text:
    [880 NE2d 861, 850 NYS2d 375]
    The People of the State of New York, Respondent, v William Cuadrado, Appellant.
    Argued November 13, 2007;
    decided December 18, 2007

      POINTS OF COUNSEL

      Office of the Appellate Defender, New York City (Margaret E. Knight, Richard M. Greenberg and Daniel A. Warshawsky of counsel), for appellant.
    The trial court properly granted William Cuadrado’s motion to vacate his conviction of assault in the first degree where Mr. Cuadrado’s conviction was the product of his guilty plea to a superior court information entered though he was not being held for grand jury action; his conviction thus suffered from a fundamental jurisdictional defect, and his challenge to that defect could not be waived and was not procedurally barred. (People v Boston, 75 NY2d 585; People v Iannone, 45 NY2d 589; People v Casdia, 163 AD2d 604, 78 NY2d 1024; People v Trueluck, 88 NY2d 546; People v Young, 241 AD2d 690; People v Davis, 171 AD2d 957; People v Robbins, 283 AD2d 152; People v Libby, 246 AD2d 669; People v Keizer, 100 NY2d 114; People ex rel. Battista v Christian, 249 NY 314.)

      Robert M. Morgenthau, District Attorney, New York City (Michael S. Morgan and Eleanor J. Ostrow of counsel), for respondent.
    The Appellate Division correctly held that defendant’s motion to vacate his judgment of conviction was subject to the mandatory procedural bar imposed by CPL 440.10 (2) (c). (People v Farrar, 52 NY2d 302; People v Cameron, 83 NY2d 838; People v Escobar, 61 NY2d 431; People v Cooks, 67 NY2d 100; People v Mower, 97 NY2d 239; People ex rel. Gibbs v Vincent, 39 NY2d 918; People v Sadness, 300 NY 69; People v Howard, 12 NY2d 65; People v Smith, 79 NY2d 309; People v Boston, 75 NY2d 585.)
   OPINION OF THE COURT

Smith, J.

Defendant waived indictment and pleaded guilty to a charge contained in a superior court information. It is now conceded that the waiver and plea were invalid, but defendant appealed from his conviction without complaining of that defect. We hold that defendant is barred from raising the issue later, in a motion to vacate his conviction under CPL 440.10.

Facts and Procedural History

In 1991, defendant was one of a group of men who tried to rob a delicatessen. Two people were shot, and one of them died. Defendant was indicted for murder, attempted robbery, and criminal possession of a weapon. He was not indicted on any assault charge, but in 1992 he agreed to plead guilty to assault in the first degree, among other crimes; to implement this agreement, he signed a waiver of indictment and pleaded guilty to a superior court information alleging first-degree assault. He received a sentence of 4 to 12 years for that crime, to run consecutively to other sentences imposed on him.

The People now concede that the waiver of indictment was invalid (see NY Const, art I, § 6 [permitting waiver of indictment for an “infamous crime” only by “a person held for the action of a grand jury” on a charge “other than one punishable by death or life imprisonment”]; People v Boston, 75 NY2d 585 [1990]; People v Trueluck, 88 NY2d 546 [1996]). As Boston and Trueluck illustrate, this was a defect that defendant could have challenged on direct appeal. However, defendant appealed his conviction to the Appellate Division without raising this issue, or any other except the claimed excessiveness of his sentence.

In 2004, 12 years after pleading guilty, defendant moved under CPL 440.10 to vacate his assault conviction, relying on the invalid waiver of indictment. Supreme Court granted the motion, but the Appellate Division reversed, with one Justice dissenting (People v Cuadrado, 37 AD3d 218 [1st Dept 2007]). An Appellate Division Justice granted leave to appeal, and we now affirm the order of the Appellate Division.

Discussion

Defendant’s motion to vacate his conviction is barred by CPL 440.10 (2) (c), which says:

“[T]he court must deny a motion to vacate a judgment when: . . .
“(c) Although sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant’s . . . unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him.”

CPL 440.10 (1) lists, among the grounds it permits a defendant to raise, a contention that “[t]he court did not have jurisdiction of the action or of the person of the defendant” (CPL 440.10 [1] [a]). A motion on this ground, as on all the other grounds listed in the statute, must be denied when the circumstances described in CPL 440.10 (2) (c) exist.

Defendant does not dispute that those circumstances exist here: he has omitted an issue that he could have raised on appeal, and then raised the same issue in a CPL article 440 motion. He argues, however, that the statutory bar may not be applied in this case, because the defect he complains of is a “fundamental jurisdictional” one. We reject the argument. Whether or not a defect is properly described by the adjectives “fundamental” and “jurisdictional,” it is within the power of the Legislature to make reasonable rules governing when those defects may be complained of. As long as those rules give a defendant a fair opportunity to vindicate his rights, they should be enforced. CPL 440.10 (2) (c) is such a rule.

Defendant contends that he has a constitutional right to attack his conviction collaterally, despite his failure to do so on direct appeal. He relies on People ex rel. Battista v Christian (249 NY 314 [1928]), in which habeas corpus was granted to a defendant who had pleaded guilty to an invalidly-filed information. But Battista was decided before CPL article 440 was enacted. Neither it nor any other case holds that the Legislature cannot regulate the manner in which a jurisdictional defect in a conviction may be raised.

There are obvious good reasons for the Legislature’s choice to require that jurisdictional, as well as other, defects that can be raised on direct appeal be raised in that way or not at all. As this case shows, a less restrictive rule would be an invitation to abuse. There is no indication in this record that defendant was dissatisfied with his plea when he entered it, or even when he chose to appeal the resulting conviction on no ground except the excessiveness of the sentence. He delayed for 12 years in raising the issue he now raises. It would be at best difficult and at worst impossible for the People to revive the case against him now, and there is no good reason to require them to do so.

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

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

Order affirmed.


source: Caselaw Access Project

author: CIPARICK, J.

license: Public Domain

text:
    [880 NE2d 6, 849 NYS2d 485]
    In the Matter of Jennifer Amorosi, Appellant, v South Colonie Independent Central School District et al., Respondents.
    Argued November 13, 2007;
    decided December 18, 2007

      POINTS OF COUNSEL

      Powers & Santola, LLP Albany (Michael J. Hutter of counsel), and Harris & Conway, PLLC for appellant.
    I. The three-year statute of limitations contained in CPLR 214 (2) that governs civil actions to recover damages pursuant to the Human Rights Law for unlawful discrimination by private and public employers is equally applicable to an unlawful discrimination action against a school district and its officials. (City of Schenectady v State Div. of Human Rights, 37 NY2d 421; Board of Educ. of Union Free School Dist. No. 2, E. Williston, Town of N. Hempstead v New York State Div. of Human Rights, 42 AD2d 49, 35 NY2d 673; Mills v County of Monroe, 89 AD2d 776, 59 NY2d 307; Stoetzel v Wappingers Cent. School Dist., 166 AD2d 643; Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539; Board of Educ. of Union Free School Dist. No. 2, E. Williston, Town of N. Hempstead v New York State Div. of Human Rights [Arluck], 44 NY2d 902; Lane-Weber v Plainedge Union Free School Dist., 213 AD2d 515, 87 NY2d 968; Pierson v City of New York, 56 NY2d 950; Matter of Stevens v Board of Educ. of McGraw Cent. School Dist., 261 AD2d 698; Murphy v American Home Prods. Corp., 58 NY2d 293.) II. Petitioner’s application to file a late notice of claim is not untimely as it was made 20 months after the accrual of petitioner’s discrimination claim, well within the three-year statute of limitations governing her claim. III. This matter must be remanded to the Appellate Division so that the Court can determine and review whether Supreme Court abused its discretion in granting petitioner’s application.

      Ryan & Smallacombe, PLLC, Albany (John F. Moore of counsel), for respondents.
    The one-year statute of limitations contained in Education Law § 3813 (2-b) is applicable to all New York State actions or proceedings, including discrimination claims. (Mills v County of Monroe, 59 NY2d 307; Pierson v City of New York, 56 NY2d 950; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; Patrolmen’s Benevolent Assn. of City of N.Y. v City of New York, 41 NY2d 205; Matter of Raritan Dev. Corp. v Silva, 91 NY2d 98; Matter of Charter Dev. Co., L.L.C. v City of Buffalo, 6 NY3d 578; Matter of M.B., 6 NY3d 437; State of New York v Patricia II., 6 NY3d 160; Matter of Tall Trees

      Constr. Corp. v Zoning Bd. of Appeals of Town of Huntington, 97 NY2d 86; Matter of Brown v Wing, 93 NY2d 517.)

      James R. Sandner, Latham, and Kevin H. Harren for New York State United Teachers, amicus curiae.
    The appropriate statute of limitations for challenging unlawful discrimination by a school district is the three-year statute set forth in CPLR 214 (2). (Murphy v American Home Prods. Corp., 58 NY2d 293; Koerner v State of N.Y., Pilgrim Psychiatric Ctr., 62 NY2d 442.)
   OPINION OF THE COURT

CIPARICK, J.

In this appeal we are asked to determine the statute of limitations applicable to a damages claim for illegal workplace discrimination brought under Executive Law § 296 against a school district. We conclude that the clear and unambiguous language of Education Law § 3813 (2-b) provides that the statute of limitations on such a claim is one year.

Petitioner Jennifer Amorosi was hired by respondent school district in July 1999 as a temporary part-time guidance counselor. In January 2001, she became a full-time counselor and began a three-year probationary period, at the end of which the district would decide whether to grant her tenure. In January 2002, petitioner commenced a maternity leave, returning to work in September 2002. In June 2003, petitioner and the district agreed to extend her probationary period until June 2004. In the first three school years of petitioner’s employment, she received favorable reviews, indicating that she was progressing toward tenure. Petitioner’s July 2003 review, however, stated that her prospects for tenure depended upon addressing certain performance-related recommendations. Three months later, in October 2003, petitioner sought a second maternity leave. After returning from her second leave in December 2003, petitioner alleges that she received the “poorest” review rating to date and was asked to resign. Petitioner resigned in January, effective June 2004. Petitioner alleges that in early 2005 she became aware of the school district’s alleged pattern of discriminatory practices toward pregnant teachers from a local newspaper and from conversations with other female employees who were denied tenure.

On September 7, 2005, petitioner commenced this proceeding against the district and several of its employees. In accordance with Education Law § 3813 (2-a), she sought leave to serve a late notice of claim. In her claim, petitioner alleges that she was discriminated against in violation of Executive Law § 296 because she took maternity leave.

Relying on Lane-Weber v Plainedge Union Free School Dist. (213 AD2d 515, 516 [2d Dept 1995], lv dismissed 87 NY2d 968 [1996]) and Stoetzel v Wappingers Cent. School Dist. (166 AD2d 643, 643 [2d Dept 1990]), Supreme Court granted petitioner’s application for leave to serve a late notice of claim, holding that CPLR 214 (2) provides a three-year statute of limitations for an Executive Law § 296 claim brought against a school district. The Appellate Division reversed, rejected the reasoning of the Second Department cases relied upon by Supreme Court and concluded that the clear language of Education Law § 3813 (2-b) provides for a one-year statute of limitations. Further, the Appellate Division held that Supreme Court lacked the discretion to grant “petitioner’s application for leave to serve a late notice of claim since petitioner commenced this proceeding more than one year after her cause of action arose” (34 AD3d 1073, 1074 [2006]). We granted leave to appeal, and now affirm.

Education Law § 3813 governs the presentation of claims against a governing body of a school district. Subdivision (1) provides, in relevant part, that:

“No action or special proceeding, for any cause whatever, . . . shall be prosecuted or maintained against any school district. . . unless ... a written verified claim upon which such action or special proceeding is founded was presented to the governing body of said district or school within three months after the accrual of such claim.”

Tort claims against a school district are excepted from the statute’s notice requirements, and must comply with the notice requirements found in General Municipal Law § 50-e {see Education Law § 3813 [2]). However, a claimant who fails to timely notify the governing body within the three months, pursuant to Education Law § 3813 (1), may apply for an extension. Education Law § 3813 (2-a) provides that “[u]pon application, the court, in its discretion, may extend the time to serve a notice of claim. The extension shall not exceed the time limited for the commencement of an action by the claimant against any district or any such school.” The time limited for commencement of such action is provided for in Education Law § 3813 (2-b), which states that:

“Except as provided in subdivision two of this section and, notwithstanding any other provision of law providing a longer period of time in which to commence an action or special proceeding, no action or special proceeding shall be commenced against any entity specified in subdivision one of this section more than one year after the cause of action arose.”

Thus, according to the statute, a late notice of claim must be filed no later than one year after a cause of action accrues. The question for us to determine is whether this one-year statute of limitations applies to an Executive Law § 296 cause of action.

In Koerner v State of N.Y., Pilgrim Psychiatric Ctr. (62 NY2d 442, 446 [1984]) and Murphy v American Home Prods. Corp. (58 NY2d 293, 307 [1983]), we concluded that the history of the Human Rights Law (Executive Law § 290 et seq.) compelled the conclusion that the statute of limitations for a discrimination claim is three years. Petitioner argues that this three-year statute of limitations should likewise apply to claims brought against a school district notwithstanding the language of Education Law § 3813 (2-b). She urges that the statute’s legislative history evinces the intent to have that provision’s one-year statute of limitations refer only to contract disputes against school districts, and that applying a one-year statute of limitations to a single class of employees—school district employees—runs counter to the goals of New York’s Human Rights Law. Respondents, on the other hand, maintain that the plain language of Education Law § 3813 (2-b) provides for a one-year statute of limitations for all non-tort claims, including actions to redress discriminatory practices, and that the cases relied upon by petitioner are inapposite. We agree with respondents.

Petitioner’s reliance on Koerner and Murphy is misplaced. The defendant in Koerner was Pilgrim State Psychiatric Center, a facility operated under the jurisdiction of the New York State Department of Mental Hygiene, and in Murphy the defendant was American Home Products Corporation, a private employer. Neither involved application of the Education Law with its shortened statute of limitations. To be sure, we opined in those cases that the applicable statute of limitations for the subject Executive Law § 296 discrimination claims was three years, but those conclusions were not based on application of Education Law § 3813.

Petitioner’s reliance on Lane-Weber and Stoetzel is equally misplaced, even though the defendants in those matters were indeed school districts. In Lane-Weber, the Appellate Division, citing to Koerner, stated that the statute of limitations for an Executive Law § 296 claim is three years. The issue in that case, however, was whether an action under Executive Law § 296 is subject to the notice of claim provisions in either Education Law § 3813 (2) or General Municipal Law § 50-e. The court held that the Executive Law § 296 claim is not subject to either notice of claim provision because a discrimination action is not a tort claim.

In Stoetzel, the Appellate Division, citing to Koerner and Murphy, likewise opined that the statute of limitations for an Executive Law § 296 claim is three years. The issue there, however, was whether the plaintiff complied with the notice of claim requirement or sought leave to serve a late notice of claim within that three-year statute of limitations. The court concluded that the plaintiff had failed on both counts, and that the plaintiffs motion for leave to serve a late notice of claim was properly denied.

Thus, neither decision involved the specific application of Education Law § 3813 (2-b) to an Executive Law § 296 claim, as is the case here.

Petitioner urges us to consider the legislative history of the Human Rights Law and Education Law § 3813 to determine what statute of limitations the Legislature intended to apply to an Executive Law § 296 claim against a school district. We have previously opined that:

“[I]t is fundamental that a court, in interpreting a statute, should attempt to effectuate the intent of the Legislature, but we have correspondingly and consistently emphasized that where the statutory language is clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used ....
“We have provided further clear teaching and guidance that absent ambiguity the courts may not resort to rules of construction to broaden the scope and application of a statute, because no rule of construction gives the court discretion to declare the intent of the law when the words are unequivocal. Lastly, the courts are not free to legislate and if any unsought consequences result, the Legislature is best suited to evaluate and resolve them” (Matter of Raritan Dev. Corp. v Silva, 91 NY2d 98, 106-107 [1997] [internal quotation marks, citations, emphasis and brackets omitted]).

We are hard-pressed to find any ambiguity in the language of section 3813 (2-b). Petitioner has not identified any, and in fact concedes that the language is clear but asks us to give way to legislative intent, claiming that this one-year statute of limitations was created solely as relates to claims by contractors and further that a one-year statute of limitations is contrary to the intent underlying the legislative creation of civil remedies to redress Human Rights Law violations.

Despite any provision for a longer statute of limitations, such as the three-year statute of limitations in CPLR 214 (2), as urged by petitioner, the one-year limitation prescribed in Education Law § 3813 (2-b) should govern discrimination claims against a school district. This is because the Legislature’s intent is discernible from the unequivocal language of subdivision (2-b); we need not resort to rules of construction or consider the legislative history of either the Human Rights Law or Education Law § 3813 here. Moreover, grafting the three-year statute of limitations of CPLR 214 (2) onto Education Law § 3813, to create an exception, would render the statute’s unambiguous language superfluous. As we have stated previously, such a construction should be avoided (see Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 587 [1998]).

Furthermore, “[t]he Legislature is presumed to be aware of the law in existence at the time of an enactment” (B & F Bldg. Corp. v Liebig, 76 NY2d 689, 693 [1990]). The Human Rights Law was enacted in 1968, and Education Law § 3813 (2-b) was enacted in 1981. Had the Legislature wanted a longer statute of limitations for illegal workplace discrimination claims against school districts, it could have excepted those claims from the language of Education Law § 3813 (2-b), just as it did for tort claims in Education Law § 3813 (2). It did not do so.

We conclude that the latest that petitioner’s claim against the district could have accrued was January 2004, when she resigned. Petitioner’s September 2005 application for leave to file a late notice of claim, filed more than a year and eight months after her resignation, was thus untimely. Although the result is in apparent contradiction with the policy of eliminating employment discrimination in the public sector, Education Law § 3813 (2-b) left Supreme Court without discretion to grant petitioner’s application to serve a late notice of claim.

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

Chief Judge Kaye and Judges Graffeo, Read, Smith, Pigott and Jones concur.

Order affirmed, with costs.


author: Ciparick, J.

text:
    [880 NE2d 22, 849 NYS2d 501]
    Gabriel Fischbarg, Respondent, v Suzanne Doucet, Also Known as Suzanne Bell-Doucet, et al., Appellants.
    Argued November 15, 2007;
    decided December 20, 2007

      POINTS OF COUNSEL

      Samuel E. Kramer, New York City, for appellants.
    I. The decision and order should be reversed and the complaint should be dismissed for the reasons set forth in the Appellate Division dissent. (McKee Elec. Co. v Rauland-Borg Corp., 20 NY2d 377; Warck-Meister v Diana Lowenstein Fine Arts, 7 AD3d 351; Jones v Munroe, 2 Misc 3d 24; Liberatore v Calvino, 293 AD2d 217; Libra Global Tech. Servs. [UK] v Telemedia Intl., 279 AD2d 326; Granat v Bochner, 268 AD2d 365; Kreutter v McFadden Oil Corp., 71 NY2d 460; Haar v Armendaris Corp., 40 AD2d 769; Johnson v Ward, 4 NY3d 516; Kazlow & Kazlow v Goodman & Co., 92 Misc 2d 1084.) II. It appears that a number of conclusions reached in the decision and order are not congruent with the record. (Rocha Toussier y Asociados v Rivero, 91 AD2d 137; Peterson v Spartan Indus., 33 NY2d 463; Ying Jun Chen v Lei Shi, 19 AD3d 407; Cliffstar Corp. v California Foods Corp., 254 AD2d 760; Granat v Bochner, 268 AD2d 365; Ziperman v Frontier Hotel of Las Vegas, 50 AD2d 581.) III. Neither the decision and order nor the motion court order holds respondent to his burden of proving jurisdiction. (Teplin v Manafort, 81 AD2d 531; Roldan v Dexter Folder Co., 178 AD2d 589; Spectra Prods. v Indian Riv. Citrus Specialties, 144 AD2d 832; Brandt v Toraby, 273 AD2d 429; Boser v Burdick, 62 AD2d 1134; O’Brien v Hackensack Univ. Med. Ctr., 305 AD2d 199.)

      Gabriel Fischbarg, New York City, respondent pro se.
    I. The trial court and Appellate Division did not err in finding personal jurisdiction over appellants. (Kaczorowski v Black & Adams, 293 AD2d 358; Colucci & Umans v 1 Mark, 224 AD2d 243; Ot

      terbourg, Steindler, Houston & Rosen v Shreve City Apts., 147 AD2d 327; Elman v Belson, 32 AD2d 422.) II. The conclusions reached in the decision are entirely consistent with the record. III. Appellants’ argument that the complaint fails to identify the basis for long-arm jurisdiction should not be considered because it is being raised for the first time on appeal. (Devlin v Video Servs. Acquisition, 188 AD2d 370; Chiulli v Cross Westchester Dev. Corp., 130 AD2d 616; Habenicht v Nassau County Dept. of Social Servs., 123 AD2d 667; Ford v Martino, 281 AD2d 587; Gonfiantini v Zino, 184 AD2d 368; Antonetti v City of Syracuse, 52 AD2d 742.)
   OPINION OF THE COURT

Ciparick, J.

In this appeal, we are asked to determine whether Supreme Court properly exercised personal jurisdiction over defendants, an individual and corporation, both residents of California, who retained a New York attorney to represent the corporation in an action brought in an Oregon federal court. Because we conclude that defendants’ retention and subsequent communications with plaintiff in New York established a continuing attorney-client relationship in this state and thereby constitute the transaction of business under CPLR 302 (a) (1), we hold that the exercise of jurisdiction was proper.

I.

In February 2001, defendant Suzanne Bell-Doucet, a California resident and president of defendant Only New Age Music, Inc. (ONAM), a California corporation, placed a telephone call to plaintiff, attorney Gabriel Fischbarg, a member of the New York bar, at his New York office. During the ensuing conversation, the parties discussed plaintiffs potential representation of ONAM in a lawsuit alleging breach of contract, fraud and copyright infringement claims against Allegro Corp., a nonparty Oregon corporation. On February 23, Ms. Bell-Doucet sent a letter to plaintiffs New York office to confirm that he “offered to take this case on [a one-third] contingency” and that she would pay him a $2,000 deposit “against expenses.” Enclosed with the February 23 letter were “contracts, copyrighted material, [an] outline of events, and copies of correspondence” for plaintiff s review. According to plaintiff, after receiving these materials, he entered into a retainer agreement with defendants by telephone from his New York office.

On May 30, 2001, Allegro filed suit against ONAM in the United States District Court for the District of Oregon. Although plaintiff was admitted to that court pro hac vice, during the course of the Oregon action, he was never physically present in Oregon. Nor did he ever meet with plaintiffs in California. Instead, plaintiff conducted his work pertaining to the Oregon action—allegedly 238.4 hours worth—from New York. He appeared at depositions and court conferences, and argued a motion for summary judgment via telephone from New York.

In addition, defendants repeatedly communicated with plaintiff in New York. According to plaintiff, over the course of approximately nine months (May 2001 through January 2002) during his representation of ONAM in the Oregon action, he spoke with defendants by telephone at least twice per week regarding their case. Plaintiffs time records also show that on at least 31 occasions defendants sent e-mails regarding the Oregon case to plaintiff, that on three occasions they faxed materials to him, and that defendants sent plaintiff documents, by either mail or e-mail, seven times.

On January 15, 2002, a dispute regarding the terms of plaintiffs retainer agreement arose. That same day, defendants accepted plaintiffs e-mailed resignation as their attorney. While the Oregon action was still pending, plaintiff moved the Oregon court for an order awarding him $57,906.05 for services rendered prior to his resignation. The court denied plaintiffs motion, concluding that it lacked personal and subject matter jurisdiction over the fee dispute. But the Oregon court held that a series of e-mails between plaintiff and defendant Bell-Doucet prior to his resignation established his contractual right to “a fair legal fee” at the conclusion of the Oregon action.

On January 10, 2005, defendants entered into a settlement agreement that terminated the Oregon action. On January 31, plaintiff initiated the present lawsuit seeking damages for breach of contract and unjust enrichment. His complaint recited no specific statutory basis for personal jurisdiction over defendants. It simply alleged that defendant Bell-Doucet “is an individual residing in Los Angeles, California” and that defendant ONAM “is a California corporation doing business in this State.” Defendants responded with a motion to dismiss for lack of personal jurisdiction under CPLR 3211 (a) (8).

Supreme Court denied the motion. It held that it could properly exercise personal jurisdiction over defendants pursuant to CPLR 302 (a) (1) because their “activities in retaining plaintiff, . . . a New York attorney[,] situated in New York, to represent them in the Oregon Action w[ere] purposeful and a sufficient nexus exists between that retention . . . and the instant claim regarding allegedly unpaid legal fees” (2005 NY Slip Op 30141[U], *6). The Appellate Division, in a 3-2 decision, agreed.

The majority reasoned that by seeking out plaintiffs representation in New York and “[b]y working with plaintiff on a consistent basis . . . defendants ‘transacted business’ in New York sufficient to subject themselves to this State’s jurisdiction” (38 AD3d 270, 274 [2007]). But two Justices dissented, finding the defendants’ contacts with this state “insufficient” to confer CPLR 302 (a) (1) jurisdiction (id. at 276). The dissenters supported their reasoning with our decision in Haar v Armendaris Corp. (31 NY2d 1040 [1973]), which they interpreted as precluding plaintiff from relying upon his “own activities in New York ... to establish jurisdiction” (38 AD3d at 278).

Thereafter, the Appellate Division granted defendants leave to appeal to this Court and certified to us the question whether its “order . . . which affirmed the order of the Supreme Court [was] properly made?” We answer that question in the affirmative.

II.

Defendants argue that they have transacted no business in New York because they have not purposefully availed themselves of the privileges and protections of our state’s laws. According to them, their retention of plaintiff and their communications—by telephone, facsimile and e-mail—with him are, as a matter of law, insufficient predicates for long-arm jurisdiction. Further, defendants contend that the courts below erroneously-relied upon plaintiffs unilateral New York activities to uphold jurisdiction. Plaintiff argues to the contrary. We agree with plaintiff.

CPLR 302 (a) (1) jurisdiction is proper “even though the defendant never enters New York, so long as the defendant’s activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted” (Deutsche Bank Sec., Inc. v Montana Bd. of Invs., 7 NY3d 65, 71 [2006], quoting Kreutter v McFadden Oil Corp., 71 NY2d 460, 467 [1988]). Purposeful activities are those with which a defendant, through volitional acts, “avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws” (McKee Elec. Co. v Rauland-Borg Corp., 20 NY2d 377, 382 [1967]; see also Ford v Unity Hosp., 32 NY2d 464, 471 [1973] [holding that third-party defendant did not engage in “purposeful() avail(ment)” because it “purposefully avoided any contacts with New York, limiting its agency agreement ... to certain States, excluding New York”]).

Not all purposeful activity, however, constitutes a “transaction of business” within the meaning of CPLR 302 (a) (1). Thus, we have held that “merely telephoning] a single order” to New York requesting a shipment of goods to another state (see Parke-Bernet Galleries v Franklyn, 26 NY2d 13, 17 [1970], citing M. Katz & Son Billiard Prods. v Correale & Sons, 20 NY2d 903 [1967]), the transitory presence of a corporate official here (see McKee, 20 NY2d at 382), and communications and shipments sent here by an out-of-state doctor serving as a “consultant” to plaintiffs New York physician (see Etra v Matta, 61 NY2d 455, 458-459 [1984]) do not support CPLR 302 (a) (1) jurisdiction. Here, however, we are not presented with such limited contacts. Instead, the case before us concerns defendants’ purposeful attempt to establish an attorney-client relationship here and their direct participation in that relationship via calls, faxes and e-mails that they projected into this state over many months. Although it is impossible to precisely fix those acts that constitute a transaction of business, our precedents establish that it is the quality of the defendants’ New York contacts that is the primary consideration (see Siegel, NY Prac § 86 [4th ed], citing Longines-Wittnauer Watch Co. v Barnes & Reinecke, 15 NY2d 443 [1965]).

The quality of defendants’ contacts here establishes a transaction of business in New York. Defendants sought out plaintiff in New York and established an ongoing attorney-client relationship with him. Plaintiffs time records and affidavit demonstrate that during the course of the representation, defendants communicated regularly with him in this state. These facts are similar to those in George Reiner & Co. v Schwartz (41 NY2d 648 [1977]). There, the defendant, a resident of Massachusetts, traveled to New York in response to an advertisement, published in the Boston Globe, seeking salesmen (see id. at 649). While here, he entered into an agreement to work on defendant’s behalf in “the New England area,” which was defined to exclude New York (see id.). In concluding that CPLR 302 (a) (1) jurisdiction over the defendant was proper in a breach of contract suit brought in this state, we emphasized that the defendant’s New York contacts comprised “the purposeful creation of a continuing relationship with a New York corporation” (id. at 653; see also id. at 654 [distinguishing McKee because of the “nature and quality” of the New York contact]). A continuing relationship was also contemplated and created here, as evidenced by defendants’ retention letter and the many communications cited in plaintiffs affidavit and time records, even though defendants never entered New York.

The fact that the defendant in Reiner was physically present in New York, whereas defendants here were not, is immaterial. It is well settled that “one need not be physically present [here] . . . to be subject to the jurisdiction of our courts under CPLR 302” (Parke-Bernet, 26 NY2d at 17). Indeed, we reaffirmed this principle just last year in upholding long-arm jurisdiction over a “sophisticated institutional trader” who communicated with a New York securities broker using an “instant messaging service” akin to e-mail (Deutsche Bank, 7 NY3d at 69, 71 [reasoning that “technological advances in communication( ) enable a party to transact enormous volumes of business within a state without physically entering it”]). Thus, even when physical presence is lacking, jurisdiction may still be proper if the defendant “on his [or her] own initiative . . . projects] himself [or herself]” into this state to engage in a “sustained and substantial transaction of business” (see Parke-Bernet, 26 NY2d at 18). Accordingly, in Parke-Bernet we held that exercising long-arm jurisdiction over the defendant, who actively participated in a New York auction by means of an open telephone line, was proper (see id. at 19 [holding that “(t)he mere fact that the defendant was able to arrange to conduct his extensive and purposeful activity in New York without having to physically come here does not enable him to avoid the jurisdiction of our courts”]).

Like the defendant in Parke-Bernet, defendants here have also engaged in sustained and substantial transaction of business in New York. They contacted plaintiff here to retain him and thereby projected themselves into our state’s legal services market (see Parke-Bernet, 26 NY2d at 18). Thereafter, on their own volition, they continued their communications with plaintiff here, utilizing his services and thus “ ‘invoking] the benefits and protections of [our] laws’ relating to” the attorney-client relationship (see id. [telephonic communication invoked New York’s auction laws]; see also Mayes v Leipziger, 674 F2d 178, 184 [2d Cir 1982] [“(I)n Parke-Bernet Galleries, the defendant had projected itself by means of letters and calls into market activity that was ongoing in New York, and hence had purposely availed itself of the privilege of conducting such activities within the state”]). It is the nature and quality of these contacts, through which defendants established a substantial ongoing professional commitment between themselves and plaintiff, governed by the laws of our state, which support long-arm jurisdiction.

Contrary to defendants’ argument, this is not a case in which plaintiff is attempting to establish long-arm jurisdiction on the basis of his unilateral conduct in New York. We have previously held that an agent may not rely upon his or her own New York contacts on behalf of a principal to establish long-arm jurisdiction (see e.g. Glassman v Hyder, 23 NY2d 354, 362 [1968] [“The acts of the independent broker within New York should not, however, be attributed to the owners so as to become acts of the owners in New York”]; Parke-Bernet, 26 NY2d at 19 n 2 [explaining result in Glassman and similar cases]). But this is not such a case. Here, it is defendants’ solicitation of plaintiff in New York and their frequent communications with him in this state that form the basis of jurisdiction.

Haar v Armendaris Corp. (31 NY2d 1040 [1973] [adopting dissenting memorandum at 40 AD2d 769, 769-770 (1972)]) is not to the contrary. There, the defendant, a Delaware corporation, wrote to an attorney located in Massachusetts, but admitted to the New York bar, and requested that he negotiate with a New York corporation, on its behalf (40 AD2d 769, 769 [1972]). The attorney traveled to New York to carry out this task and sued for his legal fees here, serving the defendant in Missouri (see id. at 770 [Capozzoli, J., dissenting]). Adopting the dissent, we reversed the Appellate Division’s finding of CPLR 302 (a) (1) jurisdiction because the only support for such jurisdiction was an affidavit indicating, “in [a] conclusory fashion,” that “plaintiff had negotiated in New York City . . . and had visited the Welfare Island site here” (40 AD2d at 770). As we noted in Parke-Bernet, such an affidavit was insufficient because a plaintiff may not “rely[ ] on his own activities within the State, rather than on defendant’s independent activities” to invoke long-arm jurisdiction (see id., citing Parke-Bernet, 26 NY2d at 19 n 2).

Unlike the plaintiff in Haar, plaintiff here has set forth facts establishing that defendants did engage in activities in New York. His affidavit and time records show that defendants solicited plaintiff here by telephone and mail and regularly communicated with him in New York during the course of an attorney-client relationship (compare e.g. Etra, 61 NY2d at 458 [rejecting long-arm jurisdiction where defendant doctor was solicited in Massachusetts, served as “consultant” to plaintiffs New York doctor through written and telephonic communications, and sent an experimental drug into New York]; Ehrenfeld v Bin Mahfouz, 9 NY3d 501, 511 [2007] [decided today] [no long-arm jurisdiction where plaintiff relied upon her “unilateral activities” in New York and a judgment issued by an English court to establish a transaction of business in this state]). These are proper predicates for CPLR 302 (a) (1) jurisdiction. In contrast, the defendant in Haar had no New York contacts in connection with the plaintiffs representation of it. Its contacts were with its attorney in Massachusetts. Thus, Haar is fully consistent with our decision here (cf. Mayes, 674 F2d at 185 [“So far as we are aware, no court has extended § 302 (a) (1) to reach a nondomiciliary who never entered New York, who was solicited outside of New York to perform services outside of New York, who performed outside of New York such services as were performed, and who is alleged to have neglected to perform other services outside of New York”]).

III.

The courts below also properly concluded that the present action arises out of defendants’ transaction of business in New York. There is a substantial relationship between plaintiffs action for fees accrued during his representation of defendant ONAM in the Oregon action, defendants’ solicitation of plaintiff in New York to represent ONAM in that action and defendants’ communications with plaintiff in this state with respect to the Oregon matter (see Johnson v Ward, 4 NY3d 516, 519 [2005]). These are not “merely coincidental” occurrences that have a tangential relationship to the present case (see id. at 520). They form the basis of this action and, indeed, plaintiffs claims for legal fees are directly dependent upon them.

Furthermore, our decision accords with due process. As we have explained, the United States Supreme Court’s due process precedents provide that: “So long as a party avails itself of the benefits of the forum, has sufficient minimum contacts with it, and should reasonably expect to defend its actions there, due process is not offended if that party is subjected to jurisdiction even if not ‘present’ in that State” (Kreutter, 71 NY2d at 466). Defendants here purposefully availed themselves of New York’s legal services market by establishing a continuing attorney-client relationship with plaintiff. Their contacts here were sufficient, consisting of solicitation of plaintiffs services here and frequent communications with him. Given these facts, they should have reasonably expected to defend against a suit based on their relationship with plaintiff in New York (see e.g. Reiner, 41 NY2d at 653 [New York contacts that “contemplated and resulted in a continuing relationship . . . certainly are of the nature and quality to be deemed sufficient to render (defendants) liable to suit here”]).

IV

In conclusion, when defendants projected themselves into New York via telephone to solicit plaintiffs legal services, they necessarily contemplated establishing a continuing attorney-client relationship with him. Having established such a relationship and repeatedly projecting themselves into New York—via telephone, mail, e-mail and facsimile—to advance their legal position in the Oregon action through communications with plaintiff here, defendants purposefully availed themselves of the benefits and protections of New York’s laws governing lawyers. This lawsuit arises out of defendants’ contacts here. Requiring them to defend the present suit properly comports with traditional notions of fair play and substantial justice.

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

Chief Judge Kaye and Judges Graffeo, Read, Pigott and Jones concur; Judge Smith taking no part.

Order affirmed, etc.

      . Before this Court, defendants have disputed the frequency of their telephonic conversations with plaintiff. But the record reflects no such discrepancy. Instead, in an affidavit, defendant Bell-Doucet admitted to engaging in some unspecified “limited number” of phone calls with plaintiff. Plaintiff does admit, however, that the time records he submitted do not catalog each and every telephone call between the parties. Those records only reflect eight such calls.

      . Plaintiff has annotated his time records to indicate when he received mail or e-mail from defendants. Seven of his entries, however, do not make clear which of these media defendants used to communicate with him.

      . These calculations do not take into account communications that occurred following the fee dispute that forms the basis of this action.

        . Prior to his resignation, defendants made two payments to plaintiff, totaling $2,000. The record is silent regarding where these payments were tendered.

      . Defendants claim that plaintiffs complaint is subject to dismissal because it failed to allege a basis for personal jurisdiction. Defendants are wrong (see Vincent C. Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C302:5 [“Nowhere in the CPLR’s rules of pleading is there any requirement of an allegation of the court’s jurisdiction”]). Rather, “[i]f the defendant moves to dismiss due to the absence of a basis of personal jurisdiction, the plaintiff must come forward with sufficient evidence, through affidavits and relevant documents, to prove the existence of jurisdiction” (id.). This is precisely what occurred here.

      . Defendants fail to account for the significance of this continuing relationship. This is evidenced by their reliance upon trial court decisions rejecting CPLR 302 (a) (1) jurisdiction where a New York real estate agent “traveled to Florida” and executed an agreement in that state to market properties in Florida, Maryland, Washington, D.C., and Virginia with a Florida corporation (see Kimco Exch. Place Corp. v Thomas Benz, Inc., 9 Misc 3d 1125[A], 2005 NY Slip Op 51791[U], *3 [Sup Ct, Nassau County 2005]) and where a California corporation purchased a quantity of yarn on one occasion from a New York manufacturer (see Southern Indus. of Clover, Ltd. v Tex-Cellence, Inc., 7 Misc 3d 1007[A], 2005 NY Slip Op 50480[U] [Sup Ct, Bronx County 2005]). Although these cases state the general proposition that telephone calls, e-mails and faxes are not, in and of themselves, sufficient long-arm predicates, they offer little guidance in deciding the present case, which concerns the solicitation of and participation in an ongoing attorney-client relationship with a New York lawyer.

      . Defendants maintain that they derived no benefit from our state’s laws through their establishment of an attorney-client relationship with plaintiff. That is false (see e.g. 22 NYCRR 1210.1 [setting forth New York’s “Client Bill of Rights,” which provides, among other things, that clients, such as defendants, are “entitled to be charged a reasonable fee”]).

      . Defendants’ reliance upon our decision in Ferrante Equip. Co. v Lasker-Goldman Corp. (26 NY2d 280 [1970]) is similarly misplaced. There it was established that “[t]he only activities conducted by respondent which are related to appellant’s cause of action were the negotiation and execution of the indemnity agreement in New Jersey” (see id. at 284). Here, by contrast, there are substantial and sustained New York contacts initiated by defendants.


author: Graffeo, J.

text:
    [880 NE2d 18, 849 NYS2d 497]
    In the Matter of Derek Josey, Appellant, v Glenn S. Goord, as Commissioner of Correctional Services, Respondent.
    Argued November 15, 2007;
    decided December 20, 2007

      POINTS OF COUNSEL

      Prisoners’ Legal Services of New York, Albany (Dianna Goodwin, Susan Johnson and Karen Murtagh-Monks of counsel), for appellant.
    I. New York’s transactional analysis approach to res judicata barred respondent from holding a third disciplinary hearing against appellant. (Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304; Matter of Hernandez v Selsky, 5 AD3d 882; Matter of Burgess v Goord, 285 AD2d 753; O’Brien v City of Syracuse, 54 NY2d 353; Ryan v New York Tel. Co., 62 NY2d 494; Marinelli Assoc. v Helmsley-Noyes Co., 265 AD2d 1; Smith v Russell Sage Coll., 54 NY2d 185; Matter of Reilly v Reid, 45 NY2d 24; Thomas v City of New York, 239 AD2d 180; Matter of Doherty v Cuomo, 76 AD2d 14.) II. Appellant’s criminal conviction does not fall within the newly discovered material evidence exception to the doctrine of res judicata. (Matter of Hernandez v Selsky, 5 AD3d 882; Matter of Evans v Monaghan, 306 NY 312; Matter of Burgess v Goord, 285 AD2d 753; Gonzalez v Chalpin, 233 AD2d 367; Olwine, Connelly, Chase, O’Donnell & Weyher v Valsan, Inc., 226 AD2d 102; Matter of Hartje v Coughlin, 70 NY2d 866; Matter of Doherty v Cuomo, 76 AD2d 14; People ex rel. Leonard HH. v Nixon, 148 AD2d 75; Porter v Coughlin, 421 F3d 141; Matter of Howard v Coughlin, 212 AD2d 852.) III. Respondent should not be permitted to use the administrative Penal Law offense rule to overcome the well-established legal doctrine of res judicata. (Matter of Campagna v Shaffer, 73 NY2d 237; Boreali v Axelrod, 71 NY2d 1; Matter of Encarnacion v Goord, 286 AD2d 828; Matter of Soto-Rodriguez v Goord, 252 AD2d 782; Matter of Caroselli v Goord, 23 AD3d 712; Matter of Garcia v Coombe, 233 AD2d 328; Matter of Griffen v Goord, 277 AD2d 612; Matter of Hart v Coombe, 229 AD2d 754; Matter of Reilly v Reid, 45 NY2d 24.)

      Andrew M. Cuomo, Attorney General, Albany (Martin A. Hotvet, Barbara D. Underwood and Andrew D. Bing of counsel), for respondent.
    Res judicata did not foreclose the prison disciplinary determination at issue here. (Ryan v New York Tel. Co., 62 NY2d 494; O’Brien v City of Syracuse, 54 NY2d 353; Matter of Evans v Monaghan, 306 NY 312; Matter of Hodes v Axelrod, 70 NY2d 364; Matter of Meegan S. v Donald T., 64 NY2d 751; Matter of John P. v Whalen, 54 NY2d 89; People ex rel. Williams v Rodriguez, 108 AD2d 1007; People ex rel. Mosery v Superintendent of Nassau County Correctional Facility, 8 AD3d 593; People ex rel. McEneny v New York State Div. of Parole, 268 AD2d 250; People v Vasquez, 89 NY2d 521.)
   OPINION OF THE COURT

Graffeo, J.

Petitioner, an inmate in the custody of the New York State Department of Correctional Services (DOCS), brings this CPLR article 78 proceeding claiming that the doctrine of res judicata precludes the imposition of a prison disciplinary penalty based on his second-degree manslaughter conviction because he was previously disciplined in connection with the incident underlying his criminal conviction. Like the courts below, we conclude that res judicata does not apply under these circumstances.

On July 17, 2003, petitioner Derek Josey and another inmate, Richard Rodriguez, engaged in a physical altercation witnessed by over 300 other prisoners. During the fight, petitioner stabbed Rodriguez in the chest. He died later that day. Three days later, DOCS charged petitioner in a misbehavior report with breaching inmate rules prohibiting assault, fighting, possession of a weapon and refusal to obey a direct order. The report stated that three correction officers observed “two combatants lunging back and forth at each other, with what appeared to be weapons in hand.” Following the completion of a tier III disciplinary hearing on July 30, 2003, a hearing officer found petitioner guilty of the assault, fighting and weapon charges, and imposed a penalty of 24 months in the Special Housing Unit (SHU) with a corresponding loss of packages, commissary and telephone privileges. For reasons that are unexplained in the record, neither the misbehavior report nor the hearing officer’s written determination indicated Rodriguez’s death.

A second DOCS misbehavior report premised on the same incident was served on petitioner in September 2003, charging him with violating the disciplinary rules proscribing assault, possession of a weapon, refusal to obey a direct order and violent conduct. This report added that Rodriguez had died and that confidential informants stated that petitioner had stabbed Rodriguez with a metal shank, which was hidden with the help of other inmates. According to the report, State Police retrieved the weapon. After this tier III hearing, petitioner was found guilty of assault, possession of a weapon and violent conduct, and assessed a penalty of 120 months in the SHU with a loss of privileges. On administrative review, the penalty was reduced to 60 months in the SHU. Petitioner brought an article 78 proceeding in Supreme Court to annul the determination, arguing that it was barred by res judicata. While that court proceeding was pending, DOCS reversed its determination, reasoning that the incident had already been considered at the July 2003 hearing. As a result, petitioner withdrew his article 78 petition.

In August 2004, petitioner appeared in Dutchess County Court and pleaded guilty to second-degree manslaughter (Penal Law § 125.15 [1]) in connection with the July 17, 2003 incident, and was sentenced as a second felony offender to a consecutive term of 6V2 to 13 years. DOCS later issued a third misbehavior report, charging petitioner with violating disciplinary rule 1.00 (7 NYCRR 270.2 [A]), which authorizes DOCS to discipline an inmate convicted of violating the Penal Law. Following a third tier III hearing, the hearing officer found petitioner guilty and imposed an additional 72 months in the SHU, together with a loss of privileges and 156 months loss of good time. The determination was affirmed on administrative appeal.

Petitioner commenced this article 78 proceeding, asserting that the doctrine of res judicata prohibited DOCS from holding the third tier III hearing. Supreme Court denied the petition and dismissed the proceeding, finding res judicata inapplicable. The Appellate Division affirmed and we granted petitioner leave to appeal.

Petitioner argues that the third tier III determination must be annulled on res judicata grounds because the Penal Law conviction, upon which the determination was based, arose out of the same July 17, 2003 incident for which he was already assessed a penalty following the first tier III determination. DOCS counters that application of res judicata under the circumstances of this case would be inconsistent with the purpose of prison disciplinary proceedings and unduly hamper its ability to regulate the security and safety of the prison environment.

The doctrine of res judicata precludes a party from litigating “a claim where a judgment on the merits exists from a prior action between the same parties involving the same subject matter” (Matter of Hunter, 4 NY3d 260, 269 [2005]). Under New York’s transactional approach to the rule, “once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy” (O’Brien v City of Syracuse, 54 NY2d 353, 357 [1981]). Additionally, res judicata is generally applicable to quasi-judicial administrative determinations that are “rendered pursuant to the adjudicatory authority of an agency to decide cases brought before its tribunals employing procedures substantially similar to those used in a court of law” (Ryan v New York Tel. Co., 62 NY2d 494, 499 [1984]).

Before we will apply res judicata to an administrative decision, however, “it is necessary to determine whether to do so would be consistent with the function of the administrative agency involved, the peculiar necessities of the particular case, and the nature of the precise power being exercised” (Matter of Venes v Community School Bd. of Dist. 26, 43 NY2d 520, 524 [1978] [internal quotation marks and citation omitted]). Consequently, the rule should give conclusive effect to agency determinations “only if such application is consistent with the nature of the particular administrative adjudication” (id.; see also Borchers and Markell, New York State Administrative Procedure and Practice § 3.23, at 76 [2d ed] [observing that “preclusion must make sense within the over-all context of the agency’s procedures” (internal quotation marks and footnote omitted)]).

Here, DOCS promptly issued petitioner a misbehavior report after the fight and held a tier III hearing, ultimately finding petitioner guilty of violating a number of inmate rules and imposing a penalty. In this regard, DOCS urges that immediate disciplinary action is essential to maintain order in correctional facilities and discourage violent behavior by inmates. Since it was not until over a year later that petitioner pleaded guilty to second-degree manslaughter, DOCS contends that it must be able to conduct another tier III hearing pursuant to disciplinary rule 1.00, which permits the imposition of departmental sanctions based on a criminal conviction and specifically provides that it “does not preclude an inmate from being disciplined at any time for any violation of the following rules of conduct based upon the same incident” (7 NYCRR 270.2 [A] [note]). Although petitioner correctly asserts that both determinations arose out of the same July 17, 2003 transaction, we conclude that res judicata does not foreclose DOCS from disciplining petitioner for his subsequent criminal conviction. Application of the doctrine in this context would be inconsistent with the necessities of the case and the nature of DOCS’s functions.

We have recognized that DOCS “has legitimate penological interests in seeing that disciplinary determinations are made quickly, both for security and rehabilitative reasons” (People ex rel. Vega v Smith, 66 NY2d 130, 142 [1985]). “Prison disciplinary proceedings take place in a highly charged atmosphere, and prison administrators must often act swiftly on the basis of evidence that might be insufficient in less exigent circumstances” (Superintendent, Mass. Correctional Institution at Walpole v Hill, 472 US 445, 456 [1985]). Furthermore, when an inmate is confined pending a disciplinary hearing, departmental regulations provide circumscribed time frames for the adjudicatory process (see 7 NYCRR 251-5.1). Generally, DOCS is directed to commence the hearing within seven days of confinement and complete it within 14 days following the issuance of a misbehavior report (see 7 NYCRR 251-5.1 [a], [b]).

DOCS therefore has both a need and general obligation to act swiftly to separate and discipline inmates who commit violent acts in prison, often before it can perform a comprehensive investigation. Indeed, prison disciplinary determinations need only be supported by substantial evidence (see Matter of Lahey v Kelly, 71 NY2d 135, 140 [1987]). In contrast, where a criminal investigation results in a subsequent conviction, issues such as mens rea and self-defense are necessarily resolved beyond a reasonable doubt, and this distinction is not obviated by an inmate who acknowledges his guilt by entering a plea, as was the case here. ****8 In the prison setting, DOCS has a strong penological interest in having the ability not only to conduct a disciplinary proceeding and impose a penalty for the violation of disciplinary rules, but also to modify that penalty in light of a subsequent criminal conviction premised on the same act—as expressly contemplated by disciplinary rule 1.00. For example, where two inmates are promptly disciplined for fighting, but one is later criminally convicted of attempted murder for initiating the confrontation, DOCS should have the discretion to modify that inmate’s penalty in the interest of prison security. As we have stated, the goal of prison disciplinary action is not “to vindicate public justice, but rather to further the separate and important public interest in maintaining prison order and safety” (People v Vasquez, 89 NY2d 521, 529 [1997], cert denied sub nom. Cordero v Lalor, 522 US 846 [1997] [internal quotation marks omitted]).

We therefore determine that res judicata does not preclude DOCS from disciplining an inmate for being convicted of a Penal Law offense even though DOCS previously assessed a penalty for the inmate’s violation of disciplinary rules stemming from the same conduct. To conclude otherwise would impede DOCS’s ability to promote prison safety and have the perverse effect of encouraging DOCS hearing officers to impose more stringent disciplinary penalties initially, before any criminal investigation and proceedings are concluded.

Accordingly, the order of the Appellate Division should be affirmed, without costs.

Chief Judge Kaye and Judges Cipakick, Read, Smith, Pigott and Jones concur.

Order affirmed, without costs.

      . No disciplinary rule specifically prohibits homicide.

      . Petitioner was originally indicted for murder, but pleaded guilty to manslaughter in full satisfaction of the indictment.

      . Additionally, a consecutive sentence is generally required for inmates who are convicted of committing a felony while incarcerated for a prior felony conviction, resulting in a lengthier prison term under DOCS’s supervision (see Penal Law § 70.25 [2-a], [5]). But when DOCS disciplines an inmate before a conviction, DOCS is unable at that time to consider the effect of such increased incarceration on prison safety and security when rendering the penalty.