author: Rosenblatt, J.

text:
    [ 847 NE2d 1149, 814 NYS2d 575]
    The People of the State of New York, Appellant, v Stephen M. Pacer, Respondent.
    Argued February 16, 2006;
    decided March 28, 2006

      POINTS OF COUNSEL

      Richard A. Brown, District Attorney, Kew Gardens (Jennifer M. Hagan and John M. Castellano of counsel), and R. Michael Tantillo, District Attorney, Canandaigua, for appellant.
    I. The Appellate Division erred in holding that admission of the Vehicle and Traffic Law §214 affidavit, which merely described matters within the routine operation of a public agency, violated the Confrontation Clause. (Crawford v Washington, 541 US 36; Ohio v Roberts, 448 US 56; United States v Cervantes-Flores, 421 F3d 825; United States v Rueda-Rivera, 396 F3d 678; United States v Weiland, 420 F3d 1062; People v Durio, 7 Misc 3d 729;
      People v Rogers, 8 AD3d 888; Gaines v Relf, 12 How [53 US] 472; Owings v Speed, 5 Wheat [18 US] 420; Evanston v Gunn, 99 US 660.) II. The trial court properly declined to charge the lesser included offense of unlicensed operation of a motor vehicle because no reasonable view of the evidence supported the lesser offense but not the greater. (People v Glover, 57 NY2d 61; People v Scarborough, 49 NY2d 364; People v Mussenden, 308 NY 558; Sanchez v State of New York, 99 NY2d 247; People v Demperio, 86 NY2d 549; Matter of Northland Transp. v Jackson, 271 AD2d 846; People ex rel. Price v Sheffield Farms-SlawsonDecker Co., 225 NY 25; People v Kirksey, 186 Misc 2d 514.)

      John E. Tyo, Shortsville, for respondent. I.
    The Appellate Division, Fourth Department’s determination that the receipt of the affidavit of regularity/proof of mailing violated defendant’s right of confrontation correctly applies the rule enunciated in Crawford v Washington (541 US 36 [2004]). (Ohio v Roberts, 448 US 56; Pointer v Texas, 380 US 400; White v Illinois, 502 US 346; People v Capellan, 6 Misc 3d 809; People v Niene, 8 Misc 3d 649; People v Woods, 9 AD3d 293; People v Douglas, 4 NY3d 777; People v Ryan, 17 AD3d 1; People v Rogers, 8 AD3d 888; People v Crimmins, 36 NY2d 230.) II. The Appellate Division’s decision that it was error for the court to have refused to charge down to unlicensed operation as a lesser included offense of aggravated unlicensed operation is correct and should be upheld. (People v Gribben, 164 AD2d 944; People v Glover, 57 NY2d 61; People v Green, 56 NY2d 427.)

      Peter Lushing, New York City, and Richard D. Willstatter, White Plains, for New York State Association of Criminal Defense Lawyers and another, amici curiae.

      Crawford v Washington (541 US 36 [2004]) squarely bars official affidavits prepared specifically and solely for a given prosecution. (Sandstrom v Montana, 442 US 510; People v Gabriel, 164 Misc 2d 473; People v Kirksey, 186 Misc 2d 514; People v Pabon, 167 Misc 2d 214; United States v Saget, 377 F3d 223; Dutton v Evans, 400 US 74; United States v Cervantes-Flores, 421 F3d 825; United States v Weiland, 420 F3d 1062; People v Hernandez, 7 Misc 3d 568; United States v Oates, 560 F2d 45.)

      Eliot Spitzer, Attorney General, New York City (Daniel Smirlock and Robin A. Forshaw of counsel), amicus curiae.
    The Department of Motor Vehicles records admitted at defendant’s trial, as well as other official records reflecting routine operations of other governmental agencies, are not within the “core” class of testimonial statements to which Crawford v Washington (541 US 36 [2004]) applies. (United States v Cervantes-Flores, 421 F3d 825; People v Nisonoff 293 NY 597, 326 US 745; People v Reese, 258 NY 89; People v Sanders, 56 NY2d 51; United States v Rueda-Rivera, 396 F3d 678; United States v Weiland, 420 F3d 1062; People v Smith, 258 AD2d 245; People v Kollore, 151 Misc 2d 384; People v Shanis, 36 NY2d 697; People v Casey, 95 NY2d 354.)
   OPINION OF THE COURT

Rosenblatt, J.

The appeal before us presents a Confrontation Clause issue under Crawford v Washington (541 US 36 [2004]). Defendant was charged with aggravated unlicensed operation of a motor vehicle in the first degree (Vehicle and Traffic Law § 511 [3] [a]) and related offenses. At trial, to prove that defendant knew his driving privileges had been revoked and was thus guilty of an aggravated offense, the prosecution introduced an affidavit prepared by a Department of Motor Vehicles official in 2003 describing the agency’s revocation and mailing procedures, and averring that on information and belief they were satisfied. The Appellate Division correctly ruled that, under Crawford, the trial court should not have admitted the affidavit.

I.

In 1987, as a teenager lacking a driver’s license, defendant pleaded guilty in Wyoming County to driving under the influence of alcohol. He paid a fine and the Commissioner of Motor Vehicles revoked his “privilege of operating a motor vehicle in New York.” Shortly thereafter, defendant moved to Georgia, where he successfully obtained a driver’s license. On July 19, 2003, 16 years after the conviction, defendant drove in Ontario County, New York, after drinking heavily. He crashed his car, fled the scene and falsely told police that his car had been stolen. The revocation of his New York State driving privileges, however, remained in force.

The People charged defendant with aggravated unlicensed operation of a motor vehicle in the first degree (Vehicle and Traffic Law § 511 [3] [a]), two counts of operating a motor vehicle while under the influence of alcohol (Vehicle and Traffic Law § 1192 [2], [3]), falsely reporting an incident in the third degree (Penal Law § 240.50 [3]) and leaving the scene of an incident without reporting (Vehicle and Traffic Law § 600 [1] [a]). After a County Court trial in which defendant testified that he had not known his New York State driving privileges had been revoked, a jury found him guilty on all counts.

The Appellate Division modified the judgment, reversed the conviction for aggravated unlicensed operation, ordered a new trial on that count and sustained the remaining counts (21 AD3d 192 [2005]). The Court held that the affidavit introduced by the People to prove defendant’s knowledge that his license had been revoked violated his constitutional right to confront the witnesses against him. The Court also held that County Court erred by refusing to charge the lesser included offense of unlicensed operation of a motor vehicle (Vehicle and Traffic Law § 509 [1]). A Judge of this Court granted the People leave to appeal. We affirm.

II.

The felony offense of first-degree aggravated unlicensed operation has a mens rea element. To be convicted, a defendant must know or have reason to know that his driving privileges have been revoked, suspended or otherwise withdrawn by the Commissioner of Motor Vehicles. Defendants who drive without a license but who neither know nor have reason to know that their driving privileges have been terminated commit a violation (Vehicle and Traffic Law § 509 [1]).

Here, defendant testified he never learned that his New York State driving privileges had been revoked. The defense argued that his move to Georgia around the same time as the 1987 proceedings may have prevented notice from reaching him. As their sole proof that defendant knew or had reason to know his privileges were revoked, the People introduced an August 13, 2003 document titled “Affidavit of Regularity/Proof of Mailing” from a Department of Motor Vehicles official, purporting to explain the Department’s ordinary mailing procedures for revocation notices. The affidavit contained a statement, on the official’s “information and belief,” that the ordinary procedures described in the affidavit had been followed in defendant’s case.

Defendant did not object to admission of the underlying certificate of revocation. He did, however, object on Sixth Amendment grounds to the admission of the affidavit. County Court overruled the objection.

The People concede that the affidavit is a sworn document prepared by a government official specifically for use by the prosecution at trial. They further concede that defendant never had a chance to cross-examine the affiant and that the prosecution produced no evidence that the affiant was unavailable to testify. The People argue, however, that the affidavit was admissible as a business record or public record, and thus outside the scope of the Confrontation Clause.

We begin our analysis with the Supreme Court’s discussion of the Confrontation Clause in Crawford v Washington (541 US 36 [2004]). There, the Court held that “testimonial” statements not previously subjected to cross-examination are inadmissible against a criminal defendant. The Court did not fully spell out what is “testimonial,” but offered some guidance. It referred to “[v]arious formulations” of the “core class of ‘testimonial’ statements,” including:

‘ex parte in-court testimony or its functional equivalent that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,’ . . . ‘extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,’ [and] ‘statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’ ” (Crawford, 541 US at 51-52 [citations omitted].)

Although Crawford repeatedly describes affidavits as typically being testimonial, not all affidavits are inadmissible. The Crawford court concluded that business records would not have been considered testimonial at the time the Confrontation Clause was adopted (541 US at 56).

Claiming that the challenged affidavit is not “accusatory,” the People argue that the affidavit is more like an ordinary business record or public record than a testimonial statement. To make their point, they cite 18th-century English cases showing that hearsay from accusers—like hearsay from direct victims of crime or other witnesses—was barred under English common law. It does not follow, however, that the challenged affidavit is admissible as nonaccusatory hearsay.

For one thing, and contrary to the People’s suggestion, the government agent who swore out the affidavit is not a “neutral” officer. The official’s assertion of her “information and belief’ that the ordinary mailing procedures were carried out in defendant’s case is a direct accusation of an essential element of the crime, that defendant knew or should have known of the revocation. Moreover, because the People presented no other evidence to satisfy this element, the affiant is the closest the People come to having a “witness” to prove that defendant knew or should have known of the revocation.

The People also cite cases in which federal Courts of Appeals have held other types of affidavits not testimonial. These decisions, however, are distinguishable from the case before us.

In United States v Cervantes-Flores (421 F3d 825 [9th Cir 2005]), the Ninth Circuit ruled that an affidavit from an immigration officer certifying the absence of a record in the immigration agency’s files was admissible as nontestimonial under Crawford. The court reasoned that the record itself, if present, would have been admissible as one maintained in the ordinary course of agency business; its absence was similarly admissible. Here, in contrast, the challenged affidavit does not merely assert that the Department had a certificate showing that defendant’s license had been revoked. It goes well beyond that, and alleges that the agency took a specific action against defendant based on that revocation—namely, mailing the notice.

Similarly, in United States v Rueda-Rivera (396 F3d 678 [5th Cir 2005]), the Fifth Circuit held that a certificate of nonexistence of an immigration record was admissible as a nontestimonial business record, even though the certificate was sworn and created by a government agent for use at trial. In the case before us, however, the prosecution introduced the challenged affidavit to establish that the agency actually mailed out notice to defendant in 1987; it did not merely reveal the ongoing presence or absence of an agency record.

In United States v Cantellano (430 F3d 1142 [11th Cir 2005]), the Government sought to prove that the defendant had reentered the country after being deported. This required proof that he had actually left the country after the original deportation. An immigration enforcement agent submitted a “warrant of deportation” attesting that he saw Cantellano leave the United States. The court admitted the warrant without testimony from the agent. The 11th Circuit held the sworn declaration nontestimonial, and hence admissible under Crawford, because it was not prepared specifically for the prosecution, but rather was a contemporaneous document recorded as part of the routine duties of border agents who see deportees leave the country. Here, however, the challenged affidavit was admittedly prepared at the People’s request for use at trial.

United States v Bahena-Cardenas (411 F3d 1067, 1074 [9th Cir 2005]) also concerns a deportation warrant prepared at the time of deportation and admitted at the defendant’s later trial for reentry. Because it was prepared as part of the immigration agent’s routine duties and not in preparation for trial, the document differs from the affidavit before us.

Here, the affiant’s sworn statement—that she had information causing her to believe that the Department actually mailed notice of revocation to defendant—was crucial to the People’s case. Faced with evidence of this type, defendants have no means of challenging the People’s proof on a critical element. Without an opportunity to cross-examine the affiant, defendant had no chance to inquire about the basis for the affiant’s “information and belief’ that the Department mailed the notice. Defendant had no chance to inquire whether the Department sometimes makes mistakes in mailing revocation notices; whether there were other drivers in the Department’s database with the same name as defendant to whom the Department might have mailed the notice; to what address the affiant believed, based on her information, the Department had mailed the notice; whether the notice might have been returned undelivered; or whether the affiant could testify reliably about procedures as they existed 16 years earlier. In short, the lack of a live witness to confront eliminated defendant’s opportunity to contest a decisive piece of evidence against him. This is exactly the evil the Confrontation Clause was designed to prevent.

The Appellate Division further held that County Court erred by failing to charge unlicensed operation of a motor vehicle (Vehicle and Traffic Law § 509 [1]) as a lesser included offense of aggravated unlicensed operation. The People argue that the only reasonable view of the evidence is that defendant committed either the aggravated offense or nothing. We disagree. Defendant admitted on the stand that he had no New York State driver’s license when he committed the underlying acts in this case but contended that he did not know his New York State driving privileges had been revoked. On this point of credibility, a reasonable juror could have found that defendant drove without a license yet lacked knowledge or a reason to know that his New York license had been revoked. Therefore, the lesser charge should have been given to the jury when defendant requested it.

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

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Graffeo, Read and R.S. Smith concur.

Order affirmed.

      . Vehicle and Traffic Law § 511 (3) provides
      “(a) A person is guilty of the offense of aggravated unlicensed operation of a motor vehicle in the first degree when such person: (i) commits the offense of aggravated unlicensed operation of a motor vehicle in the second degree as provided in subparagraph (ii), (iii) or (iv) of paragraph (a) of subdivision two of this section and is operating a motor vehicle while under the influence of alcohol or a drug in violation of subdivision one, two, three, four or five of section eleven hundred ninety-two of this chapter . . . .”
      The first two referenced subparagraphs of section 511 (2) (a) refer to license revocations or suspensions due to alcohol-related driving offenses. The mens rea element derives from the basic definition of aggravated unlicensed operation found in section 511 (1) (a):

        “A person is guilty of the offense of aggravated unlicensed operation of a motor vehicle in the third degree when such person operates a motor vehicle upon a public highway while knowing or having reason to know that such person’s license or privilege of operating such motor vehicle in this state or privilege of obtaining a license to operate such motor vehicle issued by the commissioner is suspended, revoked or otherwise withdrawn by the commissioner.”

      . The affidavit was prepared under the statutory authorization in Vehicle and Traffic Law § 214, which provides:
      “The production of a copy of a notice or order issued by the department, together with an electronically-generated record of entry of such order or notice upon the appropriate driver’s license or registration file of the department and an affidavit by an employee designated by the commissioner as having responsibility for the issuance of such order or notice issued by the department setting forth the procedure for the issuance and the mailing of such notice or order shall be presumptive evidence that such notice of suspension, revocation or order was produced and mailed in accordance with such procedures. The foregoing procedure shall not preclude the use of an affidavit of service by mail, a certificate of mailing or proof of certified or registered mail as proof of mailing of any such order or notice.”

      . The Sixth Amendment guarantees criminal defendants the right to be “confronted with the witnesses against [them].” This right is binding on the states through the Federal Constitution’s Fourteenth Amendment (see Pointer v Texas, 380 US 400, 403 [1965]). Defendant here has neither preserved nor argued any claim based on our State Constitution.

      . The accusatory sentence avers “[t]hat upon information and belief, the orders referenced [pertaining to this defendant] were processed, distributed and/or mailed from this department in the manner and form described in the regular course of the New York State Department of Motor Vehicles’ daily business.” We note that the “manner and form” of mailing procedures described in the earlier sections of the affidavit are written in the present tense and that the affidavit was sworn to on August 13, 2003. The defense has not challenged the affidavit’s relevance to procedures as they were in 1987, when defendant’s revocation notice would have been mailed, and we presume for purposes of this appeal that the affidavit may be interpreted as implying that the procedures have not changed.

      . The People also argue that even if defendant lacked “knowledge” that his privileges had been revoked, he at least had “reason to know” of the revocation because it was an automatic consequence of his original 1987 conviction. The People presented no evidence of the specifics of that conviction and no record of the trial court’s explanation of the conviction’s direct consequences (if any). Indeed, the record lacks even an exact description of what statute defendant violated. On this record, we see nothing to support the People’s inference that defendant had “reason to know” of the license revocation.


source: Caselaw Access Project

author: Read, J.

license: Public Domain

text:
    [ 847 NE2d 1146, 814 NYS2d 572]
    In the Matter of Poughkeepsie Professional Firefighters’ Association, Local 596, IAFF, AFL-CIO-CLC, et al., Appellants, v New York State Public Employment Relations Board et al., Respondents.
    Argued February 8, 2006;
    decided March 28, 2006

      POINTS OF COUNSEL

      Gleason, Dunn, Walsh & O’Shea, Albany (Ronald G. Dunn of counsel), for appellants.
    I. Upon review, the Public Employment Relations Board’s determination is not entitled to deference. (Matter of Newark Val. Cent. School Dist. v Public Empl. Relations Bd., 83 NY2d 315; 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 Rosen v Public Empl. Relations Bd., 72 NY2d 42; Matter of Schenectady Police Benevolent Assn. v New York State Pub. Empl. Relations Bd., 85 NY2d 480.) II. The Poughkeepsie Professional Firefighters’ Association’s proposal calling for arbitration to review the municipalities’ initial General Municipal Law § 207-a determination is a mandatory subject of bargaining. (Matter of City of Watertown v State of N.Y. Pub. Empl. Relations Bd., 263 AD2d 797, 95 NY2d 73; 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 Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774; Matter of Schenectady Police Benevolent Assn. v New York State Pub. Empl. Relations Bd., 85 NY2d 480; Matter of Newark Val. Cent. School Dist. v Public Empl. Relations Bd., 83 NY2d 315; Matter of City of Cohoes [Uniform Firefighters of Cohoes, Local 2562, IAFF, AFL-CIO], 94 NY2d 686; Matter of Board of Educ. of Watertown City School Dist. [Watertown Educ. Assn.], 93 NY2d 132; Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.], 42 NY2d 509;
      Binghamton Civ. Serv. Forum v City of Binghamton, 44 NY2d 23.) III. The Public Employment Relations Board (PERB) decision was properly overturned as PERB is effectively legislating a standard of review in any negotiation of General Municipal Law § 207-a procedure in violation of General Municipal Law § 207-a and Matter of City of Watertown v State of N.Y. Pub. Empl. Relations Bd. (95 NY2d 73 [2000]). (Matter of Auburn Police Local 195, Council 82, Am. Fedn. of State, County & Mun. Empls., AFL-CIO v Helsby, 62 AD2d 12, 46 NY2d 1034; Local 589, Inti. Assn. of Fire Fighters, AFL-CIO v City of Newburgh, 116 AD2d 396.)

      Robert A. DePaula, Albany, for New York State Public Employment Relations Board, respondent.
    I. The scope of judicial review of the Public Employment Relations Board’s (PERB) negotiability determination is limited to whether PERB’s determination was legally permissible or whether it breached a constitutional right or protection. (Matter of Newark Val. Cent. School Dist. v Public Empl. Relations Bd., 83 NY2d 315.) II. The Appellate Division, Third Department did not err in affirming the Public Employment Relations Board’s decision that the Poughkeepsie Professional Firefighters’ Association’s proposed procedure sought to obtain a redetermination, thereby rendering the demands nonmandatory. (Matter of City of Watertown v State of N.Y. Pub. Empl. Relations Bd., 95 NY2d 73; Matter of Schenectady Police Benevolent Assn. v New York State Pub. Empl. Relations Bd., 85 NY2d 480; Matter of Brzostek v City of Syracuse, 238 AD2d 947, 92 NY2d 1026, 266 AD2d 836; Matter of Essex County v Zagata, 91 NY2d 447.) III. Neither the Public Employment Relations Board’s decision nor the decision of the Appellate Division, Third Department legislated a standard of review. (Greystone Mgt. Corp. v Conciliation & Appeals Bd. of City of N.Y., 94 AD2d 614, 62 NY2d 763; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222; Matter of Silverman [Benmor Coats], 61 NY2d 299.)

      Stephen J. Wing, Corporation Counsel, Poughkeepsie, for City of Poughkeepsie, respondent.
    I. This Court’s review is limited to whether the Public Employment Relations Board’s determination was legally permissible or whether it breached a constitutional right or protection. (Matter of West Irondequoit Teachers Assn, v Helsby, 35 NY2d 46; Matter of Incorporated Vil. of Lynbrook v New York State Pub. Empl. Relations Bd., 48 NY2d 398; Matter of Uniform Firefighters of Cohoes, Local 2562, IAFF,

      AFL-CIO v Cuevas, 276 AD2d 184, 96 NY2d 711; Matter of Newark Val. Cent. School Dist. v Public Empl. Relations Bd., 83 NY2d 315; Matter of Newark Val. Cardinal Bus Drivers, Local 4360, NYSUT, AFT, AFL-CIO v New York State Pub. Empl. Relations Bd., 303 AD2d 888, 100 NY2d 504; Matter of Town of Carmel Police Benevolent Assn, v Public Empl. Relations Bd. of State of N.Y., 267 AD2d 858.) II. The Appellate Division correctly decided that the specific language of appellant’s proposed General Municipal Law § 207-a procedure undermined respondent’s statutory right to make the initial determination. (Matter of City of Watertown v State of N.Y. Pub. Empl. Relations Bd., 95 NY2d 849; Matter of Cook v City of Utica, 88 NY2d 833; Matter of Schenectady Police Benevolent Assn, v New York State Pub. Empl. Relations Bd., 85 NY2d 480; Matter of DePoalo v County of Schenectady, 85 NY2d 527; Matter of City of Syracuse v Public Empl. Relations Bd., 279 AD2d 98.)

      Trevett, Lenweaver & Salzer, PC., Rochester (Lawrence J. Andolina and Daniel P. DeBolt of counsel), for New York State Deputies Association, amicus curiae.
    I. The Public Employment Relations Board’s decision is not entitled to deference. (Matter of Webster Cent. School Dist. v Public Empl. Relations Bd. of State of N.Y., 75 NY2d 619; Matter of Schenectady Police Benevolent Assn. v New York State Pub. Empl. Relations Bd., 85 NY2d 480; Matter of Town of Carmel v Public Empl. Relations Bd. of State of N.Y., 246 AD2d 791; Matter of City of Watertown v State of N.Y. Pub. Empl. Relations Bd., 95 NY2d 73; Matter of White v County of Cortland, 283 AD2d 826.) II. The decision below is inimical to the purpose of the Taylor Law and General Municipal Law §§ 207-a and 207-c. (Matter of City of Watertown v State of N.Y. Pub. Empl. Relations Bd., 95 NY2d 73; 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 Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774; Matter of Schenectady Police Benevolent Assn. v New York State Pub. Empl. Relations Bd., 85 NY2d 480; 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; Board of Educ. of City School Dist. of City of Buffalo v Pisa, 55 AD2d 128; Pattern Makers v NLRB, 473 US 95; NLRB v Allis-Chalmers Mfg. Co., 388 US 175; Matter of Webster Cent. School Dist. v Public Empl. Relations Bd. of State of N.Y., 75 NY2d 619; Matter of City of Syracuse v Public Empl. Relations Bd., 279 AD2d 98.) III. The Third Department’s decision is inconsistent with Matter of City of Watertown v State of N.Y. Pub. Empl. Relations Bd. (95 NY2d 73 [2000]). (Matter

      of Schenectady Police Benevolent Assn. v New York State Pub. Empl. Relations Bd., 85 NY2d 480; Matter of Sutherland v Glennon, 221 AD2d 893; United States v Vasquez, 389 F3d 65; United States v Kostakis, 364 F3d 45.) IV The arbitration system proposed by the Poughkeepsie Professional Firefighters’ Association does not take away from the City of Poughkeepsie’s right to make initial determinations. (Matter of County of Westchester v Westchester County Correction Officers Benevolent Assn., 278 AD2d 414; Matter of City of Watertown v State of N.Y. Pub. Empl. Relations Bd., 95 NY2d 73; Matter of Jamie R. v Consilvio, 17 AD3d 52; Gulf Ins. Co. v Transatlantic Reins. Co., 13 AD3d 278; Matter of Dranov, 14 AD3d 156; Doe v HMO-CNY, 14 AD3d 102; Matter of Sherwin-Williams Co. v Tax Appeals Trib. of Dept. of Taxation & Fin. of State of N.Y., 12 AD3d 112.) V Practical and equitable considerations favor mandatory negotiations regarding review of the City of Poughkeepsie’s initial General Municipal Law § 207-a determinations.

      Donna M.C. Giliberto, Albany, for New York State Conference of Mayors and Municipal Officials, amicus curiae.
    I. The Public Employment Relations Board was acting within the scope of its authority in deciding that the bargaining demand at issue in this litigation was not a mandatory subject of negotiation. Therefore, the Court should defer to the agency’s determination. (Matter of Incorporated Vil. of Lynbrook v New York State Pub. Empl. Relations Bd., 48 NY2d 398; Matter of West Irondequoit Teachers Assn. v Helsby, 35 NY2d 46.) II. The decision under review in this litigation is rational, not tainted by error, and not an abuse of discretion. (Board of Educ. of Union Free School Dist. No. 3 of Town of Huntington v Associated Teachers of Huntington, 30 NY2d 122; County of Sullivan v Edward L. Nezelek, Inc., 42 NY2d 123; Matter of Schlaifer v Sedlow, 51 NY2d 181; Matter of State Farm Ins. Co. v Smith, 277 AD2d 390; Matter of Anagnostopoulos v Union Turnpike Mgt. Corp., 300 AD2d 393.) III. The Public Employment Relations Board is not abandoning arbitration as a means of resolving contractual disputes. (Matter of Board of Educ. of Watertown City School Dist. [Watertown Educ. Assn.], 93 NY2d 132; Matter of Auburn Police Local 195, Council 82, Am. Fedn. of State, County & Mun. Empls., AFL-CIO v Helsby, 46 NY2d 1034; Matter of City of Mount Vernon v Cuevas, 289 AD2d 674; Matter of Rockland County Patrolmen’s Benevolent Assn. v Town of Clarkstown, 149 AD2d 516; Matter of Nieves v Haera, 165 AD2d 201; Matter of City of New York v MacDonald, 201 AD2d 258, 83 NY2d 759; Matter of Town of Greenburgh [Police Assn. of Town of Green

      burgh], 94 AD2d 771, 60 NY2d 551; Matter of Patrolmen’s Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 13 AD3d 879.)

      Hinman Straub PC., Albany (John F. Black and David W. Novak of counsel), for New York State Professional Fire Fighters Association, I.A.F.F., AFL-CIO, amicus curiae.
    The Appellate Division’s reasoning is contrary to this Court’s decision in Matter of City of Watertown v State of N.Y. Pub. Empl. Relations Bd. (95 NY2d 73 [2000]) and would unnecessarily and detrimentally affect existing interest awards and future collective bargaining with respect to firefighter locals. (Matter of Schenectady Police Benevolent Assn. v New York State Pub. Empl. Relations Bd., 85 NY2d 480.)

      Coughlin & Gerhart, L.L.P., Binghamton (Mary Louise Con-row and Jeffrey Husisian of counsel), for Hartsdale Fire District and others, amici curiae.
    I. The Appellate Division, Third Department was correct when it held that a demand allowing for a redetermination or “de novo” review of a municipal decision pursuant to General Municipal Law § 207-a was not a mandatory subject of bargaining. (Matter of City of Watertown v State of N.Y. Pub. Empl. Relations Bd., 95 NY2d 73; Matter of Schenectady Police Benevolent Assn. v New York State Pub. Empl. Relations Bd., 85 NY2d 480; Matter of DePoalo v County of Schenectady, 85 NY2d 527; Matter of Theroux v Reilly, 1 NY3d 232; Matter of City of Schenectady v New York State Pub. Empl. Relations Bd., 132 AD2d 242; Matter of Poster v Strough, 299 AD2d 127; Matter of Mandle v Brown, 5 NY2d 51; Matter of Newbrand v City of Yonkers, 285 NY 164.) II. Allowing the Poughkeepsie Professional Firefighters’ Association’s demand to be a subject of mandatory bargaining may result in elimination of a municipality’s management rights. (Matter of Cassidy v Municipal Civ. Serv. Commn. of City of New Rochelle, 37 NY2d 526; Matter of Faliveno v City of Gloversville, 228 AD2d 19; Matter of Silverman [Benmor Coats], 61 NY2d 299; Lentine v Fundaro, 29 NY2d 382; Matter of Town of Haverstraw [Rockland County Patrolmen’s Benevolent Assn.], 65 NY2d 677; Matter of Goldfinger v Lisker, 68 NY2d 225; Matter of Sprinzen [Nomberg], 46 NY2d 623; Matter of Professional, Clerical, Tech. Empls. Assn. [Buffalo Bd. of Educ.], 90 NY2d 364; Matter of Peckerman v D & D Assoc., 165 AD2d 289; Matter of Matra Bldg. Corp. v Kucker, 2 AD3d 732.) III. Allowing binding arbitration for other statutory proceedings is not dispositive of whether or not General Municipal Law § 207-a benefits should be subject to binding arbitration.
   OPINION OF THE COURT

Read, J.

Section 207-a of the General Municipal Law mandates payment of the full amount of regular salary or wages to a paid firefighter “who is injured in the performance of his duties” or taken ill “as a result of the performance of his duties so as to necessitate medical or other lawful remedial treatment” (General Municipal Law § 207-a [1]). These payments continue until the disability ceases, or the disabled firefighter is granted a disability retirement. Payments stop if the firefighter either performs, or refuses to perform, light-duty work. The municipality is also liable for all medical treatment and hospital care necessitated by the illness or injury.

In their 1995-1998 collective bargaining agreement, the City of Poughkeepsie and the Poughkeepsie Professional Firefighters’ Association agreed to negotiate a procedure to implement section 207-a for the City’s firefighters. After negotiations proved fruitless, the Association concluded that impasse had been reached and petitioned the New York State Public Employment Relations Board (PERB or the Board) for compulsory interest arbitration. The City responded by filing an improper practice charge, alleging that the Association had violated Public Employees’ Fair Employment Act (Civil Service Law) § 209-a (2) (b), the Taylor Law. Specifically, the Association’s demands included proposals for de novo arbitral review to resolve disputes over a firefighter’s initial and continuing eligibility for General Municipal Law § 207-a benefits. The City insisted that these proposals were not mandatory subjects of bargaining.

PERB agreed. The Board viewed the Association’s proposals for de novo review as infringing upon the City’s exclusive statutory authority to make initial eligibility and termination decisions (see Matter of City of Poughkeepsie [Poughkeepsie Professional Firefighters’ Assn., Local 596, I.A.F.F., AFL-CIO-CLC], 33 PERB ¶ 3029 [2000]). The Association had “misinterpreted the import” (id. at 3078) oí Matter of City of Watertown (Water-town Police Benevolent Assn.) (30 PERB ¶ 3072 [1997]), where PERB decided that a demand for arbitration of disputes involving eligibility for the benefits conferred by General Municipal Law § 207-c—section 207-a’s counterpart for police officers— was a mandatory subject of negotiation. In Watertown, the union “merely requested” that any dispute over the City’s initial determination “be processed to arbitration pursuant to PERB’s Voluntary Dispute Resolution Procedure. There was no reference in the demand, either express or implied, that there would be a de novo review of the City’s initial determination” (33 PERB 1Í 3029, at 3079). Accordingly, the demand in Watertown was for “a substitute appeal procedure in order to avoid commencing an Article 78 proceeding,” and was found on this basis to be a mandatory subject of negotiations (id.).

After PERB’s decision in Poughkeepsie, the Association reworked its proposal and the parties resumed collective bargaining. This time around, the Association omitted “de novo” from the text of its proposed section 207-a procedures, which called for an arbitrator to review a firefighter’s eligibility for benefits, the termination of benefits and assignment to light duty. The proposal also recited that the City would have “exclusive authority to initially determine the applicant’s eligibility.”

Again, the parties were unable to negotiate an agreement, the Association petitioned PERB for compulsory interest arbitration and the City filed an improper practice charge in response. The City claimed that the modifications made by the Association to its previous demands were “cosmetic” only, and that its proposal still called for an arbitrator to make a decision on the merits of section 207-a claims. As a result, the demands “effectively wrest[ed] from the City the authority vested in it by GML § 207-a to make the initial determination,” and were non-mandatory subjects of collective bargaining.

Once again, PERB sided with the City. PERB concluded that the Association’s demands sought “review not of the City’s determinations of eligibility, termination of benefits and light duty but of the employees’ underlying claims,” and therefore “infringe[d] upon authority vested exclusively within municipalities by the statute” (Matter of City of Poughkeepsie [Poughkeepsie Professional Firefighters’ Assn., Local 596,1.A.F.F., AFL-CIO, CLC], 36 PERB ¶ 3014, at 3042 [2003]). Accordingly, the Association’s demands were nonmandatory subjects of negotiation, and its submission of them to interest arbitration was an improper practice in violation of section 209-a (2) (b) of the Taylor Law.

The Association commenced this CPLR article 78 proceeding, seeking annulment of PERB’s determination. Supreme Court granted the Association’s petition in its entirety. The Appellate Division subsequently reversed Supreme Court’s judgment on the law, and dismissed the petition. We now affirm.

General Municipal Law § 207-a authorizes municipalities to make initial determinations about a firefighter’s eligibility for benefits, and this authority is not a mandatory subject of collective bargaining (see Matter of Schenectady Police Benevolent Assn. v New York State Pub. Empl. Relations Bd., 85 NY2d 480 [1995]). A demand for a review procedure to contest a municipality’s initial determination is, however, mandatorily negotiable (see Matter of City of Watertown v State of N.Y. Pub. Empl. Relations Bd., 95 NY2d 73 [2000]). After examining the language in the Association’s proposal in light of these related, established principles, PERB concluded that the disputed demands afforded a firefighter de novo review—in effect, a fresh determination of the claim by an arbitrator—rather than arbitral review of the City’s initial determination, using a procedure and standard of review tailored by the parties.

This appeal presents no question of statutory interpretation. Instead, the issue is whether PERB decided the City’s improper practice charge based upon a reasonable reading of the Association’s proposed contract language. PERB, as the agency charged with interpreting the Civil Service Law, is accorded deference in matters falling within its area of expertise, including the resolution of improper practice charges (see Matter of County of Nassau [Nassau Community Coll.] v New York State Pub. Empl. Relations Bd., 76 NY2d 579, 585 [1990]). Because these matters are consigned to PERB’s discretion, we may not disturb its determination unless irrational (City of Watertown, 95 NY2d at 81).

Here, the proposed language calls for the arbitrator to resolve the firefighter’s claim, not review the City’s initial determination, and to decide all allegations and defenses, including assertions regarding timeliness; contemplates trial-type evidentiary hearings with witnesses; and even assigns burdens of proof according to the type of determination at issue. We therefore find no irrationality in PERB’s conclusion that the disputed demands set forth not a review procedure, but a redetermination procedure in derogation of the City’s nondelegable statutory right to make initial determinations.

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

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo and R.S. Smith concur.

Order affirmed, with costs.


author: G.B. Smith, J.

text:
    [ 847 NE2d 1158, 814 NYS2d 584]
    The People of the State of New York, Respondent, v Najib Bosier, Appellant.
    Argued February 15, 2006;
    decided April 4, 2006

      POINTS OF COUNSEL

      Bahn, Herzfeld & Multer, LLP, New York City (Richard L. Herzfeld of counsel), for appellant.
    I. By allowing the prosecution to selectively introduce the complainant’s grand jury testimony and by denying the defense request to introduce the grand jury testimony which the prosecution elected not to introduce, the court deprived appellant of his due process right to a fair trial and his right to present a defense. (People v Sime, 254 AD2d 183; People v Geraci, 85 NY2d 359; People v Cotto, 92 NY2d 68; People v Arroyo, 54 NY2d 567; People v Robinson, 89 NY2d 648; Cotto v Herbert, 331 F3d 217.) II. The lineup identification of appellant by Winston was tainted by the police comments and appellant’s distinctive appearance; the court erred in finding an independent basis where the description of the perpetrator was minimal and often inconsistent with appellant’s appearance, Winston had never seen the perpetrator before and, initially, Winston could not even identify appellant as the perpetrator at the Wade hearing. (People v Ortiz, 90 NY2d 533; People v Moore, 143 AD2d 1056; People v Carolina, 184 AD2d 520; People v Gaddy, 115 AD2d 658; People v Sapp, 98 AD2d 784; People v Harris, 172 AD2d 560, 80 NY2d 796; People v Elliot, 283 AD2d 183.) III. The court’s Sandoval ruling which permitted the prosecution to question appellant as to most of his prior convictions without any effort to balance the potential prejudice was an abuse of discretion as a matter of law. (People v Briggs, 166 AD2d 210; People v Mitchell, 209 AD2d 443.)

      Charles J. Hynes, District Attorney, Brooklyn (Jane S. Meyers, Leonard Joblove and Karol B. Mangum of counsel), for respondent.
    I. Defendant has partially failed to preserve for appellate review his challenge to the tried court’s ruling that, where the grand jury testimony of the victim was admitted as evidence-in-chief because defendant’s threats had caused the victim to be unavailable to testify, defendant could not enter into evidence, for impeachment purposes, either the victim’s testimony at a separate grand jury proceeding or evidence about the victim’s own criminal conduct. Moreover, the trial court’s ruling was proper. (People v Geraci, 85 NY2d 359; People v Angelo, 88 NY2d 217; People v Gonzalez, 54 NY2d 729; People v Qualls, 55 NY2d 733; People v Jackson, 76 NY2d 908; Pointer v Texas, 380 US 400; Davis v Alaska, 415 US 308; Lee v Illinois, 476 US 530; California v Green, 399 US 149; Perry v Leeke, 488 US 272.) II. Defendant’s claims that the hearing court erred in finding that defendant’s lineup was not suggestive and that Winston had an independent basis for an in-court identification of defendant are beyond the scope of review of this Court and are entirely meritless. (People v Robinson, 88 NY2d 1001; People v Jackson, 76 NY2d 908; People v Tutt, 38 NY2d 1011; People v Jackson, 98 NY2d 555; People v Evans, 94 NY2d 499; People v Owens, 74 NY2d 677; People v Malloy, 55 NY2d 296; People v Chipp, 75 NY2d 327, 498 US 833; Neil v Biggers, 409 US 188; Foster v California, 394 US 440.) III. The trial court’s Sandoval ruling is beyond the scope of this Court’s review. The Appellate Division properly determined that the trial court’s Sandoval ruling was not an abuse of discretion. (People v Walker, 83 NY2d 455; People v Pollock, 50 NY2d 547; People v Hayes, 97 NY2d 203; People v Sandoval, 34 NY2d 371; People v Shields, 46 NY2d 764; People v Williams, 56 NY2d 236; People v Pavao, 59 NY2d 282.)
   OPINION OF THE COURT

G.B. Smith, J.

Defendant was convicted of assault in the second degree and criminal possession of a weapon in the second degree. He challenges those convictions primarily on the ground that Supreme Court’s rulings after a Sirois hearing, allowing the People to introduce selective portions of the complaining witness’s grand jury testimony but denying defendant’s request to introduce additional grand jury testimony of that witness, deprived defendant of his constitutional rights to a fair trial and to present a defense. Supreme Court committed no error in making these rulings, and we affirm the Appellate Division order upholding the conviction.

I

On the evening of May 23, 2000, defendant, using a gun handed to him by his codefendant, shot complainant twice, wounding him. Two days after the shooting, defendant was arrested. Within a week of defendant’s arrest, complainant testified before a Kings County grand jury that was considering charges against defendant. After complainant’s testimony, defendant was indicted. On February 8, 2001, defendant’s codefendant was arrested. Three weeks later, complainant testified before a grand jury that was considering charges against codefendant. After complainant’s testimony, codefendant was separately indicted. The two indictments were consolidated for trial.

Prior to the joint trial, the People learned that complainant was not going to testify. The People moved for a Sirois hearing to determine whether defendant engaged in witness tampering by committing misconduct that caused complainant to fear for his safety and/or life if he testified at trial. At the hearing, the People presented evidence showing that defendant had conveyed numerous threats to complainant through complainant’s family and friends. Defendant, in an effort to stop complainant from testifying, had attempted to enlist others to kill complainant, and defendant’s brother and codefendant had conveyed a threat to complainant through complainant’s grandmother. After considering this evidence and defendant’s testimony, Supreme Court ruled that the People had established, by clear and convincing evidence, that defendant and codefendant had engaged in unlawful conduct that rendered complainant unavailable to testify at their joint trial.

After the hearing, Supreme Court granted the People’s request to introduce, as evidence-in-chief, complainant’s testimony before the second grand jury. Defendant argued that complainant’s testimony from the second grand jury proceeding was inconsistent with the testimony he gave at the first proceeding. Therefore, defendant sought to introduce complainant’s testimony from the first grand jury proceeding for the purpose of impeaching complainant’s testimony from the second proceeding. The inconsistency cited in support of defendant’s application was that in the first grand jury, complainant testified that he had seen defendant several times with codefendant, whereas in the second proceeding, complainant testified that he had never before seen defendant. Defendant further argued that, because the inconsistency in complainant’s testimony might amount to perjury, it would be unfair to allow the People to select the portions of complainant’s grand jury testimony to introduce into evidence. Supreme Court denied the application.

Defendant was convicted of assault in the second degree and criminal possession of a weapon in the second degree. He was sentenced, as a persistent felony offender, to concurrent indeterminate terms of 20 years to life in prison. The Appellate Division affirmed, relying on People v Geraci (85 NY2d 359 [1995]). A Judge of this Court granted defendant leave to appeal and we now affirm.

II

Defendant neither challenges Supreme Court’s finding that he procured the complainant’s unavailability as a trial witness through threats, nor disputes Supreme Court’s ruling that complainant’s testimony from the second grand jury was admissible under Geraci. Defendant does, however, argue that by allowing the People to selectively introduce complainant’s testimony from the second grand jury while denying defendant’s request to introduce complainant’s testimony from the first grand jury, Supreme Court deprived him of his constitutional rights to a fair trial and to present a defense (see US Const Amends VI, Xiy § 1; Pointer v Texas, 380 US 400, 406 [1965]; NY Const, art I, § 6).

Defendant’s constitutional claims, as well as the other claims regarding Supreme Court’s denial of defendant’s application to introduce impeachment evidence from the first grand jury, are without merit under the “forfeiture by misconduct” principles set forth in People v Geraci (85 NY2d 359 [1995]).

In Geraci, we recognized two exceptions to the rule that grand jury testimony is generally inadmissible as evidence-in-chief at trial. Specifically, we held that out-of-court hearsay statements, including grand jury testimony, of a witness unavailable to testify at trial may be admitted as direct evidence against a defendant who has procured the defendant’s unavailability through his or her misconduct. We also held that such a defendant forfeits the constitutional right of confrontation regarding the substance of those statements, and the right to assert rules against the admission of hearsay statements (see People v Geraci, 85 NY2d at 366-367).

These exceptions both protect the integrity of the adversary process by deterring a criminal defendant from engaging in conduct that prevents a witness from offering testimony at trial and ensure that a defendant who engages in the type of misconduct that renders a witness unavailable for trial does not benefit from his or her wrongful conduct. In other words, these exceptions are justified “by the public policy of reducing the incentive to tamper with witnesses” (id. at 368).

Of course, as we recognized in People v Cotto (92 NY2d 68 [1998]), even a defendant who has tampered with a witness is entitled to a fair trial. For that reason, we do not hold that such a defendant should never be able to introduce the unavailable witness’s out-of-court statements for impeachment purposes. The trial judge has discretion to permit such impeachment where there is a possibility that, if it is not allowed, the jury will be misled into giving too much weight to the statement offered by the prosecution. But such impeachment need not always be allowed. Where impeachment is permitted, the defendant, in direct contravention of the most basic legal principles and the policy objectives of Geraci, may benefit from his or her own wrongful conduct because the prosecution will have no opportunity to rehabilitate the witness by clarifying any unclear or inconsistent testimony proffered by the defendant. Here, where the inconsistency defendant relied on did not go to the heart of the prosecution’s case and might well have been credibly explained if the witness had been present, it was not an abuse of discretion to exclude the impeaching evidence.

Ill

The cases that defendant relies on do not dictate a different result. People v Arroyo (54 NY2d 567 [1982]) and People v Robinson (89 NY2d 648 [1997]) involved the application of CPL 670.10 (1), which authorizes the admission of former testimony in certain circumstances not applicable here. In People v Arroyo, the preliminary hearing testimony of a missing victim was permitted as evidence at a trial. In Robinson, decided two years after Geraci, this Court, in the face of defendant’s claim of a violation of due process, allowed the admission of grand jury testimony by defendant’s estranged wife supporting his assertion that he had not sexually abused another woman. In this case, the People introduced the entirety of complainant’s June 2000 grand jury testimony. Defendant seeks to impeach that testimony by use of statements made on a separate occasion before another grand jury.

Similarly, People v Cotto and Cotto v Herbert (331 F3d 217 [2d Cir 2003]) are inapposite. Here, complainant never testified at trial. The witness in Cotto did. In Cotto, the People’s sole witness, who had identified defendant as the assailant to police a few days prior to defendant’s trial, took the stand at trial and testified that he did not know the identity of the assailant. After a mid-trial Sirois hearing, the trial court found that defendant had engaged in misconduct that led the witness to refuse to identify defendant on the stand. Defendant was not permitted to cross-examine the witness at all. The People were allowed to introduce the witness’s former statement identifying defendant. Defendant sought to introduce conflicting prior statements in which the witness stated that he did not know the identity of the assailant. Defendant’s application was denied and he was convicted. Defendant appealed to this Court.

In People v Cotto, we held that defendant’s claim regarding the scope of permissible cross-examination of a witness who testifies at trial, but does not identify the defendant out of fear for his safety, was unpreserved for appellate review. We also upheld the lower court’s ruling that defendant threatened the witness, and, thus, forfeited his constitutional right of confrontation and his right to object to the admission of hearsay evidence.

Defendant applied for a federal writ of habeas corpus. In Cotto v Herbert, the Second Circuit granted defendant’s application, finding that because the witness was “literally available,” the ruling completely precluding defendant’s right to cross-examine the witness was improper. By contrast, where the witness is unavailable, a ruling completely precluding defendant’s right of cross-examination is proper. In any event, the Second Circuit ruled that defendant should have been able to cross-examine the witness regarding bias and motive to he.

Based on the foregoing, Arroyo, Robinson and the Cotto decisions are clearly distinguishable from and inapplicable to the case at bar. Moreover, Cotto v Herbert actually supports the rulings made by Supreme Court, not defendant.

IV

Defendant’s actions and the relief defendant sought do not comport with Geraci. Defendant has not cited any case or statutory law that would support his request to introduce any portion of complainant’s grand jury testimony. Moreover, defendant has not met the foundational requirements for the introduction of former grand jury testimony at trial.

We have considered defendant’s remaining contentions—that the court erred in ruling that a witness could make a courtroom identification of the defendant and erred in ruling on defendant’s Sandoval claim allowing the prosecutor to question defendant about prior bad acts—and conclude that they are without merit.

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

Chief Judge Kaye and Judges Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur.

Order affirmed.

        Matter of Holtzman v Hellenbrand, 92 AD2d 405, 415 (2d Dept 1983); People v Sirois, 92 AD2d 618 (2d Dept 1983).


text:
    [ 847 NE2d 1154, 814 NYS2d 580]
    Tymeik Williams, an Infant, by His Mother and Natural Guardian, Lekesha Fowler, Appellant, v Nassau County Medical Center et al., Respondents.
    Argued February 7, 2006;
    decided April 4, 2006

      POINTS OF COUNSEL

      Fitzgerald & Fitzgerald, P.C., Yonkers (John M. Daly, John E. Fitzgerald, Eugene S.R. Pagano, Mitchell L. Gittin and Christopher J. Lennon of counsel), for appellant.
    I. An infant claimant does not have to show a nexus between infancy and the delay in moving for leave to serve a late notice of claim. (Matter of Beary v City of Rye, 44 NY2d 398; Giblin v Nassau County Med. Ctr., 61 NY2d 67; Matter of Murray v City of New York, 30 NY2d 113; Sherman v Metropolitan Tr. Auth., 36 NY2d 776; Matter of Ziecker v Town of Orchard Park, 70 AD2d 422, 51 NY2d 957; Matter of Kurz v New York City Health & Hosps. Corp., 174 AD2d 671;
      Matter of Lannon v Town of Henrietta, 109 AD2d 1067; Cohen v Pearl Riv. Union Free School Dist., 51 NY2d 256; Matter of Matarrese v New York City Health & Hosps. Corp., 215 AD2d 7, 87 NY2d 810; Ali v Bunny Realty Corp., 253 AD2d 356.) II. The hospital’s records, which recorded the acts and omissions constituting medical malpractice, gave actual notice of the essential facts constituting plaintiffs claim. (Matter of Beary v City of Rye, 44 NY2d 398; Ansaldo v City of New York, 92 AD2d 557; Kavanaugh v Memorial Hosp. & Nursing Home of Greene County, 126 AD2d 930; Matter of Quiroz v City of New York, 154 AD2d 315; Matter of Sica v Board of Educ. of City of N.Y., 226 AD2d 542; Matter of Shapiro v County of Nassau, 208 AD2d 545; Moore v New York City Tr. Auth., 189 AD2d 862; Thomann v City of Rochester, 256 NY 165; Matter of Hubbard v City School Dist. of Glen Cove, 204 AD2d 721.) III. The Appellate Division improperly required claimant to disprove the County of Nassau’s unsubstantiated assertion of prejudice. (Matter of Matarrese v New York City Health & Hosps. Corp., 215 AD2d 7; Matter of Louis Harris & Assoc. v de-Leon, 84 NY2d 698; Romanian Am. Interests v Scher, 94 AD2d 549; Noseworthy v City of New York, 298 NY 76; Shabazz v Sheltering Arms Children’s Serv., 216 AD2d 230; Medley v Cichon, 305 AD2d 643; Matter of McLaughlin v County of Albany, 258 AD2d 778; Matter of Diaz Chem. Corp. v New York State Div. of Human Rights, 91 NY2d 932; Love v Spector, 215 AD2d 733; Macon v Arnlie Realty Co., 207 AD2d 268.) IV The Appellate Division exercised its discretion based upon errors of law which are reviewable by this Court; the Appellate Division also abused its discretion as a matter of law. (Harvey v Mazal Am. Partners, 79 NY2d 218; Varkonyi v S.A. Empresa De Viacao Airea Rio Grandense [Varig], 22 NY2d 333; Matter of Greatsinger, 67 NY2d 177; H & J Blits v Blits, 65 NY2d 1014; Fahey v County of Ontario, 44 NY2d 934.) V The Appellate Division’s order is final for purposes of appeal-ability. (Spodek v Park Prop. Dev. Assoc., 96 NY2d 577; Matter of Colonial Liq. Distribs. v O’Connell, 295 NY 129; Matter of Lewin v County of Suffolk, 239 AD2d 345; Matter of Lannon v Town of Henrietta, 87 AD2d 980; Matter of Daniel J. v New York City Health & Hosps. Corp., 77 NY2d 630; Matter of Persi v Churchville-Chili Cent. School Dist., 52 NY2d 988; Washington v City of New York, 72 NY2d 881; Zarrello v City of New York, 61 NY2d 628; Barnes v County of Onondaga, 65 NY2d 664; Silbernagel v City of New York, 57 NY2d 691.)

      Lorna B. Goodman, County Attorney, Mineola (David B. Goldin and Karen Hutson of counsel), for respondents.
    I. In considering whether to grant leave to serve a late notice of claim, a court must consider all of the relevant facts and circumstances, including whether the claimant’s infancy excuses the failure to file a timely notice. (Giblin v Nassau County Med. Ctr., 61 NY2d 67; Cohen v Pearl Riv. Union Free School Dist., 51 NY2d 256; Matter of Wilson v City of Binghamton, 248 AD2d 780; Hilton v Town of Richland, 216 AD2d 921; Rodriguez v New York City Bd. of Educ., 190 AD2d 579, 81 NY2d 1041; Matter of Sanna v Bethpage Pub. Schools Union Free School Dist. 21, 193 AD2d 606; Matter of Andrew T.B. v Brewster Cent. School Dist., 18 AD3d 745; Matter of Matarrese v New York City Health & Hosps. Corp., 215 AD2d 7, 87 NY2d 810; Matter of Gandia v New York City Hous. Auth., 173 AD2d 824; Matter of Kurz v New York City Health & Hosps. Corp., 174 AD2d 671.) II. Mere possession of medical records does not necessarily show actual knowledge of the essential facts constituting a claim based on the course of treatment described therein. (Mills v County of Monroe, 59 NY2d 307, 464 US 1018; Sandak v Tuxedo Union School Dist. No. 3, 308 NY 226; Matter of Aviles v New York City Health & Hosps. Corp., 172 AD2d 237; Bullard v City of New York, 118 AD2d 447; Seymour v New York City Health & Hosps. Corp. [Kings County Hosp. Ctr.], 21 AD3d 1025; Ocasio v New York City Health & Hosps. Corp. [Morrisania Neighborhood Family Care Ctr.], 14 AD3d 361; Matter of Cotten v County of Nassau, 307 AD2d 965, 1 NY3d 502; Moise v County of Nassau, 234 AD2d 275, 89 NY2d 811; Matter of Caruso v County of Westchester, 220 AD2d 746; Matter of D'Anjou v New York City Health & Hosps. Corp., 196 AD2d 818, 83 NY2d 796.) III. The Appellate Division properly found that plaintiff had failed to establish that the County of Nassau would not be prejudiced by granting leave to serve a late notice of claim. (Medley v Cichon, 305 AD2d 643; Matter ofMicali v Union Free Val. Stream School Dist. #24, 300 AD2d 661; Harris v City of New York, 297 AD2d 473, 99 NY2d 503; Matter of Turner v Town of Oyster Bay, 268 AD2d 526; Matter of Perrault v New York City Tr. Auth., 234 AD2d 464; Walker v New York City Tr. Auth., 266 AD2d 54; Texas Dept, of Community Affairs v Burdine, 450 US 248; Matter of McHugh v City of New York, 293 AD2d 478; Matter of National Sur. Corp. v Town of Greenburgh, 266 AD2d 550; Matter of Bollerman v New York City School Constr. Auth., 247 AD2d 469.)

      Michael A. Cardozo, Corporation Counsel, New York City (Kristin M. Helmers and Janet L. Zaleon of counsel), for New York City Health and Hospitals Corporation, amicus curiae.
    The Appellate Division correctly determined, on the law and in its discretion, that plaintiff should not be granted leave to serve a late notice of claim upon defendant public hospital system. (Cohen v Pearl Riv. Union Free School Dist., 51 NY2d 256; Abbot v City of New York, 271 AD2d 364; Matter of Daniel J. v New York City Health & Hosps. Corp., 77 NY2d 630; Breeden v Valentino, 19 AD3d 527; Woods v Geneva Hous. Auth., 210 AD2d 991; Matter of Harwood v County of Albany, 257 AD2d 747; Ali v Bunny Realty Corp., 253 AD2d 356; Ocasio v New York City Health & Hosps. Corp. [Morrisania Neighborhood Family Care Ctr.], 14 AD3d 361; Matter of Greene v City of Middletown, 5 AD3d 384; Le Mieux v Alden High School, 1 AD3d 995.)
   OPINION OF THE COURT

Rosenblatt, J.

In General Municipal Law § 50-e, the Legislature enacted a protocol for serving a notice of claim as a condition precedent to a suit against a public corporation. Section 50-e (1) requires that the notice be served within 90 days after the claim arises. The Legislature, however, gave courts discretion to extend the time and devised criteria for determining whether to grant extensions (see Cohen v Pearl Riv. Union Free School Dist., 51 NY2d 256, 265-266 [1980]).

Section 50-e (5), the late-notice statute, directs the court to consider, in particular, whether within 90 days or a reasonable time thereafter the public corporation (or its attorney or insurance carrier) acquired actual knowledge of the facts underlying the claim. In deciding whether to grant an extension, the court must also consider a host of factors, including infancy and whether allowing late filing would result in substantial prejudice to the public corporation.

In the case before us, the infant plaintiff alleges that his epilepsy and developmental disabilities were the result of negligence on the part of Nassau County Medical Center and its employees in connection with his birth in September 1993. The medical employees in attendance gave his mother Pitocin, a drug used to facilitate the birth. The delivery involved two attempts at vacuum extraction and, ultimately, the use of forceps. According to the hospital records, the mother’s pelvis was adequate to accommodate the baby’s head and the birth was without complication. The infant weighed 8 pounds, SVa ounces. His Apgar score (an index to evaluate the condition of a newborn infant with 10 being a perfect score) was within satisfactory range: eight at one minute after birth and nine at five minutes after birth. The records also reveal that there were marks on his forehead from the forceps and his clavicle was broken.

In support of his motion for late service of a notice of claim, plaintiff submitted an affidavit from a physician who interpreted the hospital records and alleged that the hospital knew or should have known that complications would and did occur. He averred that the size of the mother’s pelvis and signs of fetal distress argued against the use of Pitocin, and that after birth the baby was trembling and showed physical signs of trauma. The defendants argue that plaintiffs disability was not apparent until, at the age of one or two, he began to experience epileptic seizures and show delayed development.

The record reveals that in 1995 plaintiff had an electroencephalogram (EEG), a test to trace his brain waves. The results were normal, but EEGs in 1998 and 1999 showed signs of abnormality. On September 5, 2003, 10 years after plaintiffs birth, his counsel sent the hospital a notice of claim alleging, in essence, that plaintiff suffered brain damage resulting from the hospital’s malpractice during his delivery.

Exercising its discretion, Supreme Court granted leave to serve the late notice. The Appellate Division, however, reversed “on the law and as a matter of discretion” (13 AD3d 363, 363 [2d Dept 2004]). We affirm. We will treat the three relevant General Municipal Law § 50-e (5) criteria in their statutory order.

Actual Knowledge of the Essential Facts

Plaintiff argues that the Appellate Division erred by requiring that the defendants have actual knowledge of the “specific claim.” In support, plaintiff emphasizes that section 50-e (5) contemplates “actual knowledge of the essential facts constituting the claim,” not knowledge of a specific legal theory. We agree, but do not read the Appellate Division’s decision as deviating from that principle.

The hospital’s records reveal that the delivery was difficult, but that when it was over there was scant reason to identify or predict any lasting harm to the child, let alone a developmental disorder or epilepsy. The infant’s Apgar scores were satisfactory, and even two years later his EEG was normal. Under these circumstances defendants could well have concluded that when plaintiff left the hospital there was nothing wrong with him beyond a broken clavicle.

We disagree with plaintiffs suggestion that because defendants have medical records, they necessarily have actual knowledge of the facts constituting the claim. Merely having or creating hospital records, without more, does not establish actual knowledge of a potential injury where the records do not evince that the medical staff, by its acts or omissions, inflicted any injury on plaintiff during the birth process.

The relevant inquiry is whether the hospital had actual knowledge of the facts—as opposed to the legal theory— underlying the claim. Where, as here, there is little to suggest injury attributable to malpractice during delivery, comprehending or recording the facts surrounding the delivery cannot equate to knowledge of facts underlying a claim.

Infancy

As to this factor, plaintiff claims that the Appellate Division improperly required that he show a “nexus” between his infancy and the delay in service, or, put differently, that the delay was a product of his infancy. The history of section 50-e (5) and the case law demonstrate that a nexus between infancy and delay, while not a requirement, remains a statutory factor that a court should take into account. The Appellate Division concluded that “the 10-year delay in moving, in effect, for leave to serve a late notice of claim was not the product of the plaintiffs infancy” (13 AD3d at 364). Its holding does not treat the absence of a nexus as fatal to a plaintiffs claim.

Before 1976, section 50-e (5) allowed late service, at the discretion of the court, “[w]here the claimant is an infant, or is mentally or physically incapacitated, and by reason of such disability fails to serve a notice of claim within the time specified” (emphasis supplied). Even then, this causation requirement was not inflexible. Analyzing the previous version of the statute, we stated in Matter of Murray v City of New York (30 NY2d 113 [1972]) that “[t]he impediment [to timely filing] may reasonably be presumed to attend infancy; there is no requirement that it be factually demonstrated” {id. at 120). Rather, the causative relationship between infancy and the delay was a matter committed to the court’s discretion, in view of the circumstances in a given case (id. at 119; see also Sherman v Metropolitan Tr. Auth., 36 NY2d 776 [1975]).

The Legislature deleted the causation language and added a list of considerations that should come into play, including the simple fact of infancy. This change, however, does not preclude a court from examining whether infancy caused the delay in serving the notice. In deciding whether to allow late service of a notice of claim the court must consider “all other relevant facts and circumstances” (General Municipal Law § 50-e [5]). A delay of service caused by infancy would make a more compelling argument to justify an extension. Conversely, the lack of a causative nexus may make the delay less excusable, but not fatally deficient. It all goes into the mix. The Appellate Division, we conclude, did not exceed its discretion by pointing out that, among other reasons for denying an extension, the delay was not the product of plaintiffs infancy.

Substantial Prejudice

Plaintiff also asks us to hold that the Appellate Division incorrectly burdened him with the responsibility of showing lack of substantial prejudice to the defendants as a result of late service of the notice of claim. Although the length of the delay is not alone dispositive, it is influential. Here, there was a 10-year delay.

On the theory that the hospital knew or should have known of the essential facts constituting his claim, plaintiff argues that the defendants were not substantially prejudiced. Like the length of the delay in service, proof that the defendant had actual knowledge is an important factor in determining whether the defendant is substantially prejudiced by such a delay. We have no cause to disturb the Appellate Division’s determination that defendants did not have actual knowledge. Accordingly, that Court’s finding of substantial prejudice was within its discretion.

In summary, the 1976 amendments to section 50-e (5) deemphasized the importance of a nexus between a plaintiffs infancy and the delay in service of a notice of claim. The statute now contains a nonexhaustive list of factors that the court should weigh, and compels consideration of all relevant facts and circumstances. This approach provides flexibility for the courts and requires them to exercise discretion. Under the pre-1976 version of the statute, we noted that “[wjhere satisfied that the court has acted within the perimeters of reason, we have consistently affirmed the exercise of discretion whether it has been invoked to sustain or deny grants of permission for late filing” (Matter of Murray, 30 NY2d at 119). In line with that premise, we find no abuse of discretion by the Appellate Division.

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

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Graffeo, Read and R.S. Smith concur.

Order affirmed, with costs.

      . Section 50-e (5) reads in pertinent part:
      “Upon application, the court, in its discretion, may extend the time to serve a notice of claim specified in paragraph (a) of subdivision one. The extension shall not exceed the time limited for the commencement of an action by the claimant against the public corporation. In determining whether to grant the extension, the court shall consider, in particular, whether the public corporation or its attorney or its insurance carrier acquired actual knowledge of the essential facts constituting the claim within the time specified in subdivision one or within a reasonable time thereafter. The court shall also consider all other relevant facts and circumstances, including: whether the claimant was an infant, or mentally or physically incapacitated, or died before the time limited for service of the notice of claim; whether the claimant failed to serve a timely notice of claim by reason of his justifiable reliance upon settlement representations made by an authorized representative of the public corporation or its insurance carrier; whether the claimant in serving a notice of claim made an excusable error concerning the identity of the public corporation against which the claim should be asserted; and whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits.”

      . Cf. Medley v Cichon, 305 AD2d 643 (2d Dept 2003) (where hospital records indicated, among other things, that infant plaintiff required resuscitation and had an Apgar score of zero, actual knowledge of injury was established).

      . In an analogous situation, commencing an action or special proceeding, late service is permissible under CPLR 306-b “upon good cause shown or in the interest of justice.” We have noted, in that context, that lengthy delays in service can lead a court to infer substantial prejudice (Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 107 [2001]).

      . See e.g. Matter of Andrew T.B. v Brewster Cent. School Dish, 18 AD3d 745, 748 (2d Dept 2005); Bazer v Town of Walworth, 277 AD2d 994, 995 (4th Dept 2000); Matter of Battle v City of New York, 261 AD2d 614, 615 (1st Dept 1999); Matter of Hunt v County of Madison, 261 AD2d 695, 696 (3d Dept 1999).


author: Graffeo, J.

text:
    [ 847 NE2d 1166, 814 NYS2d 592]
    In the Matter of City of New York, Respondent, Relative to Acquiring Title to Certain Real Property for the Construction of the Third Water Tunnel, Shaft 30B. Grand Lafayette Properties LLC, Appellant.
    Argued February 7, 2006;
    decided April 4, 2006

      POINTS OF COUNSEL

      Gibson, Dunn & Crutcher LLP, New York City (Jack M. Weiss, Randy M. Mastro, Cynthia S. Arato and Megan A. Burns of counsel), and Blank Rome LLP (James G. Greilsheimer of counsel) for appellant.
    I. The Appellate Division failed to recognize Grand Lafayette Properties LLC’s right to a pretaking evidentiary hearing on the excessiveness of the City of New York’s taking and erred in approving a taking that is prima facie excessive. (Hallock v State of New York, 32 NY2d 599; Onondaga Water Serv. Corp. v Crown Mills, 132 Misc 848; Sixth Ave. R.R. Co. v Kerr, 72 NY 330; County of Onondaga v Sargent, 92 AD2d 743; Jafco Realty Corp. v State of New York, 18 AD2d 74; Embury v Conner, 3 NY 511; Washington Cemetery v Prospect Park & Coney Is. R.R. Co., 68 NY 591; Matter of City of New York, 74 App Div 197, 174 NY 26; Matter of City of Syracuse, 230 App Div 522; Matter of Mayo v Windels, 255 App Div 22, 281 NY 837.) II. The taking of the subject property deprived Grand Lafayette Properties LLC of substantive due process of law. (De-Bari v Town of Middleton, 9 F Supp 2d 156; Arlington Heights v Metropolitan Housing Development Corp., 429 US 252; Town of Islip v Caviglia, 141 AD2d 148; Sharrock v Dell BuickCadillac, 45 NY2d 152; People v Singer, 44 NY2d 241; Natale v Town of Ridgefield, 170 F3d 258; County of Sacramento v Lewis, 523 US 833; Harlen Assoc. v Incorporated Vil. of Mineola, 273 F3d 494; Lubelle v City of Rochester, 145 AD2d 954; Deepwells Estates Inc. v Incorporated Vil. of Head of Harbor, 973 F Supp 338.) III. This Court has the power to review questions of fact that are not supported by evidence on the record or that are based on defective legal standards or procedures. (Stiles v Batavia Atomic Horseshoes, 81 NY2d 950; Schubtex, Inc. v Allen

      Snyder, Inc., 49 NY2d 1; Allende v New York City Health & Hosps. Corp., 90 NY2d 333; H & J Blits v Blits, 65 NY2d 1014; Matter of Rochester Urban Renewal Agency [Patchen Post], 45 NY2d 1.) IV The Appellate Division erred in ruling that certain of Grand Lafayette Properties LLC’s counterclaims and defenses were time-barred. (Hallock v State of New York, 32 NY2d 599; Headley v Noto, 22 NY2d 1; Town Bd. of Town of Fallsburgh v National Sur. Corp., 53 Misc 2d 23.)

      Michael A. Cardozo, Corporation Counsel, New York City (Paul T. Rephen and Joseph Bavuso of counsel), for respondent.
    I. Appellant is time-barred from challenging the City of New York’s acquisition of the property by condemnation. (Matter of East Thirteenth St. Community Assn. v New York State Urban Dev. Corp., 84 NY2d 287; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400; Matter of Binghamton Urban Renewal Agency v Manculich, 67 NY2d 434; City of Buffalo Urban Renewal Agency v Moreton, 100 AD2d 20; Town of Coxsackie v Dernier, 105 AD2d 966; Matter of City of New York, 5 Misc 3d 1014[A]; Matter of Douglaston & Little Neck Coalition v Sexton, 145 AD2d 480; Matter of Metropolitan Museum Historic Dist. Coalition v De Montebello, 3 Misc 3d 1109[A], 20 AD3d 28; Matter of Young v Board of Trustees of Vil. of Blasdell, 89 NY2d 846.) II. Even assuming arguendo that appellant’s challenge to the City of New York’s acquisition is timely, the City has done all that the EDPL requires and is therefore entitled to the order of condemnation granted in this proceeding. (Berman v Parker, 348 US 26; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400; Hallock v State of New York, 32 NY2d 599; Kaskel v Impellitteri, 306 NY 73, 347 US 934; Matter of Waldo’s, Inc. v Village of Johnson City, 74 NY2d 718; Matter of Gyrodyne Co. of Am., Inc. v State Univ. of N.Y. at Stony Brook, 17 AD3d 675; Matter of Bergen Swamp Preserv. Socy. v Village of Bergen, 294 AD2d 827; Matter of Fisher [New York State Urban Dev. Corp.], 287 AD2d 262; Greenwich Assoc. v Metropolitan Transp. Auth., 152 AD2d 216, 75 NY2d 865; Matter ofVaccaro v Jorling, 151 AD2d 34.)

      Kramer Levin Naftalis & Frankel LLP, New York City (Jeffrey L. Braun and Kerri B. Folb of counsel), for Real Estate Board of New York, Inc., amicus curiae.
    I. The owner here was deprived of an adequate opportunity to challenge the scope of the taking as excessive. (Hallock v State of New York, 32 NY2d 599; Matter of Feeney v Town/Village of Harrison, 4 AD3d 428; Matter of Rafferty v Town of Colonie, 300 AD2d 719; Matter of City of Syr

      acuse, 230 App Div 522; Harlen Assoc. v Incorporated Vil. of Mineola, 273 F3d 494; Deepwells Estates Inc. v Incorporated Vil. of Head of Harbor, 973 F Supp 338; DeBari v Town of Middleton, 9 F Supp 2d 156.) II. A permanent easement is an enforceable and adequate means for the government to take property. (Hallock v State of New York, 32 NY2d 599; Dowd v Ahr, 78 NY2d 469; Missionary Socy. of Salesian Congregation v Evrotas, 256 NY 86; Palostrada v Modugno, 168 AD2d 673; Castelli v Department of Transp. of State of N.Y., 163 AD2d 450; Smith v Orange & Rockland Util., 96 AD2d 901.)
   OPINION OF THE COURT

Graffeo, J.

The City of New York brought this eminent domain vesting proceeding to acquire a parcel of real property for use in a public improvement project involving the City’s water system. Because the landowner failed to timely challenge the taking in a CPLR article 78 proceeding, we conclude that its excessive taking claim is time-barred. We therefore affirm the grant of the petition permitting the City to take title.

Under the Eminent Domain Procedure Law (EDPL), a two-step process is required before a condemnor obtains title to property for public use. First, under EDPL article 2, the condemnor must make a determination to condemn the property either by using the hearing and findings procedures of EDPL 203 and 204 or by following an alternative procedure permitted by EDPL 206. Second, pursuant to EDPL article 4, the condemnor must seek the transfer of title to the property by commencing a judicial proceeding known as a vesting proceeding.

In September 2003, the City of New York’s Department of Environmental Protection (DEP) and Department of Citywide Administrative Services (DCAS) (collectively the City) began the first step in the condemnation process by filing an application with the Department of City Planning to condemn real property located at 142 Grand Street. At that time, the parcel was owned by Gerald Cohen. Respondent Grand Lafayette Properties LLC (GLP) operated a 95-vehicle parking lot on the 12,500-square-foot lot. The City sought to acquire the property in order to drill a 512-foot-deep shaft that, upon completion, will carry water from the Third Water Tunnel to the City’s water mains. The City proposed the construction of a large distribution chamber, three feet beneath the parcel’s ground surface, for the purpose of regulating water pressure. The application indicated that construction would take approximately 44 months and that the property would be substantially returned to its original condition upon completion, although an air vent and two hatchways allowing access to the chamber for maintenance and inspection purposes would be visible at ground level.

Employing an alternate condemnation procedure authorized under EDPL 206 (C)—the City’s Uniform Land Use Review Procedure (ULURP) (see NY City Charter §§ 197-c, 197-d)—the Department of City Planning certified the City’s application as complete and ready to proceed. Community Board 2 adopted a resolution recommending approval of the City’s application for acquisition, with the condition that the site be used ultimately for open space or a public park after project completion (see NY City Charter § 197-c [e]). The Manhattan Borough President approved the City’s application with the same condition (see NY City Charter § 197-c [g]). Acting as lead agency, DEP issued a negative declaration under the State Environmental Quality Review Act (SEQRA) and City Environmental Quality Review (CEQR) procedures.

In March 2004, the City Planning Commission (CPC) held a public hearing to review the City’s condemnation application (see NY City Charter § 197-c [h]). Cohen, the owner at the time, appeared at the hearing and voiced his opposition to the use of his parcel as a shaft site. GLR the current owner of the realty (GLP later entered into a contract to purchase the property from Cohen in April 2004 and acquired title in June 2004), does not deny that it also received notice of the hearing.

On April 14, 2004, the CPC issued a resolution approving the City’s request to acquire the property in its entirety, concluding that condemnation for construction of the shaft and related facilities was appropriate. The CPC’s determination discussed the public importance of the project and the planned use of the shaft, along with examining the City’s compliance with SEQRA, CEQR and ULURR The CPC also noted that, upon completion of the project, ownership of the site would revert to DCAS, while DEP would “retain a permanent easement of approximately 4,000 square feet for the area above the subsurface distribution chamber.” The CPC’s decision could have been reviewed by the City Council if the Council had chosen to do so within a 20-day “call-up” period (see NY City Charter § 197-d [b] [3]). In August 2004, the Office of the Mayor approved the acquisition. GLP did not commence an article 78 proceeding challenging the CPC’s resolution.

With all governmental approvals secured, in November 2004 the City commenced step two of the procedure, the vesting proceeding under EDPL 402, to formally acquire title to GLP’s property. Supreme Court ordered that GLP—who by this time had acquired ownership of the parcel—show cause why the City should not be granted permission to file an acquisition map and take title to the property in fee simple absolute. In response, GLP conceded that the City’s plan to construct the shaft served a public use, but asserted as an affirmative defense in its answer that the City’s taking of the entire premises in fee simple was excessive and therefore arbitrary and capricious. Relying on Hallock v State of New York (32 NY2d 599 [1973]), GLP claimed that the City could have achieved its objectives by less intrusive means, such as an easement or by acquisition of only a portion of the parcel. GLP later interposed similar allegations in a counterclaim in its amended answer.

GLP also requested that Supreme Court conduct an evidentiary hearing regarding its excessive taking claim. The City replied that GLP’s defenses and counterclaims were untimely and without merit. The court granted the City’s petition and rejected GLP’s excessiveness argument, determining that the City had adequately demonstrated its need for the entire premises. The court also dismissed GLP’s remaining counterclaims as time-barred. The Appellate Division affirmed and GLP appeals to this Court as of right (see CPLR 5601 [b] [1]). We now affirm.

The City argues that the courts below should not have addressed the excessive taking issue because GLP failed to timely raise it. The City contends that GLP should have sought review of its claim in an article 78 proceeding commenced within four months after the CPC’s April 2004 determination approving the condemnation became final. GLP counters that it validly raised the issue in its answer in this EDPL article 4 vesting proceeding. Before we resolve the appropriate procedure for judicial review of GLP’s excessive taking claim, a brief review of the operation of New York’s eminent domain law is helpful.

The Legislature enacted the EDPL “to supplant a mosaic of more than 150 scattered provisions with a uniform procedure” (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 417 [1986]). The main purpose of article 2 of the EDPL is to ensure that an appropriate public purpose underlies any condemnation (see id. at 417-418). To achieve this determination, a condemnor is required to hold a public hearing before it may approve the acquisition (see EDPL 201, 202, 203). The condemnor’s written determination must prescribe at least

“(1) the public use, benefit or purpose to be served by the proposed public project;
“(2) the approximate location for the proposed public project and the reasons for the selection of that location; [and]
“(3) the general effect of the proposed project on the environment and residents of the locality” (EDPL 204 [B]).

EDPL article 2 sets forth a judicial review procedure, which allows a condemnee only 30 days within which to commence a proceeding directly in the Appellate Division for review of the condemnor’s section 204 determination (see EDPL 207). The scope of review is very limited—the Appellate Division must “either confirm or reject the condemnor’s determination and findings,” and its review is confined to whether (1) the proceeding was constitutionally sound; (2) the condemnor had the requisite authority; (3) its determination complied with SEQRA and EDPL article 2; and (4) the acquisition will serve a public use (EDPL 207 [C]).

Significantly, the Legislature provided that, under certain circumstances, a condemnor need not comply with the notice, hearing and determination requirements of EDPL article 2. A number of alternative procedures that a condemnor may undertake are outlined in EDPL 206, any one of which exempts the condemnor from compliance with article 2. As relevant here, EDPL 206 (C) permits an exemption where

“pursuant to other law or regulation [the condemnor] undergoes or conducts or offers to conduct prior to an acquisition one or more public hearings upon notice to the public and owners of property to be acquired, and provided further that factors similar to those enumerated in [EDPL 204 (B)] herein may be considered at such public hearings.”

In this case, the City opted to proceed under EDPL 206 (C) by using its own land acquisition statute—the ULURP—which also requires public hearings to ensure valid public use.

Against this statutory backdrop, we examine the timeliness issue. Although EDPL 207 provides a 30-day statute of limitations, during which time period a condemnee must seek Appellate Division review of a section 204 determination, the EDPL is silent regarding the time period applicable to judicial review where a condemnor proceeds under a section 206 exemption. Generally, unless a statute specifies otherwise, a person aggrieved by an administrative agency’s determination must challenge that decision by initiating a timely article 78 proceeding in Supreme Court (see CPLR 7801). Here, pursuant to ULURP and EDPL 206 (C), the CPC—an administrative agency—issued a written resolution approving the City’s condemnation application in April 2004. It was therefore incumbent on GLP to timely bring an article 78 proceeding to review whether the CPC had approved an excessive taking.

An article 78 proceeding “must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner” (CPLR 217 [1]). Here, the parties differ as to when the statute of limitations began to run. The City argues that GLP’s claim accrued either when the CPC issued its resolution in April 2004 or upon expiration of the 20-day call-up period within which the City Council could have further reviewed the matter. GLP contends that the statute of limitations did not commence until the Office of the Mayor approved the acquisition in August 2004.

We have articulated a two-part test to resolve the question of when a decision is final for purposes of commencing the four-month statute of limitations. “First, the agency must have reached a definitive position on the issue that inflicts actual, concrete injury and second, the injury inflicted may not be prevented or significantly ameliorated by further administrative action or by steps available to the complaining party” (Matter of Best Payphones, Inc. v Department of Info. Tech. & Telecom, of City of N.Y., 5 NY3d 30, 34 [2005], rearg denied 5 NY3d 824 [2005]).

Here, although the CPC issued its determination in April 2004, the decision did not become final at that time since it was subject to potential substantive review by the City Council within a 20-day call-up period (see NY City Charter § 197-d [b] [3]). Upon expiration of this call-up period, however, the CPC’s determination became final and binding upon GLP because, at that point, GLP suffered a concrete injury not amenable to further administrative review and corrective action (see Best Payphones, 5 NY3d at 34; Matter of Throggs Neck Resident Council v Cahill, 290 AD2d 324 [1st Dept 2002]). The four-month period within which GLP could assert its excessive taking claim therefore began in May 2004 when the City Council’s call-up period expired. As such, GLP’s related counterclaim—interposed in its December 2004 answer in this EDPL 402 proceeding—is untimely and we are unable to address the merits of the taking claim.

We reject GLP’s position that its claim did not accrue until the Office of the Mayor approved the project in August 2004. Such certificate, denominated in part as an “Approval of Capital Budget Proposal,” was not part of the ULURP review process and did not involve any substantive analysis of the CPC’s EDPL 204 (B)-type findings. Hence, it was not the determination by which GLP became aggrieved (see Stop-The-Barge v Cahill, 1 NY3d 218, 223-224 [2003]; Matter of Long Is. Pine Barrens Socy. v Planning Bd. of Town of Brookhaven, 78 NY2d 608, 613 [1991]; Throggs Neck Resident Council, 290 AD2d at 324).

We are also unpersuaded by GLP’s argument that the affirmative defenses in its answer and amended answer in this EDPL article 4 vesting proceeding were the proper vehicles to raise its excessive taking claim. According to the EDPL, after a condemnor follows a proper procedure—either by complying with EDPL article 2’s notice, hearing and determination requirements, or an EDPL 206 exemption procedure—it has three years to commence a vesting proceeding to acquire title to the property (see EDPL 401, 402). If the court is satisfied that the condemnor has met all of the EDPL’s procedural requirements, it must grant the petition, thereby directing the condemnor to file the acquisition map and take title (see EDPL 402 [B] [5]).

Although some courts have indicated that a condemnee may test a condemnor’s procedural compliance with an exemption under EDPL 206 by way of its answer in the vesting proceeding (see e.g. Matter of Rockland County Sewer Disk No. 1 v J. & J. Dodge, 213 AD2d 409, 410 [2d Dept 1995]), we need not address that question here since the issue is not whether the City followed a suitable exemption procedure. Rather, CLP seeks judicial review of the merits of the CPC’s determination, asserting that acquisition of the entire parcel exceeds the City’s needs. We conclude that any challenge to the merits underlying the CPC resolution must be raised within the article 78 context. To hold otherwise would permit a condemnee to untimely contest issues that are outside the limited scope of an EDPL article 4 vesting proceeding.

We have examined GLP’s remaining contentions and find them without merit.

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

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Read and R.S. Smith concur.

Order affirmed, with costs.

      . The Third Water Tunnel is a massive public construction project, commenced in the 1970’s, to build another water tunnel approximately 500 feet beneath the City. When completed (around 2020), it will enable the City to shut down temporarily the two existing water tunnels for inspection and repair. Shaft 30B—the shaft designed for the property at issue—is part of the “Manhattan Leg” of the Third Water Tunnel. The Manhattan Leg is projected to run about nine miles and to deliver water through 10 shafts by gravity-fed pressure.

      . The amended answer also contained a number of other counterclaims relating to the City’s condemnation of the property. We agree with the courts below that these counterclaims are time-barred.

      . The condemnor’s petition must set forth (a) a statement of compliance with EDPL article 2 or with an exemption pursuant to EDPL 206; (b) a copy of the acquisition map; (c) a description of the property; (d) the public use; and (e) “a request that the court direct entry of an order authorizing the filing of the acquisition map . . . and that upon such filing, title shall vest in the condemnor” (EDPL 402 [B] [3]).

      . Analogously, where a condemnor makes a determination to acquire property pursuant to EDPL 204, the condemnee must seek review directly in the Appellate Division pursuant to EDPL 207. The condemnee may not wait until the condemnor initiates a vesting proceeding to raise its claims (see Matter of City of New Rochelle v O. Mueller, Inc., 191 AD2d 435, 436 [2d Dept 1993]; Matter of Farmington Access Rd. of Town of Farmington, 156 AD2d 936 [4th Dept 1989]).