, Appellant, v Marlene Magarelli, as Executor of Isaac G. Sargiss, Also Known as Isaac George Sarkissian, Deceased, et al., Respondents, et al., Defendants.
    Argued May 5, 2009;
    decided June 4, 2009

      POINTS OF COUNSEL

      Brett Kimmel, P.C., New York City (Myrna Felder of counsel), for appellant.
    I. The complaint pleaded the fraud with the required specificity. (Kaufman v Kaufman, 135 AD2d 786; Fine v Fine, 12 AD3d 399; Cruciata v Cruciata, 10 AD3d 349; Kojovic v Goldman, 35 AD3d 65; DiSalvo v Graff, 227 AD2d 298.) II. The action should not have been time-barred. (Abbate v Abbate, 82 AD2d 368; Fine v Fine, 12 AD3d 399; Kaufman v Kaufman, 135 AD2d 786; Chapin v Chapin, 12 AD3d 550.)

      Bleakley Platt & Schmidt, LLP, White Plains (William Hughes Mulligan, Jr., of counsel), for Marlene Magarelli, respondent.
    I. The complaint fails to state a cause of action for fraud with the required specificity. (Martin v City of Cohoes, 37 NY2d 162; Jiggetts v Dowling, 3 AD3d 326; County of Suffolk v Stone & Webster Eng’g Corp., 106 F3d 1112; Penna v Caratozzolo, 131 AD2d 738; Gervasio v Di Napoli, 126 AD2d 514.) II. Plaintiff’s first cause of action against all defendants was properly dismissed as barred by the statute of limitations. (Abbate v Abbate, 82 AD2d 368; Fine v Fine, 12 AD3d 399; Kaufman v Kaufman, 135 AD2d 786; Chapin v Chapin, 12 AD3d 550.)

      Walter L. Rich, White Plains, and Joseph S. Garafola for Julius Sargiss and others, respondents.
    I. The complaint fails to state a cause of action for fraud against Marlene Magarelli, Julius Sargiss, Alice Sargiss and Panrad Automotive Industries, Inc. (Lama Holding Co. v Smith Barney, 88 NY2d 413; Ward v City of New York, 15 AD3d 392; 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144; Parker v Leonard, 24 AD3d 1255; Gibraltar Steel Corp. v Gibraltar Metal Processing, 19 AD3d 1141; Riverbank Realty Co. v Koffman, 179 AD2d 542; Del Vecchio v Nassau County, 118 AD2d 615; Bereswill v Yablon, 6 NY2d 301; Satin v Satin, 69 AD2d 792; Factory Point Natl. Bank v Wooden Indian, 198 AD2d 563.) II. Plaintiffs claim is time-barred. (Kaufman v Cohen, 307 AD2d 113; Kaye v Kaye, 102 AD2d 682; Pechman v Pechman, 303 AD2d 479; Garguilio v Garguilio, 201 AD2d 617; Siler v Lutheran Social Servs. of Metro. N.Y., 10 AD3d 646; Von Blomberg v Garis, 44 AD3d 1033.)
   OPINION OF THE COURT

Chief Judge Lippman.

In July 1996, in connection with divorce proceedings prior to this action in which both parties were represented by counsel, the decedent husband, Isaac G. Sargiss, provided his wife, Frieda Sargiss, with a statement of net worth. The statement listed “PANRAD” as an asset, but the statement did not assign any value to that asset, leaving the space provided for that information blank. Panrad Automotive Industries, Inc. (Panrad) is a private corporation that owns two shopping centers. At one time shares in Panrad were owned by the decedent, defendant Julius Sargiss (decedent’s brother), and a third person. When and whether decedent’s ownership interest in Panrad ended before his death lies at the root of plaintiffs action.

When asked at his deposition in January 1998 whether he, at that time, owned shares in Panrad, the decedent testified that he did not because he had sold his shares in Panrad to his brother Julius for $250,000. Decedent testified that Julius paid him the $250,000 plus interest in 1993 pursuant to an agreement the brothers had entered into in 1990. Plaintiff and decedent ultimately reached a stipulation as to how to divide their assets in the divorce proceeding, and they were divorced in the spring of 1998. Decedent moved to California and had no further contact with plaintiff after the divorce.

Isaac G. Sargiss died on March 25, 2004. Shortly thereafter, decedent’s daughter discovered certain financial documents in his California home which suggested that decedent may not have sold his interest in Panrad to Julius, may have misrepresented his assets in his July 1996 statement of net worth, and may have testified falsely at his January 1998 deposition. Plaintiff commenced this fraud action in May 2005, more than six years after the fraud was allegedly perpetrated but less than two years from the discovery of the financial documents in decedent’s California home.

Plaintiff’s complaint alleges, among other things, that she relied on decedent’s representations during the divorce proceedings as to his net worth, that she was justified in relying on those representations, that documents discovered after decedent’s death show that decedent misrepresented his net worth in the divorce proceedings, that Julius, his wife Alice, and Pan-rad aided in the fraudulent misrepresentations, and that plaintiff would not have agreed to the 1998 stipulation if she had known the truth regarding decedent’s assets. The executor of decedent’s estate, Julius Sargiss, Alice Sargiss, and Panrad moved to dismiss the complaint pursuant to CPLR 3211 on grounds that the complaint did not plead fraud with sufficient specificity as required by CPLR 3016 (b) and that the action was untimely.

When a plaintiff brings a cause of action based upon fraud, “the circumstances constituting the wrong shall be stated in detail” (CPLR 3016 [b]). “The purpose of section 3016 (b)’s pleading requirement is to inform a defendant with respect to the incidents complained of,” thus, “[w]e have cautioned that section 3016 (b) should not be so strictly interpreted as to prevent an otherwise valid cause of action in situations where it may be impossible to state in detail the circumstances constituting a fraud” (Pludeman v Northern Leasing Sys., Inc., 10 NY3d 486, 491 [2008] [internal quotation marks and citation omitted]). What is “[c]ritical to a fraud claim is that a complaint allege the basic facts to establish the elements of the cause of action,” and although under CPLR 3016 (b) “the complaint must sufficiently detail the allegedly fraudulent conduct, that requirement should not be confused with unassailable proof of fraud” (id. at 492). “Necessarily, then, section 3016 (b) may be met when the facts are sufficient to permit a reasonable inference of the alleged conduct” (id.). On a CPLR 3211 motion to dismiss, a court may consider affidavits to remedy pleading problems (Leon v Martinez, 84 NY2d 83, 88 [1994]).

In connection with the motion to dismiss, the parties submitted affidavits attaching relevant documents, including certain of the financial documents found after decedent’s death. These indicate, among other things, that after decedent testified he had sold his shares to his brother Julius, he received a salary of $100,000 from Panrad and debited more than $700,000 from Panrad’s account. Moreover, decedent never negotiated the check given him in satisfaction of the interest to which he was purportedly entitled under the brothers’ agreement. Plaintiff has also submitted documents that seem to show that decedent was understood to have a half interest in Panrad’s cash in 1999, and that Julius asked decedent to reimburse him for half of a 1998 tax liability (thus indicating that Julius was claiming for tax purposes income that in fact belonged to decedent). To be sure, defendants submitted evidence in the form of affidavits and documents to rebut plaintiffs assertions, but these merely raise factual issues not properly decided on a motion to dismiss.

The complaint and the accompanying affidavits are sufficient to withstand scrutiny under CPLR 3016 (b) insofar as they allege fraud as against decedent’s estate, Julius Sargiss, and Panrad. Although plaintiffs “allegations of fraud were not directly lodged against” Julius Sargiss and Panrad in the complaint in the same detail as they were against the decedent, “the indirect circumstantial inference” of Julius’s fraudulent conduct and his “direct naming . . . with regard to the same conduct alleged, under the circumstances,” is sufficient (Pludeman, 10 NY3d at 492 n 3). If there was a fraudulent scheme, Julius’s knowledge of it and participation in it are clear because it would have been impossible for decedent to carry out the fraudulent scheme as alleged without Julius knowing of the scheme and participating in it. Plaintiffs allegations as to Pan-rad are also sufficient to survive the motion to dismiss given Panrad’s involvement in allegedly improper payouts to decedent based on an alleged continued ownership interest in the corporation, not to mention that Julius, an indispensable participant in the scheme as alleged, controls Panrad.

There is, however, nothing asserted in the complaint or in the parties’ submissions on the motion to dismiss that implicates Alice Sargiss in the alleged fraud, and, accordingly, the complaint was properly dismissed as against her.

With respect to the timeliness of plaintiffs action, a fraud-based action must be commenced within six years of the fraud or within two years from the time the plaintiff discovered the fraud or “could with reasonable diligence have discovered it” (CPLR 213 [8]; see CPLR 203 Eg]). The inquiry as to whether a plaintiff could, with reasonable diligence, have discovered the fraud turns on whether the plaintiff was “possessed of knowledge of facts from which [the fraud] could be reasonably inferred” (Erbe v Lincoln Rochester Trust Co., 3 NY2d 321, 326 [1957]). “Generally, knowledge of the fraudulent act is required and mere suspicion will not constitute a sufficient substitute” (id.). “Where it does not conclusively appear that a plaintiff had knowledge of facts from which the fraud could reasonably be inferred, a complaint should not be dismissed on motion and the question should be left to the trier of the facts” (Trepuk v Frank, 44 NY2d 723, 725 [1978]; see Erbe, 3 NY2d at 326). There is no indication that plaintiff had knowledge of the alleged fraud prior to her daughter’s discovery of certain financial documents in decedent’s California home after his death, and there is no dispute that plaintiff commenced this action within two years of this discovery. Moreover, on the record before us, it is unclear how plaintiff could have discovered the alleged fraud earlier than she did.

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

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

Order modified, etc.


author: Pigott, J.

text:
    [911 NE2d 825, 883 NYS2d 763]
    Lee N. Koehler, Appellant, v The Bank of Bermuda Limited, Respondent.
    Argued April 28, 2009;
    decided June 4, 2009

      POINTS OF COUNSEL

      Paul F. Newhouse, of the Maryland bar, admitted pro hac vice, for appellant.
    I. New York courts have express statutory authority to order delivery of assets of the judgment debtor located outside New York. (Warner v Fourth Natl. Bank, 115 NY 251; Simpson v Jersey City Contr. Co., 165 NY 193; Shaffer v Heitner, 433 US 186; Starbare II Partners v Sloan, 216 AD2d 238; Miller v Doniger, 28 AD3d 405; Gryphon Dom. VI, LLC v APP Intl. Fin. Co., B.V., 41 AD3d 25; Morgenthau v Avion Resources Ltd., 49 AD3d 50; ABKCO Indus. v Apple Films, 39 NY2d 670; Matter of National Union Fire Ins. Co. of Pittsburgh, Pa. v Advanced Empl. Concepts, 269 AD2d 101; Fleming v Gray Mfg. Co., 352 F Supp 724.) II. New York law authorizes a turnover order covering assets held outside the court’s territorial jurisdiction so long as personal jurisdiction and a New York situs exist. (Alliance Bond Fund, Inc. v Grupo Mexicano De Desarrollo, S.A., 190 F3d 16; ABKCO Indus. v Apple Films, 39 NY2d 670; Simpson v Jersey City Contr. Co., 165 NY 193; Warner v Fourth Natl. Bank, 115 NY 251; Suffolk Auto Liquidators v Eastern Auto Auction, 74 Misc 2d 411; Lutes v Shenk, 285 App Div 416; Inter-Regional Fin. Group, Inc. v Hashemi, 562 F2d 152; Fleming v Gray Mfg. Co., 352 F Supp 724; Fidelity Partners, Inc. v First Trust Co. of N.Y., 58 F Supp 2d 55; In re Feit & Drexler, Inc., 760 F2d 406.)

      Friedman Kaplan Seiler & Adelman LLP, New York City (Daniel B. Rapport, Robert J. Lack and Jason C. Rubinstein of counsel), for respondent.
    I. A New York court cannot order a bank, as garnishee, to deliver into the state stock certificates owned by a judgment debtor, or cash equal to their value. (National Broadway Bank v Sampson, 179 NY 213; Hotel 71 Mezz Lender LLC v Falor, 58 AD3d 270; ABKCO Indus. v Apple Films, 39 NY2d 670; Carr v Corcoran, 44 App Div 97; Capital

      Distribs. Servs., Ltd. v Ducor Express Airlines, Inc., 440 F Supp 2d 195; Fidelity Partners, Inc. v Philippine Export & Foreign Loan Guar. Corp., 921 F Supp 1113; Intercontinental Credit Corp. Div. of Pan Am. Trade Dev. Corp. v Roth, 152 Misc 2d 751; Overby v Gordon, 177 US 214; Hanson v Denckla, 357 US 235; Plimpton v Bigelow, 93 NY 592.) II. A. David Dodwell’s stock certificates are the only property at issue on this appeal. (ABKCO Indus. v Apple Films, 39 NY2d 670; Glassman v Hyder, 23 NY2d 354; Simpson v Jersey City Contr. Co., 165 NY 193; Warner v Fourth Natl. Bank, 115 NY 251; Lutes v Shenk, 285 App Div 416; Suffolk Auto Liquidators v Eastern Auto Auction, 74 Misc 2d 411; Fidelity Partners, Inc. v Philippine Export & Foreign Loan Guar. Corp., 921 F Supp 1113.)

      Sullivan & Cromwell LLP, New York City (H. Rodgin Cohen, Bruce E. Clark, Michael M. Wiseman, Daniel A. Goldschmidt and Norman R. Nelson of counsel), for Clearing House Association L.L.C., amicus curiae.
    I. Article 52 of the CPLR does not empower a New York court to order a garnishee bank to deliver stock certificates located outside of the jurisdiction into the state. (Gryphon Dom. VI, LLC v APP Intl. Fin. Co., B.V., 41 AD3d 25; Starbare II Partners v Sloan, 216 AD2d 238; Hotel 71 Mezz Lender LLC v Falor, 58 AD3d 270; National Broadway Bank v Sampson, 179 NY 213; ABKCO Indus. v Apple Films, 39 NY2d 670; Commercial Credit Corp. v Young, 258 App Div 323; Miller v Doniger, 28 AD3d 405; Shaffer v Heitner, 433 US 186; Lenchyshyn v Pelko Elec., 281 AD2d 42; Fine v Spierer, 109 AD2d 611.) II. The Court should not answer the certified question in a manner that conflicts with the separate entity rule. (Cronan v Schilling, 282 App Div 940; Matter of National Union Fire Ins. Co. of Pittsburgh, Pa. v Advanced Empl. Concepts, 269 AD2d 101; Digitrex, Inc. v Johnson, 491 F Supp 66; Limonium Mar., S.A. v Mizushima Marinera, S.A., 961 F Supp 600; Fidelity Partners, Inc. v Philippine Export & Foreign Loan Guar. Corp., 921 F Supp 1113; Motorola Credit Corp. v Uzan, 288 F Supp 2d 558.) III. An affirmative answer to the certified question would have serious adverse practical consequences. (Gryphon Dom. VI, LLC v APP Intl. Fin. Co., B.V., 41 AD3d 25; Islamic Republic of Iran v Pahlavi, 62 NY2d 474; O’Connell v Corcoran, 1 NY3d 179.) IV. The Court should answer the certified question in the negative to avoid unnecessary conflicts with the laws of other jurisdictions. (International Multifoods Corp. v Commercial Union Ins. Co., 98 F Supp 2d 498; Ehrlich-Bober & Co. v University of Houston, 49 NY2d 574.)
   OPINION OF THE COURT

Pigott, J.

The United States Court of Appeals for the Second Circuit, by certified question, asks us to decide whether a court sitting in New York may order a bank over which it has personal jurisdiction to deliver stock certificates owned by a judgment debtor (or cash equal to their value) to a judgment creditor, pursuant to CPLR article 52, when those stock certificates are located outside New York. We answer the certified question in the affirmative.

I.

Sixteen years ago, on June 4, 1993, the United States District Court for the District of Maryland awarded Lee N. Koehler, a citizen of Pennsylvania, a default judgment in the sum of $2,096,343 against his former business partner, A. David Dodwell. Koehler duly registered the Maryland judgment in the United States District Court for the Southern District of New York. At that time, Dodwell, a resident of Bermuda, owned stock in a Bermuda corporation, of which he and Koehler had been shareholders, and certificates representing Dodwell’s shares were in the possession of the Bank of Bermuda Limited (BBL), and located in that country. Dodwell had pledged the shares to BBL as collateral for a loan.

On October 27, 1993, Koehler filed a petition against BBL in the United States District Court for the Southern District of New York, seeking “payment or delivery of property of judgment debtor,” and citing CPLR article 52. Koehler served the petition upon an officer of the Bank of Bermuda (New York) Limited, which he claimed to be a New York subsidiary and agent of BBL. On October 29, 1993, the District Court ordered BBL to deliver the stock certificates, or monies sufficient to pay the judgment, to Koehler. It is this turnover order that is the subject of the certified question before us.

BBL argued before the District Court that service upon the New York bank did not subject BBL to the personal jurisdiction of the court. Although this jurisdictional issue was the subject of litigation in federal court for some 10 years, BBL eventually consented, by letter dated October 9, 2003, to the personal jurisdiction of the court as of the time that Koehler had commenced the proceeding.

In 2004, BBL revealed that the stock certificates were no longer in its possession. The obligations for which BBL had held the certificates as collateral had been satisfied and BBL—despite the District Court’s turnover order—had transferred the stock to a Bermudan company existing for Dodwell’s benefit in July 1994. On March 9, 2005, the District Court dismissed Koehler’s petition, on several grounds, including that the federal court had no in rem jurisdiction over Dodwell’s shares (2005 WL 551115, 2005 US Dist LEXIS 3760 [SD NY 2005]). In doing so, the District Court relied on the principle that a New York court cannot attach property that is not within the state.

Koehler appealed to the Second Circuit, which observed that New York law does not make clear whether a court sitting in New York has the authority under CPLR 5225 (b) to order a defendant, other than the judgment debtor himself, to deliver assets into New York, when the court has personal jurisdiction over the defendant but the assets are not located in New York. The Second Circuit, finding no controlling precedent from our Court, certified this dispositive jurisdictional question to us (544 F3d 78 [2008]).

II.

CPLR article 52 governs the enforcement of money judgments and orders directing the payment of money. By contrast, prejudgment attachment is governed by CPLR article 62. Enforcement proceedings and attachment proceedings, while similar in many ways, differ fundamentally in respect to a court’s jurisdiction. While prejudgment attachment is typically based on jurisdiction over property, postjudgment enforcement requires only jurisdiction over persons.

Article 52 authorizes a judgment creditor to file a motion against a judgment debtor to compel turnover of assets or, when the property sought is not in the possession of the judgment debtor himself, to commence a special proceeding against a garnishee who holds the assets. CPLR 5225, the provision applicable here, supplies judgment creditors with a device known as a “delivery order” or “turnover order.” With respect to garnishees, CPLR 5225 (b) allows a New York court to issue a judgment ordering a party to deliver the property in which the judgment debtor has an interest, or to convert it to money for payment of the debt. “[W]here it is shown that the judgment debtor is entitled to the possession of such property . . . , the court shall require such person to pay the money, or so much of it as is sufficient to satisfy the judgment, to the judgment creditor” (CPLR 5225 [b]). Disobedience of a turnover order is contempt of court and punishable as such.

The requirement that the judgment creditor proceed against the garnishee, rather than by a device operating on the property alone, recognizes the possibility that the garnishee, or a fourth party, may assert its own interests in the property.

“If there are any other claimants to the property or money involved, they can be allowed to intervene, if, indeed, the judgment creditor has not already joined them in the first place, or the garnishee interpleaded them. . . . The special proceeding, in short, can be converted into a full-fledged test of precisely whom the disputed property or debt belongs to . . . .” (Siegel, NY Prac § 510, at 868 [4th ed].)

By contrast, an article 62 attachment proceeding operates only against property, not any person. By means of attachment, a creditor effects the prejudgment seizure of a debtor’s property, to be held by the sheriff, so as to apply the property to the creditor’s judgment if the creditor should prevail in court. Attachment simply keeps the debtor away from his property or, at least, the free use thereof; it does not transfer the property to the creditor. It is frequently used when the creditor suspects that the debtor is secreting property or removing it from New York and/or when the creditor is unable to serve the debtor, despite diligent efforts, even though the debtor would be within the personal jurisdiction of a New York court (see CPLR 6201). Attachment has also been used to confer jurisdiction. When a debtor is neither a domiciliary nor a resident of New York—so that the creditor cannot obtain personal jurisdiction of the debt- or—but owns assets in New York, courts have exercised jurisdiction over the debtor. This quasi in rem jurisdiction is subject to the due process restrictions outlined by the United States Supreme Court in Shaffer v Heitner (433 US 186 [1977]; see generally Siegel, NY Prac §§ 104, 313, 314 [4th ed]).

In short, article 52 postjudgment enforcement involves a proceeding against a person—its purpose is to demand that a person convert property to money for payment to a creditor— whereas article 62 attachment operates solely on property, keeping it out of a debtor’s hands for a time. We approach the certified question with these differences in mind.

III.

It is well established that, where personal jurisdiction is lacking, a New York court cannot attach property not within its jurisdiction. “[I]t is a fundamental rule that in attachment proceedings the res must be within the jurisdiction of the court issuing the process, in order to confer jurisdiction” (National Broadway Bank v Sampson, 179 NY 213, 223 [1904], quoting Douglass v Phenix Ins. Co. of Brooklyn, N. Y., 138 NY 209, 219 [1893]; accord Hotel 71 Mezz Lender LLC v Falor, 58 AD3d 270, 273 [1st Dept 2008]; Matter of National Union Fire Ins. Co. of Pittsburgh, Pa. v Advanced Empl. Concepts, 269 AD2d 101 [1st Dept 2000]). Significantly, “attachment suits partake of the nature of suits in rem, and are distinctly such when they proceed without jurisdiction having been acquired of the person of the debtor in the attachment” (Douglass, 138 NY at 218). But it is equally well established that “[hjaving acquired jurisdiction of the person, the court[ ] can compel observance of its decrees by proceedings in personam against the owner within the jurisdiction” (id. at 219). The certified question concerns the latter process.

CPLR article 52 contains no express territorial limitation barring the entry of a turnover order that requires a garnishee to transfer money or property into New York from another state or country. It would have been an easy matter for the Legislature to have added such a restriction to the reach of article 52 and there is no basis for us to infer it from the broad language presently in the statute. Moreover, we note that the Legislature has recently amended CPLR 5224 so as to facilitate disclosure of materials that would assist judgment creditors in collecting judgments, when those materials are located outside New York. The 2006 amendment adds a subdivision that expressly allows the securing of out-of-state materials by in-state service of a subpoena on the party in control of the materials. Recent legislation thus supports our conclusion that the Legislature intended CPLR article 52 to have extraterritorial reach.

The First Department of the Appellate Division has expressly held that judgment debtors can be ordered to turn over out-of-state assets under CPLR article 52 (see Gryphon Dom. VI, LLC v APP Intl. Fin. Co., B.V., 41 AD3d 25 [1st Dept 2007], lv denied 10 NY3d 705 [2008]; see also Miller v Doniger, 28 AD3d 405 [1st Dept 2006]; Starbare II Partners v Sloan, 216 AD2d 238 [1st Dept 1995]). “[T]he explicit rationale was that the court could order the defendant judgment debtor to turn over property because it had personal jurisdiction over the defendant” (Gryphon, 41 AD3d at 31, citing Starbare, 216 AD2d at 239). Recently, the First Department endorsed the position that “New York courts have the power to command a garnishee present in the state to bring out-of-state assets under the garnishee’s control into the state” (Morgenthau v Avion Resources Ltd., 49 AD3d 50, 54 [1st Dept 2007], mod on other grounds 11 NY3d 383 [2008]).

As that court noted, the key to the reach of the turnover order is personal jurisdiction over a particular defendant. “[A] turnover order merely directs a defendant, over whom the New York court has jurisdiction, to bring its own property into New York” (Gryphon, 41 AD3d at 31). A New York court has the authority to issue a turnover order pertaining to extraterritorial property, if it has personal jurisdiction over a judgment debtor in possession of the property. “As long as the debtor is subject to the court’s personal jurisdiction, a delivery order can be effective even when the property sought is outside the state” (Siegel, NY Prac § 510, at 866 [4th ed]).

Indeed, BBL concedes that, when a judgment debtor is subject to a New York court’s personal jurisdiction, that court has jurisdiction to order the judgment debtor to bring property into the state, because the court’s authority is based on its personal jurisdiction over the judgment debtor. BBL argues, however, that when the judgment debtor—in this case Dodwell—is not within the personal jurisdiction of the New York court, the court’s authority over the judgment debtor’s property must be based on in rem jurisdiction, even if the garnishee is within the court’s personal jurisdiction. Because we find no indication in CPLR 5225 that in rem jurisdiction is required in such circumstances, we disagree.

Both CPLR 5225 (a) and (b) provide that a judgment creditor may obtain an order from a New York court, requiring a defendant who is in possession or custody of money or other personal property in which a judgment debtor has an interest to turn over the property or pay the money to the judgment creditor. CPLR 5225 (a) applies when the property sought is in the possession of the judgment debtor himself. CPLR 5225 (b) applies when the property is not in the judgment debtor’s possession. The most significant difference between the subdivisions is that CPLR 5225 (a) is invoked by a motion made by the judgment creditor, whereas CPLR 5225 (b) requires a special proceeding brought by the judgment creditor against the garnishee. The reason for this procedural distinction is that the garnishee, not being a party to the main action, has to be independently subjected to the court’s jurisdiction. But both CPLR 5225 (a) and (b) contemplate an order, directed at a defendant who is amenable to the personal jurisdiction of the court, requiring him to pay money or deliver property. Neither contemplates the situation in which attachment is typically sought—where it would be impossible or futile to protect a creditor’s rights by means of an order issued to defendant (see CPLR 6201). In the attachment scenario, authority is conferred on the court in part or in whole by the situs of property within New York. In post-judgment enforcement, such in rem jurisdiction is not required. Bearing in mind the fundamental differences between enforcement and attachment discussed above, we hold that a New York court with personal jurisdiction over a defendant may order him to turn over out-of-state property regardless of whether the defendant is a judgment debtor or a garnishee.

IV

In short, the principle that a New York court may issue a judgment ordering the turnover of out-of-state assets is not limited to judgment debtors, but applies equally to garnishees. Consequently, we conclude that a court sitting in New York that has personal jurisdiction over a garnishee bank can order the bank to produce stock certificates located outside New York, pursuant to CPLR 5225 (b).

Accordingly, the certified question should be answered in the affirmative.

Smith, J. (dissenting). The majority holds in substance that a judgment may be enforced by garnishment in New York if the garnishee is subject to New York jurisdiction, even though the judgment creditor, the judgment debtor and the property that the judgment creditor is trying to seize are all elsewhere. I would not read New York’s garnishment statutes so expansively. Such a broad garnishment remedy is unsupported by any precedent in New York or, apparently, in any other jurisdiction. Its policy implications are troubling, and it may well be unconstitutional in many of its applications.

The majority’s holding opens a forum-shopping opportunity for any judgment creditor trying to reach an asset of any judgment debtor held by a bank (or other garnishee) anywhere in the world. If the bank has a New York branch—either one that is not separately incorporated, or a subsidiary with which the parent’s relationship is close enough to subject the parent to New York jurisdiction—the judgment creditor, having registered the judgment in New York, can obtain an order requiring the asset to be delivered here. It is, apparently, irrelevant whether New York has any relationship with the judgment creditor, the judgment debtor or the dispute between them—indeed, in this case, so far as the record shows, no such relationship exists. And what a judgment creditor can do in New York, he can also do in Alabama, Alaska and 47 other states, if those states interpret their garnishment statutes as the majority interprets ours.

To offer this opportunity to judgment creditors seems to me a recipe for trouble. There may be competing claims to the asset, by parties who think they have as much right to it as the judgment creditor. It is obvious that claims against a single asset should be decided in a single forum—and almost equally obvious that that forum should be, as it traditionally has been, a court of the jurisdiction in which the asset is located. If any court with power over the garnishee can order the garnishee to change the asset’s location, significant disruption in the process of deciding whose rights are superior seems inevitable. And the business of banking itself, for banks with offices in several states or countries, will also be disrupted. The Clearing House Association L.L.C., an association of banks operating in New York and many other domestic and international jurisdictions, has submitted an amicus brief predicting for its members and other banks significant administrative burdens, and risks of being subject to conflicting adjudications, resulting from the rule the majority now adopts. These fears may be exaggerated, but it seems unwise to put that question to the test.

It would not matter, of course, whether the majority’s rule were wise or unwise if our Legislature had enacted it, or if our precedents required us to follow it. But neither is true. The relevant statutes, CPLR 5201 (b) (defining “property”) and 5225 (b) (relating to payment or delivery of property not in the possession of the judgment debtor), say nothing about the extraterritorial effects of garnishment proceedings. The majority points out that the statute relating to garnishment in judgment enforcement proceedings (CPLR 5225 [b]), unlike the statutes governing prejudgment attachment (CPLR art 62), operates in personam, rather than in rem; that difference does not suggest to me, however, that the Legislature intended the judgment-enforcement statute to have broader extraterritorial impact. Rather, I think the difference arises from the differing nature of prejudgment and postjudgment remedies: prejudgment remedies are designed, essentially, to freeze assets in place, while postjudgment remedies serve to compel their transfer and/or sale. An in rem approach is adequate for the former purpose, but an in personam remedy is better suited to the latter. Whether, and to what extent, the Legislature intended post-judgment remedies to reach property outside New York is a different question, one that the text of the statutes does not answer.

Nor has the judgment creditor cited any case, from New York or anywhere else, in which it has been held that a third-party garnishee that is independent of the judgment debtor may be compelled to bring assets into a state as part of judgment enforcement proceedings. The judgment creditor relies on several Appellate Division cases (Gryphon Dom. VI, LLC v APP Intl. Fin. Co., B.V., 41 AD3d 25 [1st Dept 2007]; Miller v Doniger, 28 AD3d 405 [1st Dept 2006]; Starbare II Partners v Sloan, 216 AD2d 238 [1st Dept 1995]) in which judgment debtors (and, in Miller, family members who had received presumptively fraudulent transfers) were ordered to bring property into the state. But those cases are distinguishable. Judgment debtors who can control where property is located may put it out of reach in order to frustrate enforcement of the judgment, and it may well be reasonable to prevent or thwart such maneuvers by ordering the property brought into New York. But this reasoning does not apply to third parties like the Bank of Bermuda here, which had interests independent of the judgment debtor and was presumably dealing with him at arm’s length.

The case that is perhaps most relevant to the question the Second Circuit has asked us seems to me to support a negative answer. In United States v First Natl. City Bank (321 F2d 14 [1963], revd 379 US 378 [1965]), the United States, trying to collect taxes owed by a Uruguayan corporation, sought an in personam order against a New York bank to freeze, pendente lite, assets of the Uruguayan company that were on deposit in the bank’s branches outside the United States. The Second Circuit rejected the government’s claim, on the ground that “the garnishor obtains no greater right against the garnishee than the garnishee’s creditor had” (321 F2d at 19). The Second Circuit held that, since the bank’s depositor could not require payment in New York of the overseas deposits, the government could not do so either. The Supreme Court reversed, stressing that the case involved only a pendente lite injunction, but seemed to endorse the Second Circuit’s basic theory: that the government’s rights as creditor were limited to “whatever rights the debtor . . . may have” against the garnishee bank (379 US at 381). Here, the judgment creditor has made no attempt to show—and there is no apparent basis for concluding—that the judgment debtor could have compelled the Bank of Bermuda to deliver the shares to the judgment debtor in New York. First National City Bank implies that the judgment creditor should not be permitted to do what the judgment debtor could not do.

The majority’s broad view of New York’s garnishment remedy may cause it to exceed the limits placed on New York’s jurisdiction by the Due Process Clause of the Federal Constitution. In Shaffer v Heitner (433 US 186, 212 [1977]), the Supreme Court held that “all assertions of state-court jurisdiction,” whether labeled in personam, in rem or quasi in rem, must be evaluated according to the standards contained in International Shoe Co. v Washington (326 US 310 [1945])—i.e., according to “traditional notions of fair play and substantial justice” (326 US at 316, quoting Milliken v Meyer, 311 US 457, 463 [1940]). The Supreme Court has never had occasion to apply the International Shoe standard to judgment enforcement proceedings, but a footnote in Shaffer makes clear that the traditional in rem approach of such proceedings—permitting judgments to be enforced against property wherever it may be located—is constitutionally acceptable:

“Once it has been determined by a court of competent jurisdiction that the defendant is a debtor of the plaintiff, there would seem to be no unfairness in allowing an action to realize on that debt in a State where the defendant has property, whether or not that State would have jurisdiction to determine the existence of the debt as an original matter” (433 US at 210 n 36).

It is by no means equally clear that the novel in personam approach to judgment enforcement that the majority adopts today can meet the International Shoe standard. A somewhat similar question was carefully considered in a recent decision of the Maryland Court of Special Appeals, Livingston v Naylor (173 Md App 488, 920 A2d 34 [2007]). In that case, a judgment creditor, a nonresident of Maryland, was trying to garnish in Maryland the wages of a judgment debtor, also a nonresident of Maryland, owed to him for work not done in Maryland. Though the garnishee was subject to Maryland jurisdiction, the court in Livingston held that there would be “a lack of fair play and substantial justice in permitting such wages to be garnished by operation of a Maryland court order” (173 Md App at 517, 920 A2d at 51).

In this case, as I have mentioned, the record discloses no New York contact with the parties or the dispute, except the amenability of the Bank of Bermuda, the garnishee, to personal jurisdiction in this state. I have serious doubt that that is enough contact under International Shoe to justify the enforcement of a non-New York judgment by a non-New York creditor against a non-New York debtor, to recover an asset that is located in Bermuda. The constitutional issue, of course, is not before us; the Second Circuit does not turn to us for rulings on federal constitutional law. The constitutional issue may not even be before the federal courts in this action, and if it had been raised there the judgment creditor might have been able to show enough New York contact to make the result he seeks constitutional. Still, I think the majority errs in interpreting New York’s garnishment statutes in a way that will render them, as applied in future cases, subject to constitutional challenge.

I would answer the certified question no.

Chief Judge Lippman and Judges Ciparick and Graffeo concur with Judge Pigott; Judge Smith dissents and votes to answer the certified question in the negative in a separate opinion in which Judges Read and Jones concur.

Following certification of a question by the United States Court of Appeals for the Second Circuit and acceptance of the question by this Court pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), and after hearing argument by counsel for the parties and consideration of the briefs and the record submitted, certified question answered in the affirmative.

       Specifically, subdivision (a-1) provides that
      “[a] subpoena duces tecum authorized by this rule and served on a judgment debtor, or on any individual while in the state, or on a corporation, partnership, limited liability company or sole proprietorship doing business, licensed, qualified, or otherwise entitled to do business in the state, shall subject the person or other entity or business served to the full disclosure prescribed by section fifty-two hundred twenty-three of this article whether the materials sought are in the possession, custody or control of the subpoenaed person, business or other entity within or without the state” (emphasis added).


author: Read, J.

text:
    [910 NE2d 993, 883 NYS2d 164]
    Melanie Petrone, Respondent, v Bernard Fernandez, Defendant, and James McCloy, Appellant.
    Argued May 7, 2009;
    decided June 9, 2009

      POINTS OF COUNSEL

      Terence F. Gilheany, New York City, and Bailey & Sherman, P.C., Douglaston, for appellant.
    The Appellate Division’s order, insofar as appealed from, should be reversed, and defendant-appellant James McCloy should be granted summary judgment dismissing the remaining common-law negligence cause of action. (Bard v Jahnke, 6 NY3d 592; Alia v Fiorina, 39 AD3d 1068.)

      Law Offices of Michael A. Cervini, Jackson Heights (Michael A. Cervini and Robin Mary Heaney of counsel), for respondent.
    I. Defendant’s failure to restrain the dog and his violation of the leash law create a basis for liability even in the absence of proof of the rottweiler’s vicious propensities. (Bard v Jahnke, 6 NY3d 592; Hyland v Cobb, 252 NY 325; People ex rel. Knoblauch v Warden, 216 NY 154.) II. Public policy requires the enforcement of New York City’s leash law.
   OPINION OF THE COURT

Read, J.

On May 9, 2005, plaintiff Melanie Petr one, a mail carrier employed by the United States Postal Service, was making the rounds on a “drive-out” mail route in Douglaston, Queens. At about 11:30 a.m., she parked her Honda Accord along the side of a one-way roadway, directly across the street from the house where defendant James McCloy resided at the time. The house’s front door is set back about 15 feet from the sidewalk, and the lawn slopes down toward the street. The lawn is unfenced. As plaintiff got out of her car, she observed at least two landscapers working on the house’s lawn. After she had walked about six feet toward the house, plaintiff also saw a dog—defendant’s then nine-year-old rottweiler—lying on the lawn, unleashed. She immediately “turned back to walk back to [her] vehicle,” intending to skip the mail delivery because of the unrestrained dog, a postal procedure she called “flagging” a house.

According to plaintiff, when she was about four feet from her car, she “turned to see if the dog had moved and the dog had proceeded to run at [her] from the top of the hill”; and had come to within approximately six feet of her. She “ran” the short remaining distance to her car, and “tried to jump through” the open window on the driver’s side “[l]egs first.” As plaintiff describes what she did, she “grabbed” the car and flung her right leg through the open window, jamming her right middle finger on “[t]he outside of the doorframe where the window comes down” as she executed this maneuver. She ended up stuck in an awkward position—with her right leg inside the car and her left leg outside—and “screaming . . . for someone to help.” The dog was “[r]ight next to [her],” but “did not do anything.” Plaintiff does not recall whether the dog ever barked at her. In other words, the dog did not bite or threaten or apparently make any contact whatsoever with plaintiff.

Plaintiffs cries attracted the landscapers’ attention and assistance. And defendant, who was near the house, “yelled for the dog to come back,” and the dog obeyed. Defendant then approached plaintiff, and they had a conversation that “was just about panic and [defendant] had come over to say that the dog’s okay, he doesn’t do anything,” and plaintiff was “just very scared at that point. Just letting [defendant] know how nervous [she] was at that point.”

Plaintiff handed defendant his mail, and continued on her rounds. Soon, however, she “felt pain” in her right middle finger, which “began to bruise.” She called her shop steward to tell him what had happened and he, in turn, informed her manager. The manager met and accompanied plaintiff to a nearby medical facility where her injured finger was X-rayed, and diagnosed as “possibl[y] fracture[d].” As a result of this diagnosis, plaintiff’s right middle finger was splinted for about five weeks, and taped to the adjoining finger for an additional week or so; no medication was ever prescribed to her for the injury. Plaintiff missed about six weeks of work, but was paid her fhll salary during the absence. At the time of her deposition, 10 months after the incident, plaintiff complained that the finger “still ache[dj,” especially in the “colder weather,” and was “hard to bend . . . still.” In addition, she could not “really put any pressure on it,” and had “a hard time opening bottles.” Plaintiff also was required to “vary [her] work” when “do[ing] what’s called, ‘finger[ing] the mail’ ” on account of the residual stiffness of her finger.

In September 2005, plaintiff sued defendant and the owner of the house for personal injuries as a result of her encounter with the dog. She alleged a first cause of action based on defendants’ supposed knowledge of the dog’s “prior history of vicious propensities”; and a second cause of action for negligence because of defendants’ “violation of. . . laws, statute[s], regulation[s], and ordinance[s].” The second cause of action was essentially premised on the local leash law, section 161.05 (a) of the New York City Health Code (24 RCNY 161.05 [a]), which provides that “a person who owns, possesses or controls a dog shall not permit it to be in a public place or in any open or unfenced area abutting on a public place unless the dog is effectively restrained by a leash or other restraint not more than six feet long” (emphasis added).

In May 2006, the owner of the house sought summary judgment dismissing the complaint. Citing our decision in Collier v Zambito (1 NY3d 444 [2004]), he observed that there was “no indication that either of the defendants had any knowledge of any type of vicious propensities,” or “that the dog[ ] in question actually did anything vicious.” He also pointed out that he did not own the dog and was not present when the complained-of events took place. Defendant supported his codefendant’s motion, stating that although plaintiff “trie[d] to distinguish this case by claiming ‘common law negligence’ . . ., it is or should be clear that, just as in a ‘dog bite’ case, a vicious propensity must be shown in an alleged ‘dog chase’ case,” and that “[n]o such showing has or can be made.”

Supreme Court issued a decision, dated November 29, 2006, granting the motion and, after searching the record, dismissing the complaint against both defendants. The court noted that the owner of the house had made out a prima facie case of entitlement to summary judgment by showing that he had no knowledge of the dog’s vicious propensities; that “the dog, in fact, neither had vicious propensities nor behaved in a manner that reflected] a proclivity to act in a way that put others at risk of harm”; and that “the dog’s alleged conduct that resulted in plaintiffs injuries was not vicious or reasonably foreseeable.” Further, plaintiff failed to rebut this prima facie case “with evidence establishing either the existence of the [dog’s] alleged vicious propensities or [the owner of the house’s] knowledge thereof.” Supreme Court opined that “the mere fact that the dog was unrestrained at the time of the subject incident [does] not raise a triable issue of fact as liability cannot be premised solely on the fact that defendant. . . left the dog unrestrained.”

Plaintiff subsequently took an appeal, which she limited to the trial court’s dismissal of her negligence cause of action against both defendants. The Appellate Division held, contrary to the Third Department’s decision in Alia v Fiorina (39 AD3d 1068 [3d Dept 2007]), that a dog owner “may be held liable to a plaintiff based upon an alleged violation of a local leash ordinance and the dog’s behavior, even though the dog ha[s] not displayed any prior vicious propensities” (Petrone v Fernandez, 53 AD3d 221, 222 [2d Dept 2008]). As a consequence, the court deleted the provision of Supreme Court’s order which awarded summary judgment dismissing the negligence cause of action against defendant. The Appellate Division has asked us if this portion of its order was properly made, and we conclude that it was not.

“[W]hen harm is caused by a domestic animal, its owner’s liability is determined solely by application of the rule articulated in Collier” (Bard v Jahnke, 6 NY3d 592, 599 [2006] [emphasis added])—i.e., the rule of strict liability for harm caused by a domestic animal whose owner knows or should have known of the animal’s vicious propensities (see Collier, 1 NY3d at 446-447; see also Bard, 6 NY3d at 601 [R.S. Smith, J., dissenting] [objecting to “the rule . . . adopted by the majority, that the strict liability involved in Collier is the only kind of liability the owner of a domestic animal may face—that, in other words, there is no such thing as negligence liability where harm done by domestic animals is concerned”]). Just last year we unanimously affirmed an Appellate Division decision rejecting the notion that a negligence cause of action survives Collier and Bard (see Bernstein v Penny Whistle Toys, Inc., 10 NY3d 787 [2008], affg 40 AD3d 224 [1st Dept 2007]). Here, defendant’s violation of the local leash law is “irrelevant because such a violation is only some evidence of negligence, and negligence is no longer a basis for imposing liability” after Collier and Bard (Alia, 39 AD3d at 1069).

Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs; that part of Supreme Court’s order dismissing the second cause of action against defendant James McCloy should be reinstated; and the certified question should be answered in the negative.

Pigott, J. (concurring). I write separately to make clear that, while I concur with the majority in this case, I do so on constraint of Bard v Jahnke (6 NY3d 592 [2006]).

In Bard, the plaintiff, a carpenter, was injured by a bull that, for breeding purposes, was allowed to roam freely in the barn in which Bard was working. Bard submitted the affidavit of an animal science expert, who opined that “bulls, in particular breeding bulls, are generally dangerous and vicious animals,” and that the farmer should have restrained the bull or warned Bard of its presence (id. at 596).

The Court endorsed the standard proposition that “an animal that behaves in a manner that would not necessarily be considered dangerous or ferocious, but nevertheless reflects a proclivity to act in a way that puts others at risk of harm, can be found to have vicious propensities” (Bard, 6 NY3d at 597, quoting Collier v Zambito, 1 NY3d 444, 447 [2004]), giving rise to strict liability. The Court found, however, that the bull had regularly come into contact with other farm animals, farm workers and members of the farmer’s family “without incident or hint of hostility . . . [and] had never acted in a way that put others at risk of harm” (Bard, 6 NY3d at 597).

The Court of Appeals then turned to Bard’s alternative theory, sounding in negligence, that, because the bull was a breeding bull housed with a herd over which it exercised dominance, the farmer was negligent in failing to restrain the bull or warn newcomers of its presence. Bard had relied on two comments in Restatement (Second) of Torts § 518. The first, “Knowledge of normal characteristics,” provides that the keeper of a domestic animal is required to know the characteristics of that class of animal and to exercise suitable precautions. The second, “Animals dangerous under particular circumstances,” provides that the keeper is required to know that even ordinarily gentle animals are likely to be dangerous under particular circumstances, and to exercise reasonable care. Bulls are used as illustrations in both comments. (See Restatement [Second] of Torts § 518, Comments g, h.)

The Court of Appeals rejected Bard’s negligence theory, on the ground that Bard’s claim was tantamount to saying that the farmer should have known of the bull’s vicious propensities because breeding bulls are generally dangerous animals. The Court pointed out that we have never accepted such a theory of imputed knowledge of the vicious propensity of a particular breed or kind of animal (6 NY3d at 598-599). The Court then went on to state, unnecessarily, in my view, that “when harm is caused by a domestic animal, its owner’s liability is determined solely by application of the rule articulated in Collier [1 NY3d at 446-447]” (Bard, 6 NY3d at 599 [emphasis added]), i.e. the rule of strict liability for harm caused by a domestic animal when the owner knew, or should have known, of the animal’s vicious propensities.

In my view, and for the reasons stated in Judge R.S. Smith’s dissent in Bard (see 6 NY3d at 602-603), it was wrong to reject negligence altogether as a basis for the liability of an animal owner. “[N]egligence by an owner, even without knowledge concerning a domestic animal’s [vicious] propensity, may create liability” (Hyland v Cobb, 252 NY 325, 326-327 [1929], citing Dickson v McCoy, 39 NY 400 [1868]).

Nevertheless, because I believe that the majority of this Court in Bard intended to restrict liability for animal-induced injuries to circumstances where there is strict liability, I cannot accept the Appellate Division’s position that the present case is distinguishable from Bard as a leash law negligence case. Consequently, I vote to reverse and, although I would not have joined the majority’s opinion in Bard, I must, on constraint of that decision, concur in the majority’s opinion in the present case.

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

Order, insofar as appealed from, reversed, etc.

       Defendant disputes that the dog ever left the lawn. This opinion is written based entirely on plaintiffs recounting of the facts, as given primarily in her deposition testimony.