author: ClPARICK, J.

text:
    [857 NE2d 1114, 824 NYS2d 584]
    Eric Parker, Appellant, v Mobil Oil Corporation et al., Respondents. (And Third-Party Actions.)
    Argued September 5, 2006;
    decided October 17, 2006

      POINTS OF COUNSEL

      Kreindler & Kreindler LLP, New York City (Marc S. Moller and Blanca I. Rodriguez of counsel), and Baggett, McCall, Burgess, Watson & Gaughan, Lake Charles, Louisiana (William B. Baggett, Sr., Wells T. Watson and Jeffrey T. Gaughan of counsel), for appellant.
    Where the causal link between benzene and leukemia is established science, and plaintiffs expert uses the generally accepted methodology of differential etiology to opine that plaintiffs 17-year exposure to benzene caused his leukemia, there is no Frye test novel science issue, and it is for the jury to decide whether benzene caused plaintiffs leukemia by a preponderance of the evidence, taking account of the facts surrounding plaintiffs exposure to benzene, his personal risk factors, and the expert’s testimony based on deductive clinical reasoning and scientific data. (Stubbs v City of Rochester, 226 NY 516; Ruggiero v Warner-Lambert Co., 424 F3d 249; Marsh v Smyth, 12 AD3d 307; People v Wesley, 83 NY2d 417; People v Wernick, 89 NY2d 111; People v Lee, 96 NY2d 157; People v Carroll, 95 NY2d 375; People v Angelo, 88 NY2d 217; People v Jeter, 80 NY2d 818; People v Taylor, 75 NY2d 277.)

      Wilson, Elser, Moskowitz, Edelman & Dicker LLP, Newark, New Jersey, and New York City (Robert J. Kelly, Richard E. Lerner, Robert P. Scott and Suna Lee of counsel), for Mobil Oil Corporation and another, respondents.
    I. To defeat a motion for summary judgment in a case requiring expert proof, the expert’s opinion must be predicated upon reliable facts and data. (Alvarez v Prospect Hosp., 68 NY2d 320; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851; Amatulli v Delhi Constr. Corp., 77 NY2d 525; Romano v Stanley, 90 NY2d 444; United States v Benson, 941 F2d 598.) II. The Appellate Division correctly subjected plaintiffs unsworn expert reports to Frye scrutiny and properly deemed them insufficient to defeat defendant’s motion. (People v Wesley, 83 NY2d 417; Frye v United States, 293 F 1013; People v Wernick, 89 NY2d 111; Selig v Pfizer, Inc., 185 Misc 2d 600, 290 AD2d 319; Hammond v Alekna Constr., 269 AD2d 773; Collins v Welch, 178 Misc 2d 107; Daubert v Merrell Dow Pharmaceuticals, Inc., 509 US 579; Gallegos v Elite Model Mgt. Corp., 195 Misc 2d 223; Zafran v Zafran, 191 Misc 2d 60; Cameron v Knapp, 137 Misc 2d 373.) III. Plaintiffs reliance upon the “differential etiology” methodology to avoid Frye scrutiny is misplaced. (Frye v United States, 293 F 1013; McClain v Metabolife Intl., Inc., 401 F3d 1233; Bitler v A.O. Smith Corp., 391 F3d 1114; Norris v Baxter Healthcare Corp., 397 F3d 878; Hall v Baxter Corp., 947 F Supp 1387; Stubbs v City of Rochester, 226 NY 516; Ruggiero v Warner-Lambert Co., 424 F3d 249; Cavallo v Star Enter., 892 F Supp 756, 100 F3d 1150; Sutera v Perrier Group of Am. Inc., 986 F Supp 655; Whiting v Boston Edison Co., 891 F Supp 12.) IV Plaintiffs reliance on the practical probability test is misplaced, since no such test exists. (Matter of Miller v National Cabinet Co., 8 NY2d 277; Dangler v Town of Whitestown, 241 AD2d 290; Farkas v Saary, 191 AD2d 178; Smith v Johnson & Johnson Co., 6 Misc 3d 1001[A], 2004 NY Slip Op 51670[U]; Matter of New York City Asbestos Litig., 24 AD3d 375; Hallaban v Ashland Chem. Co., 267 AD2d 657.)

      Smith Mazure Director Wilkins Young & Yagerman, PC., New York City {Joel Simon of counsel), for Island Transportation Corporation, respondent.
    I. The Appellate Division was correct in ruling that under Frye v United States (293 F 1013 [1923]), plaintiffs expert testimony was inadmissible. (Zito v Zabarsky, 28 AD3d 42; Whiting v Boston Edison Co., 891 F Supp 12; Sutera v Perrier Group of Am. Inc., 986 F Supp 655; Berk v St. Vincent’s Hosp. & Med. Ctr., 380 F Supp 2d 334; Becker v National Health Prods., Inc., 896 F Supp 100.) II. The Appellate Division properly granted summary judgment. (Gadman v Catalfo, 251 AD2d 370; Cobb v New York City Hous. Auth., 251 AD2d 362; Shinn v Lefrak Org., 239 AD2d 335.) III. Plaintiff-appellant’s argument was not raised in the lower court and is therefore not properly before this Court.

      Rivkin Radler LLP, Uniondale {James Quinn, Jay D. Kenigsberg and Harris J. Zakarin of counsel), for Getty Petroleum Marketing, Inc., respondent.
    Plaintiff failed to demonstrate that the opinions of plaintiffs expert were based upon principles and procedures generally accepted in the relevant scientific community and therefore admissible under the Frye rule. (Frye v United States, 293 F 1013.)

      Locks Law Firm, PLLC, New York City {Seth R. Lesser of counsel), and Val Washington for American Trial Lawyers Association and another, amici curiae.
    I. The Appellate Division erred in applying the Frye test to the foundational inquiry into whether a particular expert properly applied a generally accepted methodology to the facts of the case. (Marsh v Smyth, 12 AD3d 307; Zito v Zabarsky, 28 AD3d 42; People v Wesley, 83 NY2d 417; Frye v United States, 293 F 1013; People v Brown, 97 NY2d 500; People v Lee, 96 NY2d 157; McCarthy v Handel, 297 AD2d 444; People v Reynolds, 193 Misc 2d 697; Daubert v Merrell Dow Pharmaceuticals, Inc., 509 US 579; Sutera v Perrier Group of Am. Inc., 986 F Supp 655.) II. This Court should not impose on trial judges the responsibility to act as gatekeeper to scrutinize whether an expert has properly applied a generally accepted methodology. (Barefoot v Estelle, 463 US 880; In re Japanese Elec. Prods. Antitrust Litig., 723 F2d 238, revd on other grounds sub nom. Matsushita Elec. Industrial Co. v Zenith Radio Corp., 475 US 574; Christophersen v Allied-Signal Corp., 939 F2d 1106, 503 US 912; Ferebee v Chevron Chem. Co., 736 F2d 1529; In re Paoli R.R. Yard PCB Litig., 35 F3d 717, 513 US 1190; Moore v Ashland Chem. Inc., 151 F3d 269; Maye v Stearns, 19 AD3d 902; People v Middleton, 54 NY2d 42; Parklane Hosiery Co. v Shore, 439 US 322; Galloway v United States, 319 US 372.)

      Metzer Law Group, APLC, Long Beach, California (Raphael Metzger of counsel), for Council for Education and Research on Toxics and others, amici curiae.
    I. A worker should not be required to quantify his cumulative benzene dose, because cumulative dose has not been validated as the scientifically valid dose metric for assessing leukemogenis risk from benzene exposure, and other dose metrics may be more relevant. II. A plaintiff in a benzene leukemia case should not be required to quantify his cumulative benzene dose, because benzene monitoring is rarely done and estimating a worker’s cumulative benzene dose by experimentation or modeling is either impossible or impracticable. (Industrial Union Dept., AFL-CIO v American Petroleum Institute, 448 US 607.) III. There is no persuasive scientific evidence that a threshold for benzene-induced leukemia exists, and substantial scientific evidence negates the existence of a threshold for benzene-induced leukemia. IV As more and more scientific research is done, increasingly lower levels of benzene exposure are being reported to cause leukemia. V Individual factors of susceptibility, i.e., genetic polymorphisms of susceptibility — rather than a worker’s benzene dose — are the primary determinants of a worker’s risk of leukemia. VI. A quantified dose is not needed to prove that benzene exposure caused a worker’s leukemia; benzene induction of leukemia can often be proved by pathology, by cytogenetics, and other means.

      Mayer, Brown, Rowe & Maw, Washington, D.C. (Andrew J. Pincus, Charles A. Rothfeld and Rajesh De of counsel), and National Chamber Litigation Center, Inc. (Robin S. Conrad and Amar D. Sarwal of counsel), for Chamber of Commerce of the United States of America, amicus curiae.
    I. When expert scientific testimony is necessary to establish the causal connection between plaintiffs alleged injury and defendant’s product or conduct, the decision whether to admit or exclude such evidence is of critical importance. (Frye v United States, 293 F 1013; Lara v New York City Health & Hosps. Corp., 305 AD2d 106; Savage v Union Pac. R.R. Co., 67 F Supp 2d 1021; In re Agent Orange Prod. Liab. Litig., 611 F Supp 1223; Daubert v Merrell Dow Pharmaceuticals, Inc., 509 US 579; General Electric Co. v Joiner, 522 US 136; People v Wesley, 83 NY2d 417; People v Wernick, 89 NY2d 111; People v Angelo, 88 NY2d 217; People v Lee, 96 NY2d 157.) II. This Court should affirm the Appellate Division because expert causation testimony is subject to the same standard as all other scientific evidence and is admissible only if it relies upon generally accepted principles to show a link between plaintiff’s injury and defendant’s product or conduct. (Frye v United States, 293 F 1013; People v Wesley, 83 NY2d 417; Styles v General Motors Corp., 20 AD3d 338; Heckstall v Pincus, 19 AD3d 203; Pauling v Orentreich Med. Group, 14 AD3d 357; Selig v Pfizer, Inc., 290 AD2d 319; Zito v Zabarsky, 28 AD3d 42; Lewin v County of Suffolk, 18 AD3d 621; Del Maestro v Grecco, 16 AD3d 364; Saulpaugh v Krafte, 5 AJD3d 934.) III. Failure to preserve the standard for admission of expert causation testimony would subvert the fairness of the trial process, produce insupportable results, and impose significant burdens on the judicial system. (In re Agent Orange Prod. Liab. Litig., 611 F Supp 1223.)

      Malaby, Carlisle & Bradley, LLC, New York City (Robert C. Malaby and David P. Schaffer of counsel), Crowell & Moring LLP, Washington, D.C. ("William L. Anderson and Jennifer G. Knight of counsel), and Shook, Hardy & Bacon, LLP (Victor E. Schwartz and Mark A. Behrens of counsel), for Coalition for Litigation Justice, Inc., amicus curiae.
    I. Careful scrutiny of novel tort expert evidence is a necessary part of modern tort jurisprudence under Frye v United States (293 F 1013 [1923]) or Daubert v Merrell Dow Pharmaceuticals, Inc. (509 US 579 [1993]). (General Electric Co. v Joiner, 522 US 136; Bartel v John Crane, Inc., 316 F Supp 2d 603, affd, sub nom. Lindstrom v A-C Prod. Liab. Trust, 424 F3d 488; Nelson v Tennessee Gas Pipeline Co., 243 F3d 244.) II. A “differential diagnosis” performed by these and other experts is reviewable under Frye v United States (293 F 1013 [1923]). (General Electric Co. v Joiner, 522 US 136; Lust By & Through Lust v Merrell Dow Pharms., Inc., 89 F3d 594.) III. Low-dose exposure cases require a more rigorous dose assessment than the anecdotal stories and subjective terminology applied by Drs. Landrigan and Goldstein. (Brock v Merrell Dow Pharms., Inc., 874 F2d 307, 884 F2d 166; Chambers v Exxon Corp., 81 F Supp 2d 661; Allen v Pennsylvania Eng’g Corp., 102 F3d 194; Hall v Baxter Healthcare Corp., 947 F Supp 1387; Conde v Velsicol Chem. Corp., 804 F Supp 972; Norris v Baxter Healthcare Corp., 397 F3d 878; In re Breast Implant Litig., 11 F Supp 2d 1217; Allison v McGhan Med. Corp., 184 F3d 1300; McClain v Metabolife Intl., Inc., 401 F3d 1233; Bartel v John Crane, Inc., 316 F Supp 2d 603; Mitchell v Gencorp Inc., 165 F3d 778.)

      Michael A. Cardozo, Corporation Counsel, New York City {Leonard Koerner, Fay Leoussis, Christopher G. King, Amy London and Elizabeth S. Natrella of counsel), for City of New York and another, amici curiae.
    New York State courts must exercise a strong gatekeeping role to ensure that only expert opinion evidence on causation that is based on sound scientific principles and methodologies is admitted into evidence. In the instant case, the Appellate Division correctly determined that plaintiff did not meet his burden to show that the expert opinion was based on a scientifically reliable methodology. (People v Wesley, 83 NY2d 417; Frye v United States, 293 F 1013; Daubert v Merrell Dow Pharmaceuticals, Inc., 509 US 579; People v LeGrand, 196 Misc 2d 179; Buchholz v Trump 767 Fifth Ave., LLC, 5 NY3d 1; Diaz v New York Downtown Hosp., 99 NY2d 542; Romano v Stanley, 90 NY2d 444; Matter of Angel A., 92 NY2d 430; People v Angelo, 88 NY2d 217; Del Maestro v Grecco, 16 AD3d 364.)

      Debevoise & Plimpton LLP, New York City (Anne E. Cohen, Robert D. Goodman and Genevieve A. Pope of counsel), and Hugh F. Young, Jr., Reston, Virginia, for Product Liability Advisory Council, Inc., amicus curiae.
    I. This Court should articulate a test for trial courts to follow when determining the admissibility of scientific expert testimony that ensures that causation evidence is reliable and genuinely scientific. (Frye v United States, 293 F 1013; People v Wesley, 83 NY2d 417; People v Wernick, 89 NY2d 111; Clemente v Blumenberg, 183 Misc 2d 923; Saulpaugh v Krafte, 5 AD3d 934; Selig v Pfizer, Inc., 290 AD2d 319; Matter of New York City Asbestos Litig., 24 AD3d 375; Amorgianos v National R.R. Passenger Corp., 303 F3d 256; In re Joint E. & S. Dist. Asbestos Litig., 52 F3d 1124; Castellow v Chevron USA, 97 F Supp 2d 780.) II. Plaintiffs radical and one-sided proposals to rewrite the law governing admissibility of expert causation evidence should be rejected. (Saulpaugh v Krafte, 5 AD3d 934; Selig v Pfizer, Inc., 290 AD2d 319; Hymowitz v Eli Lilly & Co., 73 NY2d 487; Matter of DES Mkt. Share Litig., 79 NY2d 299; Elswick v Nichols, 144 F Supp 2d 758; Haggerty v Upjohn Co., 950 F Supp 1160, 158 F3d 588; Sutera v Perrier Group of Am. Inc., 986 F Supp 655; Whiting v Boston Edison Co., 891 F Supp 12; Black v Food Lion, Inc., 171 F3d 308; Glastetter v Novartis Pharms. Corp., 107 F Supp 2d 1015, 252 F3d 986.)

      Jordan and Moses, Saint Simons Island, Georgia {Randall A. Jordan and Mary Helen Moses of counsel), Louis P. Warchot, Washington, D.C., and Daniel Saphire for Association of American Railroads, amicus curiae.
    The Court should affirm the Appellate Division’s holding that a plaintiff is required to prove dose by reliable scientific evidence. (Mancuso v Consolidated Edison Co. of N.Y., Inc., 56 F Supp 2d 391; O’Conner v Com

      monwealth Edison Co., 807 F Supp 1376, 13 F3d 1090; Claar v Burlington N. R.R. Co., 29 F3d 499; Kernan v American Dredging Co., 355 US 426; Wills v Amerada Hess Corp., 379 F3d 32; Whiting v Boston Edison Co., 891 F Supp 12; Sutera v Perrier Group of Am. Inc., 986 F Supp 655; Castellow v Chevron USA, 97 F Supp 2d 780; Mitchell v Gencorp, Inc., 165 F3d 778; Wright v Willamette Indus., Inc., 91 F3d 1105.)

      National Legal Scholars Law Firm, PC., Lyme, New Hampshire (Anthony Z. Roisman of counsel), for Margaret A. Berger and others, amici curiae.
    I. The Appellate Division committed reversible error by misapplying the existing New York State Frye/Wesley standard for the admissibility of expert evidence and by impermissibly adopting the federal Daubert standard, which it also misapplied. (People v Forte, 279 NY 204; Frye v United States, 293 F 1013; People v Wesley, 83 NY2d 417; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; LeChase Data/Telecom Servs., LLC v Goebert, 6 NY3d 281; Speller v Sears, Roebuck & Co., 100 NY2d 38; In re Joint E. & S. Dist. Asbestos Litig., 52 F3d 1124; Atkins v Virginia, 536 US 304; Amorgianos v National R.R. Passenger Corp., 303 F3d 256; Marmo v IBP, Inc., 360 F Supp 2d 1019.) II. The Appellate Division erred in granting summary judgment because it weighed the evidence and failed to give the appropriate deference to the substantial evidence offered by plaintiff. (Diaz v New York Downtown Hosp., 99 NY2d 542; Reeves v Sanderson Plumbing Products, Inc., 530 US 133; Forrest v Jewish Guild for the Blind, 3 NY3d 295; LeChase Data/Telecom Servs., LLC v Goebert, 6 NY3d 281; Speller v Sears, Roebuck & Co., 100 NY2d 38; Buchholz v Trump 767 Fifth Ave., LLC, 5 NY3d 1; David v County of Suffolk, 1 NY3d 525.) III. Alternatively, the Appellate Division impermissibly granted summary judgment without allowing Eric Parker to fully complete discovery and present his experts’ full reports. (JMD Holding Corp. v Congress Fin. Corp., 4 NY3d 373.) IV This Court should retain the Frye/Wesley standard for admissibility, and reject the invitation to adopt the federal Daubert standard, because (a) adopting a precise exposure measurement requirement would unacceptably exacerbate the risk that toxic exposure victims will be denied access to the courts and thereby be deprived of the opportunity to obtain compensation for their injuries, (b) courts are ill-equipped to engage in the detailed scientific analyses that Daubert v Merrell Dow Pharmaceuticals, Inc. (509 US 579 [1993]) requires and (c) New York courts are too overburdened by rising caseloads and too limited in their resources to adopt Daubert and absorb the burgeoning burdens and costs that accompany the inevitably proliferating Daubert motions and Daubert hearings. (Zito v Zabarsky, 28 AD3d 42; People v Campbell, 97 NY2d 532; Ferebee v Chevron Chem. Co., 736 F2d 1529, 469 US 1062; Daubert v Merrell Dow Pharms., Inc., 43 F3d 1311; Cortes-Irizarry v Corporacion Insular De Seguros, 111 F3d 184; Padillas v Stork-Gamco, Inc., 186 F3d 412.)
   OPINION OF THE COURT

ClPARICK, J.

Plaintiff Eric Parker commenced this action in 1999 against Mobil Oil Corporation, Island Transportation Corporation and Getty Petroleum Marketing, Inc., alleging that exposure to benzene in gasoline caused him to develop acute myelogenous leukemia (AML). Parker had worked as a gas station attendant for 17 years and had been exposed to benzene through inhalation of gasoline fumes and through dermal contact with gasoline. There is no dispute that benzene is a known carcinogen.

Parker worked at several full-service stations between March 1981 and August 1998. As part of his duties, he pumped gasoline for customers, exposing him to gasoline vapors; the pumps were not fitted with vapor recovery systems to reduce exposure to fumes until the early 1990s. He was also exposed to fumes upon receipt of deliveries of gasoline and upon daily gauging of gasoline levels in the tanks and he was responsible for cleaning up gasoline spills, occasioning it to remain on his hands and clothing throughout the day. Defendants did not warn him of the dangers of benzene exposure or provide him with safety or protective gear. It should be noted that Parker was also exposed to therapeutic radiation.

Prior to the completion of discovery, and before the exchange of expert reports, defendant Mobil Oil and several third-party defendants moved to preclude Parker’s expert testimony on the issue of medical causation. Defendants argued that the expert testimony was scientifically unreliable and should be excluded under Frye v United States (293 F 1013 [DC Cir 1923]). Further, defendants moved for summary judgment dismissing all claims, arguing that they lacked the necessary support in the absence of appropriate causation evidence.

In support of the motion, defendants introduced the opinions of two experts prepared for other litigations. The first, Dr. Ger-hard K. Raabe — an epidemiologist and Director of Medical Information Health Risk Assessment for Mobil — acknowledged that there is an increased risk of AML for service station employees exposed to large amounts of benzene (“typically over 100 PPM TWA”) over an extended period of time, but concluded that the low levels of benzene exposure resulting from gasoline service station work are “below the practical threshold for the dose necessary to initiate the leukemia process.” Raabe cited to a National Institute for Occupational Safety and Health (NIOSH) study of benzene exposure for service station employees (the maximum concentration of benzene in gasoline was 2% with the greatest level of exposure 0.19 ppm TWA, which is less than the 1 ppm occupational standard set by the Occupational Safety and Health Administration [OSHA]); to a study of petroleum workers exposed to gasoline with a concentration of 2% to 3% benzene that did not show any additional risk of AML from exposure to gasoline; and to a European study of service station workers exposed to gasoline that was 3% to 5% benzene that did not find an elevated risk of AML. Defendants also provided a letter from Raabe responding to an expert opinion in another litigation citing a study he coauthored, which found an increased risk of AML for those exposed to “increasing cumulative doses of benzene above 200 ppm-years . . . [and] no excess risk for AML for doses below” that level.

Defendants also offered the affidavit of Richard D. Irons, Ph.D., a toxicologist — likewise prepared for other litigation. Irons explained that the dose-related relationship was a unifying concept in the medical sciences and a cornerstone of pharmacology and toxicology; that there is usually a threshold below which no effect can be observed; and that the evidence of an association between chronic exposure to benzene and AML became less reliable as the dosage decreased; and that there was “virtually no reliable evidence to indicate that a causal relationship exists between chronic exposure to benzene at 10 ppm or lower and the development of AML.” In order to determine causation, according to Irons, it is necessary to know the amount of benzene sufficient to cause AML and the amount of benzene to which the particular plaintiff was exposed. He noted that the plaintiffs expert in that case did not quantify the benzene exposure and did not address studies finding no increased risk of AML in service station or petroleum distribution workers. Irons also pointed out that AML has been known to develop in those who have been exposed to the drugs and chemicals used in chemotherapy.

In opposition to defendants’ motion, Parker argued that whether benzene can cause AML is not novel scientific evidence subject to Frye review, and that there is a difference of opinion in the scientific community as to what level of benzene exposure causes leukemia. To support his arguments, he produced reports from two experts. Philip J. Landrigan, M.D., a board-certified physician in occupational medicine and fellow of the American College of Epidemiology, detailed Parker’s medical history as well as his exposure to benzene as a component of gasoline. Landrigan noted that Parker had received radiation treatment for a prior illness. The doctor also observed that, during his service station employment, Parker frequently had cuts or abrasions on his hands that would have increased the absorption of benzene directly into his bloodstream. Further, there was at least one instance where Parker was doused with gasoline but continued to work in his gasoline-saturated clothing for the remainder of the day.

Landrigan cited several studies that linked benzene exposure to leukemia. He noted that a NIOSH study of rubber plant workers in Ohio found a relationship between increasing cumulative benzene exposure and leukemia mortality. He concluded that the study showed a risk of mortality from leukemia of about “150 times above background” over a 40-year working lifetime from exposure to benzene at 10 ppm. At 5 ppm, the risk was 12 times over background and at 1 ppm (or 40 ppm-years) the risk was doubled. The expert went on to explain that “[ejxtensive mathematical modeling was conducted to determine the shape of this positive dose-response relationship. These analyses found that a linear model best explained the association. No evidence was found for a threshold level below which no leukemia occurs.”

Landrigan further noted several studies that found an increased risk of leukemia in petroleum refinery workers and pointed out that the studies that did not find an increased risk of leukemia considered all refinery workers rather than specifically addressing only those exposed to benzene. He also stated that, in recognition of the carcinogenic nature of benzene, OSHA lowered the previous workplace standard from 10 ppm to 1 ppm. Landrigan found it unlikely that Parker would have contracted AML without his specific occupational exposure to benzene and therefore concluded “to a reasonable degree of medical certainty that Mr. Parker contracted his [AML] as a result of his personal occupational exposure to benzene.”

Parker also submitted a two-page report from Bernard D. Goldstein, M.D., an expert in toxicology and epidemiology. Dr. Goldstein stated that Parker had greater levels of exposure to benzene than the workers in the refinery studies, as modern refineries function within the 1 ppm workplace standard and “[g]asoline has been approximately 2% benzene (i.e., 20,000 ppm).” He also noted that although a study of British refinery workers found no increased risk of leukemia, a “nested case-control study . . . [found] more than a doubling in the likelihood that those who did die of leukemia had been exposed to higher levels of benzene than appropriate controls.” Finally, he observed that there was evidence that Parker’s medical history — having received radiation treatment — made him more susceptible to leukemia from exposure to benzene. While Gold-stein did give a number in ppm of how much benzene is in gasoline, neither of Parker’s experts quantified Parker’s exposure to benzene from gasoline.

Without conducting a Frye hearing (which neither party had requested), Supreme Court denied defendants’ motion to preclude Parker’s expert testimony. The court identified the issue as whether the causal relationship between benzene in gasoline and AML has general acceptance in the scientific community — particularly whether the experts used generally accepted principles and methodologies in arriving at their conclusions. The court recognized that Parker’s experts did not cite to studies linking AML to exposure to benzene in gasoline or quantify Parker’s exposure, but concluded that the experts distinguished the studies finding no increased risk of leukemia and that, while the failure to quantify exposure might require a hearing in some cases where there was less exposure, it was not necessary here.

Finally, the court determined that plaintiffs experts followed generally accepted principles and methodologies by detailing Parker’s exposure, demonstrating the link between benzene and leukemia and presenting a dose-response relationship of 40 ppm-years (or the theory that there is no threshold of exposure under which there will be no negative effects to health). The court also found that Landrigan “track[ed]” the process of generating an opinion on causation in toxic tort cases recommended by the World Health Organization (WHO) and National Academy of Sciences (NAS).

The Appellate Division reversed and dismissed the complaint, framing the issue as “to what extent the plaintiff was required to establish the precise level of his exposure to benzene in order to establish that his AML was caused by it through a scientifically-reliable methodology” (16 AD3d 648, 651 [2005]). The Court noted that neither of Parker’s experts quantified his exposure to benzene — in particular, neither provided a time-weighted average in parts per million. Even if the experts had established a threshold, they could not show that Parker’s exposure exceeded it, and any conclusions as to the amount of Parker’s exposure or whether the exposure caused his AML were therefore speculative.

The Court also rejected Landrigan’s position that there is no threshold below which leukemia would not occur as “the scientific reliability of th[at] methodology has flatly been rejected as merely a hypothesis” (16 AD3d at 653). The Court noted that the experts did not use the three-step process approved by the WHO/NAS and that although they used studies demonstrating a link between benzene and AML, they did not prove the causal connection between the exposure to benzene in gasoline. We now affirm.

Discussion

At issue in this case is the admissibility of Parker’s experts’ opinions. The parties dispute whether the opinions should be analyzed under Frye. The introduction of novel scientific evidence calls for a determination of its reliability. Thus, the Frye test asks “whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally” (People v Wesley, 83 NY2d 417, 422 [1994]; see also People v Wernick, 89 NY2d 111, 115-116 [1996]). Frye holds that “while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs” (Frye, 293 F at 1014). It “emphasizes ‘counting scientists’ votes, rather than on verifying the soundness of a scientific conclusion’ ” (Wesley, 83 NY2d at 439 [citation omitted] [Kaye, Ch. J., concurring]).

The Frye inquiry is separate and distinct from the admissibility question applied to all evidence — whether there is a proper foundation — to determine whether the accepted methods were appropriately employed in a particular case (Wesley, 83 NY2d at 429). “The focus moves from the general reliability concerns of Frye to the specific reliability of the procedures followed to generate the evidence proffered and whether they establish a foundation for the reception of the evidence at trial” (Wesley, 83 NY2d at 429).

Here, there is a question as to whether the methodologies employed by Parker’s experts lead to a reliable result — specifically, whether they provided a reliable causation opinion without using a dose-response relationship and without quantifying Parker’s exposure. There is no particular novel methodology at issue for which the Court needs to determine whether there is general acceptance. Thus, the inquiry here is more akin to whether there is an appropriate foundation for the experts’ opinions, rather than whether the opinions are admissible under Frye.

As with any other type of expert evidence, we recognize the danger in allowing unreliable or speculative information (or “junk science”) to go before the jury with the weight of an impressively credentialed expert behind it. But, it is similarly inappropriate to set an insurmountable standard that would effectively deprive toxic tort plaintiffs of their day in court. It is necessary to find a balance between these two extremes.

One problem with establishing causation in toxic tort cases is that, often, a plaintiffs exposure to a toxin will be difficult or impossible to quantify by pinpointing an exact numerical value. Here, for example, defendants did not monitor the level of benzene in the air at the service stations. Nor were they required to do so by law or regulation. Further complicating the process of arriving at a specific quantification in this case is that a significant portion of Parker’s benzene exposure was through dermal contact — a factor that would not be addressed in the air-based ppm-years standard.

It is well-established that an opinion on causation should set forth a plaintiffs exposure to a toxin, that the toxin is capable of causing the particular illness (general causation) and that plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation) (see e.g. McClain v Metabolife Intl., Inc., 401 F3d 1233, 1241 [11th Cir 2005]; Wright v Willamette Indus., Inc., 91 F3d 1105, 1106 [8th Cir 1996]). Where we depart from the Appellate Division is that we find it is not always necessary for a plaintiff to quantify exposure levels precisely or use the dose-response relationship, provided that whatever methods an expert uses to establish causation are generally accepted in the scientific community.

The argument that precise quantification is not necessary finds support in case law from other jurisdictions. For example, the Fourth Circuit has noted that

“while precise information concerning the exposure necessary to cause specific harm to humans and exact details pertaining to the plaintiffs exposure are beneficial, such evidence is not always available, or necessary, to demonstrate that a substance is toxic to humans given substantial exposure and need not invariably provide the basis for an expert’s opinion on causation” (Westberry v Gislaved Gummi AB, 178 F3d 257, 264 [4th Cir 1999]; see also Heller v Shaw Indus., Inc., 167 F3d 146, 157 [3d Cir 1999]; Hardyman v Norfolk & W. Ry. Co., 243 F3d 255, 265-266 [6th Cir 2001]).

Some cases requiring an expert to establish the dosage at which a substance is toxic and the amount of exposure a plaintiff actually experienced also appear to recognize that an exact number may not be necessary (see Wright, 91 F3d at 1107 [“We do not require a mathematically precise table equating levels of exposure with levels of harm, but there must be evidence from which a reasonable person could conclude that a defendant’s emission has probably caused a particular plaintiff the kind of harm of which he or she complains”]; McClain, 401 F3d at 1241 n 6).

There could be several other ways an expert might demonstrate causation. For instance, amici note that the intensity of exposure to benzene may be more important than a cumulative dose for determining the risk of developing leukemia. Moreover, exposure can be estimated through the use of mathematical modeling by taking a plaintiffs work history into account to estimate the exposure to a toxin. It is also possible that more qualitative means could be used to express a plaintiffs exposure. Comparison to the exposure levels of subjects of other studies could be helpful provided that the expert made a specific comparison sufficient to show how the plaintiffs exposure level related to those of the other subjects. These, along with others, could be potentially acceptable ways to demonstrate causation if they were found to be generally accepted as reliable in the scientific community.

Turning to the opinions offered by Parker’s experts, although we reject the Appellate Division’s requirement that the amount of exposure need be quantified exactly, we nonetheless conclude that the Appellate Division properly precluded them and properly deemed them insufficient to defeat summary judgment. The experts, although undoubtedly highly qualified in their respective fields, failed to demonstrate that exposure to benzene as a component of gasoline caused Parker’s AML. Dr. Goldstein’s general, subjective and conclusory assertion — based on Parker’s deposition testimony — that Parker had “far more exposure to benzene than did the refinery workers in the epidemiological studies” is plainly insufficient to establish causation. It neither states the level of the refinery workers’ exposure, nor specifies how Parker’s exposure exceeded it, thus lacking in epidemiologic evidence to support the claim.

Dr. Landrigan’s submissions were likewise insufficient. He reported that Parker was “frequently” exposed to “excessive” amounts of gasoline and had “extensive exposures ... in both liquid and vapor form,” which — even given that an expert is not required to pinpoint exposure with complete precision — cannot be characterized as a scientific expression of Parker’s exposure level. Moreover, Landrigan concentrates on the relationship between exposure to benzene and the risk of developing AML — an association that is not in dispute. Key to this litigation is the relationship, if any, between exposure to gasoline containing benzene as a component and AML. Landrigan fails to make this connection perhaps because, as defendants claim, no significant association has been found between gasoline exposure and AML. Plaintiffs experts were unable to identify a single epidemiologic study finding an increased risk of AML as a result of exposure to gasoline. In addition, standards promulgated by regulatory agencies as protective measures are inadequate to demonstrate legal causation. Thus, the experts’ opinions were properly excluded.

Parker’s remaining contentions are without merit.

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

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

Order affirmed, with costs.

      . PPM means parts per million — here, 100 parts benzene per one million parts of air. The TWA, or time-weighted average, is the average amount of a substance to which an individual is exposed over an eight-hour work shift. This measurement can also be expressed in ppm-years.

      . Those steps are: (1) determining the plaintiffs exposure to the particular toxin; (2) general causation, which is proof that the toxin in question can in fact cause the illness, and the amount of exposure required to cause the illness (the dose-response relationship); and (3) specific causation — meaning the likelihood that plaintiffs illness was caused by the toxin, including eliminating other potential causes of the disease (see Mancuso v Consolidated Edison Co. of N.Y., Inc., 56 F Supp 2d 391, 399 [SD NY 1999]).

      . Although some amici urge the Court to adopt the federal standard (or some portions of it) as expressed in Daubert v Merrell Dow Pharmaceuticals, Inc. (509 US 579, 589-590 [1993] [requiring that scientific testimony he relevant and reliable in order to assist the trier of fact under Federal Rules of Evidence rule 702]), the parties make no such argument and acknowledge that Frye is the current standard in New York.

      . We recognize that these cases employ a Daubert analysis. However, they are instructive to the extent that they address the reliability of an expert’s methodology.


source: Caselaw Access Project

author: Rosenblatt, J.

license: Public Domain

text:
    [857 NE2d 510, 824 NYS2d 189]
    In the Matter of Astoria Gas Turbine Power, LLC, Respondent, v Tax Commission of City of New York et al., Appellants.
    Argued September 6, 2006;
    decided October 17, 2006

      POINTS OF COUNSEL

      Michael A. Cardozo, Corporation Counsel, New York City (Paul T. Rephen, Rita D. Dumain and Rochelle Cohen of counsel), for appellant.
    The divestiture by Consolidated Edison Company of New York of two thirds of its power generating equipment to electric corporations, such as petitioner, that are not rate-regulated does not affect that property’s real property tax classification. Petitioner has remained subject to the supervision of the Public Service Commission within the meaning of RPTL 1801 (c). Further, the Legislature intended that these type of generators be in class three regardless of the business environment of their owner. (Matter of Hellerstein v Assessor of Town of Islip, 37 NY2d 1; New York Steam Corp. v City of New York, 268 NY 137; New York Rapid Transit Corp. v New York City, 303 US 573; Matter of Caplan v Commissioner of Fin. of City of N.Y., 220 AD2d 324; AT&T Info. Sys. v City of New York, 137 AD2d 7, 73 NY2d 842; Matter of Grace v New York State Tax Commn., 37 NY2d 193; Matter of Spencer v Board of Educ. of City of Schenectady, 39 AD2d 399; Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d 669; Matter of

      Occidental Chem. Corp. v Public Serv. Commn. of State of N.Y., 114 AD2d 149; Foss v City of Rochester, 65 NY2d 247.)

      David M. Wise, Cranford, New Jersey, and Babylon, for respondent.
    I. The Second Department applied the correct “pure statutory construction” standard of review. (Matter of Caplan v Commissioner of Fin. of City of N.Y., 220 AD2d 324; Lorillard Tobacco Co. v Roth, 99 NY2d 316; Matter of New York State Assn. of Life Underwriters v New York State Banking Dept., 83 NY2d 353; American Locker Co. v City of New York, 308 NY 264; Smith v Browning, 225 NY 358; Matter of New York Cent. R.R. Co. v Flynn, 233 App Div 123, 257 NY 553; Matter of Sheppard, 189 App Div 370; Cable & Wireless v City of N.Y. Dept. of Fin., 190 Misc 2d 410, 302 AD2d 1020; Matter of Holmes Elec. Protective Co. v McGoldrick, 262 App Div 514, 288 NY 635; Matter of Merchants Refrig. Co. v Taylor, 275 NY 113.) II. The Second Department correctly construed the subject-to clause at RPTL 1801 (c) as requiring traditional utility rate regulation. (People v Duggins, 3 NY3d 522; Matter of Rodriguez v Perales, 86 NY2d 361; Matter of 320 W. 37th St. Inc. v McGoldrick, 281 NY 132; New York Steam Corp. v City of New York, 268 NY 137; Cable & Wireless v City of N.Y. Dept. of Fin., 190 Misc 2d 410, 302 AD2d 1020.) III. Astoria Gas Turbine Power, LLC is not “subject to the supervision” within the accepted meaning of the clause. (New York v FERC, 535 US 1; AT&T Info. Sys. v City of New York, 137 AD2d 7, 73 NY2d 842; Matter of 436 W. 34th St. Corp. v McGoldrick, 288 NY 346.) IV The City of New York’s remaining arguments against enforcing the subject-to clause at RPTL 1801 (c) lack merit. (City of Buffalo v Cargill, Inc., 44 NY2d 7; Matter of Crystal v City of Syracuse, Dept. of Assessment, 47 AD2d 29, 38 NY2d 883; Matter of Greentree At Lynbrook Condominium No. 1 v Board of Assessors of Vil. of Lynbrook, 81 NY2d 1036; Matter of White Plains Props. Corp. v Tax Assessor of City of White Plains, 71 AD2d 677, 50 NY2d 839; New York Tel. Co. v Nassau County, 1 NY3d 485; AT&T Info. Sys. v City of New York, 137 AD2d 7, 73 NY2d 842; New York Steam Corp. v City of New York, 268 NY 137; Consolidated Edison Co. of N.Y. v City of New York, 80 NY2d 794.)
   OPINION OF THE COURT

Rosenblatt, J.

Pursuant to article 18 of the Real Property Tax Law, real property located in a special assessing unit is classified in a way that affects the owner’s tax liability. Astoria Gas Turbine Power, LLC (AGTP) brought this RPTL article 7 proceeding challenging the classification of its power plant equipment as “utility real property” falling within class three of RPTL 1802 (1). AGTP contends that the equipment should be treated as class-four, general commercial real property. Equipment is properly designated class-three property if it belongs to “persons and corporations subject to the supervision of the state department of public service” (RPTL 1801 [c]). We conclude that because AGTP is not subject to such supervision, its equipment should be classified as class-four property.

I.

During the past three decades, both Congress and the New York State Legislature have sought to deregulate the electric utility industry. In 1996, aiming to lower consumer costs, encourage economic development, and continue safe and reliable service, the New York State Public Service Commission (PSC) ordered a restructuring of the industry (see Re Competitive Opportunities Regarding Elec. Serv., 1996 NY PSC Op No. 96-12, 168 PUR4th 515). Two years later, in accordance with that order, the PSC conditionally approved the plan of Consolidated Edison Company of New York (Con Ed) to divest its New York City electric generating fossil-fueled capacity to unregulated entities (see Re Consolidated Edison Co. of N.Y., Inc., 1998 NY PSC Case 96-E-0897, 188 PUR4th 149).

In 1999, Con Ed transferred its 614-megawatt Astoria Gas Turbines in Astoria, Queens (the equipment) to AGTP’s parent company, NRG Energy Inc. For tax year 2001-2002 — the period in issue — the Department of Finance of the City of New York (DOF) classified the equipment as class-three “utility real property.” Claiming that its property was misclassified, AGTP brought this proceeding against DOF and the Tax Commission of the City of New York (collectively, the City). Both sides sought partial summary judgment. Supreme Court ruled with the City, concluding that its classification of the property was correct. The Appellate Division reversed, granted AGTP’s motion and directed the City to reclassify the equipment as class-four property on the 2001-2002 assessment roll. We now affirm.

II.

The City contends that RPTL 1802 (1) and 1801 (c) contemplate a classification system based on the character of the property itself. At the threshold, we note that the proper classification of the equipment implicates a pure statutory analysis of RPTL 1802 (1) and 1801 (c), and we need not defer to the City’s determination (see Lorillard Tobacco Co. v Roth, 99 NY2d 316, 322 [2003]). Because classification of commercial property hinges on whether a company is “subject to the supervision of the state department of public service” (RPTL 1801 [c]), we conclude that the Legislature intended classification to depend on the nature of the enterprise, and not the nature of the property.

The issue turns on AGTP’s relationship with the PSC. In exchange for compliance with strict regulation by the PSC, traditional public utilities are generally afforded certain economic advantages. For instance, public utilities have historically exercised monopoly power, protecting them against competition. In addition, public utilities typically are afforded governmental franchises permitting them to place equipment on public rights-of-way or otherwise use public land. Given public utilities’ competitive and financial advantages, the PSC establishes rates at which they can sell their product.

In fixing a public utility’s classification for tax purposes, RPTL 1802 (1) and 1801 (c) take into account that the public utility is virtually guaranteed to earn a reasonable rate of return. In light of the economic advantages afforded to public utilities, New York’s tax scheme has treated them differently than other types of entities. Thus, the language “subject to the supervision of the state department of public service” has been used repeatedly in this State’s tax statutes to distinguish between noncompetitive public utilities and other market-driven business organizations (see New York Steam Corp. v City of New York, 268 NY 137, 147 [1935]; Cable & Wireless v City of N.Y. Dept. of Fin., 190 Misc 2d 410, 416 [Sup Ct, NY County 2001]).

Here, the PSC maintains “light regulation” over AGTP covering “matters such as enforcement, investigation, safety, reliability and system improvement” (Re Consolidated Edison Co. of N.Y., Inc.’s Plans, 1999 NY PSC Case 96-E-0897, 1999 WL 716539, *16, 1999 NY PUC LEXIS 383, *47). This light regulation also gives the PSC authority to limit AGTP’s power in the market and any actions that contravene the public interest.

As against these few exceptions, however, AGTP is exempt from the vast majority of the provisions of the Public Service Law that apply to retail sellers of electricity. Most importantly, the PSC does not establish rates in AGTP’s wholesale electricity generation market. As the Appellate Division aptly noted, the PSC’s reserved authority over market power issues does “not involve the intense rate supervision imposed upon traditional electric utilities by the PSC.”

Because AGTP is subject to lightened governmental regulation, it cannot be considered a public utility, and should not be classified like one under RPTL 1802 (1). Unlike a utility, AGTP is not assured a reasonable rate of return, but is at the mercy of volatile competitive market forces based on supply and demand. Further, AGTP possesses no governmental franchises or property interests in public streets. Thus, in conformance with the Legislature’s initiative to deregulate the electric utility industry, AGTP is a competitive entity like those whose real property is properly placed in class four.

In short, the PSC’s regulation of AGTP is insubstantial when compared to a public utility’s and does not subject the company to the “supervision of the state department of public service” as contemplated by the Legislature. As a result, the equipment should be designated class-four property.

Accordingly, the judgment appealed from and order of the Appellate Division brought up for review should be affirmed, with costs.

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

Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs.

      . This Appellate Division order is brought up for review by the City’s appeal from Supreme Court’s subsequent amended judgment.

      . Pursuant to PSC order, AGTP is subject to certain market mitigation measures such as price caps. The measures are designed to prevent market-power abuse during the transition to a fully competitive market but do not function as price controls such as those historically imposed on traditional public utilities (see Re Consolidated Edison Co. of N.Y., Inc., 1998 NY PSC Case 96-E-0897, 188 PUR4th 149; Re Consolidated Edison Co. of N.Y., Inc.’s Plans, 1999 NY PSC Case 96-E-0897, 1999 WL 716539, 1999 NY PUC LEXIS 383).

      . AGTP is exempt from the provisions of Public Service Law articles 1 (“The Department of Public Service”), 2 (“Residential Gas, Electric and Steam Utility Service”), 4 (“Provisions Relating to Gas and Electric Corporations; Regulation of Price of Gas and Electricity”), and 6 (“Provisions Affecting Two or More Kinds of the Public Service and the Persons and Corporations Furnishing Such Service”) “that adhere, by their terms, to the retail sale of electricity” (Re Consolidated Edison Co. of N.Y., Inc.’s Plans, 1999 NY PSC Case 96-E-0897, 1999 WL 716539, *15, 1999 NY PUC LEXIS 383, *45).

      . Matter of Astoria Gas Turbine Power, LLC v Tax Commn. of City of N.Y. (14 AD3d 553, 558 [2d Dept 2005], citing AT&T Info. Sys. v City of New York, 137 AD2d 7 [1st Dept 1988], affd for reasons stated in op by Rosenberger, J., at App Div 73 NY2d 842 [1988]).


author: Graffeo, J.

text:
    [857 NE2d 1108, 824 NYS2d 577]
    In the Matter of Professional Staff Congress-City University of New York, Respondent, v New York State Public Employment Relations Board et al., Appellants.
    Argued September 6, 2006;
    decided October 17, 2006

      POINTS OF COUNSEL

      Sandra M. Nathan, Albany, and William L Busier for New York State Public Employment Relations Board, appellant.
    I. The Taylor Law’s collective bargaining system rests on mutual rights and obligations of employers and unions. (Board of Educ. for City School Dist. of City of Buffalo v Buffalo Teachers Fedn., 89 NY2d 370; Matter of Uniform Firefighters of Cohoes, Local 2562, IAFF, AFL-CIO v Cuevas, 276 AD2d 184, 96 NY2d 711; Matter of Town of Southampton v New York State Pub. Empl. Relations Bd., 2 NY3d 513.) II. The Public Employment Relations Board’s decision that Civil Service Law § 209-a (1) (e) continues the collective bargaining agreement article 2 waiver as part of the status quo in effect during the Triborough period is rational and advances the policies of the Taylor Law. III. The Appellate Division’s decision that Civil Service Law § 209-a (1) (e) did not continue the collective bargaining agreement article 2 waiver as part of the status quo in effect during the relevant Triborough periods is in error. (Matter of Rosen v Public Empl. Relations Bd., 72 NY2d 42; Matter of Town of Southampton v New York State Pub. Empl. Relations Bd., 2 NY3d 513; Matter of Uniform Firefighters of Cohoes, Local 2562, IAFF, AFL-CIO v Cuevas, 276 AD2d 184; People v Santi, 3 NY3d 234; Riley v County of Broome, 95 NY2d 455; Matter of New York City Tr. Auth. v State of N.Y., Pub. Empl. Relations Bd., 232 AD2d 492; Association of Surrogates & Supreme Ct. Reporters Within City of N.Y. v State of New York, 79 NY2d 39; Matter of Roma v Ruffo, 92 NY2d 489; Matter of Cobleskill Cent. School Dist. v Newman, 105 AD2d 564, 64 NY2d 610.) IV The Appellate Division’s decision disrupts the mutuality that is essential to the Taylor Law’s collective bargaining system and thereby undermines the Legislature’s goal of harmonious and cooperative labor relations. (Antinore v State of New York, 49 AD2d 6, 40 NY2d 921.)

      Eliot Spitzer, Attorney General, New York City (Robert Easton, Richard Dearing, Caitlin Halligan and Jean Lin of counsel), Frederick P. Schaffer and Katherine Raymond for City University of New York, appellant.
    I. The Appellate Division erred in failing to defer to the Public Employment Relations Board’s determination that a waiver of bargaining rights, like all other terms of an expired collective bargaining agreement, continues in effect during the status quo period. (Matter of Incorporated Vil. of Lynbrook v New York State Pub. Empl. Relations Bd., 48 NY2d 398; Matter of Lippman v Public Empl. Relations Bd., 263 AD2d 891; Matter of Milonas v Public Empl. Relations Bd., 225 AD2d 57; 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 Village of Fairport v Newman, 90 AD2d 293; Matter of Town of Southampton v New York State Pub. Empl. Relations Bd., 2 NY3d 513; Association of Surrogates & Supreme Ct. Reporters within City of N.Y. v State of New York, 78 NY2d 143; Matter of New York City Tr. Auth. v State of N.Y., Pub. Empl. Relations Bd., 232 AD2d 492.) II. The Appellate Division’s decision, if affirmed, would undermine the overarching purposes of the Taylor Law and frustrate the legitimate expectations of public employers that employees have a reciprocal obligation to maintain the status quo. (Matter of Town of Southampton v New York State Pub. Empl. Relations Bd., 2 NY3d 513; Board of Educ. for City School Dist. of City of Buffalo v Buffalo Teachers Fedn., 89 NY2d 370.)

      Schwartz, Lichten & Bright, PC., New York City (Stuart Lichten of counsel), for respondent.
    I. The Appellate Division correctly set aside the Public Employment Relations Board’s determination. (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 City School Dist. of City of Elmira v New York State Pub. Empl. Relations Bd., 74 NY2d 395; Matter of Town of Mamaroneck PBA v New York State Pub. Empl. Relations Bd., 66 NY2d 722; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Matter of Incorporated Vil. of Lynbrook v New York State Pub. Empl. Relations Bd., 48 NY2d 398; Matter of City of Mount Vernon v Cuevas, 289 AD2d 674, 97 NY2d 613; Matter of Patrolmen’s Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d 563; 805 Third Ave. Co. v M.W. Realty Assoc., 58 NY2d 447; Non-Linear Trading Co. v Braddis Assoc., 243 AD2d 107.) II. Article 2.4 of the collective bargaining agreement is not a waiver. (Nagel v D

      & R Realty Corp., 99 NY2d 98; Macchirole v Giamboi, 97 NY2d 147; Metropolitan Edison Co. v NLRB, 460 US 693; Matter of Civil Serv. Empls. Assn. v Newman, 88 AD2d 685; Matter of Board of Coop. Educ. Servs. Sole Supervisory Dist., Onondaga & Madison Counties v New York State Pub. Empl. Relations Bd., 82 AD2d 691.)

      James R. Sandner, Latham, and Marilyn S. Dymond for New York State United Teachers, amicus curiae.
    I. The Appellate Division’s reversal of the Public Employment Relations Board’s (PERB) decision should be upheld, because PERB’s ruling undermines the stability of the collective bargaining process. (Matter of Town of Southampton v New York State Pub. Empl. Relations Bd., 2 NY3d 513.) II. The Appellate Division’s reversal of the Public Employment Relations Board’s (PERB) decision should be upheld, because PERB’s ruling is contrary to public policy and inconsistent with its own precedent. (Matter of Uniform Firefighters of Cohoes, Local 2562, IAFF, AFL-CIO v Cuevas, 276 AD2d 184, 96 NY2d 711; Matter of New York City Tr. Auth. v State of N.Y., Pub. Empl. Relations Bd., 232 AD2d 492.) III. The Appellate Division’s reversal of the Public Employment Relations Board’s (PERB) decision should be upheld, because PERB’s ruling is not defensible on the proffered ground of “mutuality.”

      Greenberg Burzichelli & Greenberg PC., Lake Success {Harry Greenberg of counsel), Eddie M. Demmings, New York City, and Mary J. O’Connell for Municipal Labor Committee, amicus curiae.
    I. The Triborough doctrine does not extend a union’s bargaining waiver post-contract expiration. II. A waiver to bargain cannot be given Triborough effect. (Matter of Patrolmen’s Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d 563; Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774; Matter of City of Watertown v State of N.Y. Pub. Empl. Relations Bd., 95 NY2d 73; Matter of Board of Educ. of City School Dist. of City of N.Y. v New York State Pub. Empl. Relations Bd., 75 NY2d 660.)

      Michael A. Cardozo, Corporation Counsel, New York City {Georgia Pestaña of counsel), for City of New York, amicus curiae.
    The Triborough amendment imposes reciprocal obligations on public employers and unions to maintain the status quo between the expiration of a collective bargaining agreement and the execution of a successor agreement. (Association of Surrogates & Supreme Ct. Reporters within City of N.Y. v State of

      New York, 78 NY2d 143; Matter of ATM One v Landaverde, 2 NY3d 472; Matter of Tompkins County Support Collection Unit v Chamberlin, 99 NY2d 328; Riley v County of Broome, 95 NY2d 455; Matter of Pirro v Angiolillo, 89 NY2d 351; People v Santi, 3 NY3d 234; Williams v Williams, 23 NY2d 592; Matter of New York State Assn. of Criminal Defense Lawyers v Kaye, 96 NY2d 512; Association of Surrogates & Supreme Ct. Reporters Within City of N.Y. v State of New York, 79 NY2d 39; Matter of Town of Southampton v New York State Pub. Empl. Relations Bd., 2 NY3d 513.)
   OPINION OF THE COURT

Graffeo, J.

In this CPLR article 78 proceeding, the issue is whether the Public Employment Relations Board (PERB) abused its discretion when, in dismissing an improper practice charge brought by a union, it concluded that the union’s waiver of the right to negotiate certain subjects remained in effect after expiration of the parties’ collective bargaining agreement.

Petitioner Professional Staff Congress (PSC) is the certified collective bargaining representative of approximately 17,000 instructional and administrative employees of respondent City University of New York (CUNY). PSC and CUNY entered into their first collective bargaining agreement (CBA) in 1973 and have had a succession of agreements since then. In 1972, before the first CBA with PSC, CUNY adopted an intellectual property policy addressing ownership of copyrights and patents, the payment of royalties and other issues related to intellectual property developed by CUNY employees. This policy, with revisions, remained in effect until November 2002. The intellectual property policy was never a subject of collective bargaining between PSC and CUNY, nor was it ever incorporated into any of the parties’ CBAs.

After the 1996-2000 CBA expired and while the parties were negotiating a new agreement, CUNY began the process of amending its intellectual property policy. In response, in June 2001 PSC demanded negotiation concerning the intellectual property policy. CUNY declined to address the policy in collective bargaining, asserting that article 2 of the expired CBA constituted a waiver by the union of the right to negotiate particular items, including the intellectual property policy. Article 2 has been a component of the parties’ agreements since the first CBA in 1973. It authorizes the CUNY Board of Trustees to alter existing bylaws or policies “respecting a term or condition of employment” after giving PSC “notice and an opportunity to consult” but without obtaining PSC’s consent, provided the Board action is not inconsistent with a term of the CBA. CUNY maintained that article 2 allows the CUNY Board of Trustees to change bylaws and policies that relate to matters not addressed in the CBA, such as the intellectual property policy, without negotiating with PSC. Relying on the principle that terms of an expired CBA continue after expiration of the agreement while the parties are negotiating a successor, CUNY contended that the article 2 waiver remained in effect during negotiations for a successor agreement and precluded the union from demanding that CUNY collectively bargain modifications to the intellectual property policy.

In November 2001, the union filed an improper practice charge with PERB, claiming that CUNY’s refusal to negotiate modifications to the intellectual property policy was an improper practice under Civil Service Law § 209-a (1) (d), a Taylor Law provision that requires the parties to negotiate in good faith. The charge was not resolved at that time, however, because the parties reached agreement on a new CBA covering August 2000 to October 2002. Prior to executing the new contract, PSC withdrew its proposal concerning the intellectual property policy along with all of its other outstanding bargaining demands. The new CBA carried article 2 forward from the prior contract unchanged.

Just before the 2000-2002 CBA was to expire, PSC sent a letter to CUNY demanding that the parties begin collective bargaining for the successor agreement by discussing the intellectual property policy. At that time, CUNY was close to completing its procedure for unilateral alteration of the policy but had yet to formally adopt the revised policy. CUNY responded by again referencing article 2 of the CBA, submitting that it constituted a waiver by the union of the right to collectively bargain changes to the intellectual property policy. PSC maintained that it had not waived collective bargaining rights in article 2.

When CUNY adopted the new intellectual property policy in November 2002, PSC filed an amended improper practice charge reasserting the claims previously filed with PERB. After a hearing, the Administrative Law Judge (ALJ) agreed with CUNY that the union waived its right to negotiate concerning the intellectual property policy in article 2 of the CBA. But the ALJ held that the waiver expired when the CBA expired, reasoning that any other interpretation of the contract would result in a waiver of rights “in perpetuity,” an outcome that would be contrary to the policies underlying the Taylor Law. As such, the ALJ found that CUNY’s refusal to collectively bargain the intellectual property policy after expiration of the CBA amounted to an improper practice.

Both parties pursued administrative appeals to PERB, which modified the holding of the ALJ. PERB upheld the ALJ’s interpretation of article 2 that the union had clearly and unambiguously waived the right to negotiate certain subjects, including the intellectual property policy. But PERB disagreed with the ALJ on the duration of the waiver, concluding that the waiver remained in effect after expiration of the CBA. PERB noted that, under Civil Service Law § 209-a (1) (e), known as the Triborough amendment, all terms of a collective bargaining agreement are deemed to continue after expiration of a CBA. It therefore determined that both parties are obligated to comply with the CBA and maintain the “status quo” while a new agreement is being negotiated. Finding that the article 2 waiver was part of the status quo for these parties and that it relieved CUNY of the obligation to collectively bargain its intellectual property policy, PERB dismissed PSC’s improper practice charge.

In this article 78 proceeding commenced by PSC challenging PERB’s ruling, the Appellate Division granted PSC relief by annulling PERB’s determination and holding that CUNY had committed an improper practice when it refused to negotiate the intellectual property policy. First, the Appellate Division reasoned that bargaining waivers should not be interpreted to survive a CBA absent an express provision to that effect. Second, because Civil Service Law § 209-a (1) (e) requires employers to continue all the terms of an expired collective bargaining agreement but does not address the obligations of employees, the Appellate Division concluded that no reciprocal duty is imposed on employees. The Court therefore held that the article 2 waiver did not continue after expiration of the CBA and CUNY could not rely on it to justify its refusal to collectively bargain the terms of the intellectual property policy. We granted CUNY and PERB leave to appeal and we now reverse and reinstate PERB’s determination.

The resolution of an improper practice charge is generally a matter within PERB’s sound discretion (see Matter of Poughkeepsie Professional Firefighters’ Assn., Local 596, IAFF, AFL-CIO-CLC v New York State Pub. Empl. Relations Bd., 6 NY3d 514 [2006]). We also defer to PERB’s special knowledge and expertise in determining what constitutes the “status quo” that the parties must maintain after expiration of a collective bargaining agreement (see Matter of Town of Southampton v New York State Pub. Empl. Relations Bd., 2 NY3d 513 [2004]). The determination in this case implicated PERB’s discretionary authority in both areas.

PSC alleged that CUNY committed an improper practice by refusing to negotiate in good faith, as required by Civil Service Law § 209-a (1) (d). PERB’s denial of the improper practice charge turned on its finding that the union waived its right to demand bargaining concerning the intellectual property policy in article 2 of the expired CBA. “A waiver is the intentional relinquishment of a known right with both knowledge of its existence and an intention to relinquish it ... . Such a waiver must be clear, unmistakable and without ambiguity” (Matter of Civil Serv. Empls. Assn. v Newman, 88 AD2d 685, 686 [3d Dept 1982] [internal quotation marks and citation omitted], affd for reasons stated 61 NY2d 1001 [1984]; see Matter of Board of Coop. Educ. Servs. Sole Supervisory Dist., Onondaga & Madison Counties v New York State Pub. Empl. Relations Bd., 82 AD2d 691 [3d Dept 1981]).

Here, in assessing whether there was a waiver, PERB began by analyzing the language in article 2 of the CBA, which specifically grants CUNY the right to make unilateral decisions concerning the alteration of “Bylaws, policies and resolutions . . . respecting a term or condition of employment,” provided that the alteration does not “conflict[ ] with a stated term” of the CBA and CUNY has complied with specified notice and consultation procedures. Because the provision explicitly refers to “terms and conditions of employment” and is not confined to management prerogatives, it is evident that the clause is more than a boilerplate management rights clause. Further, article 2 states that “PSC’s consent to the Board’s action shall not be required prior to such action being taken or becoming effective, unless the Board action shall be inconsistent with a stated term of this Agreement.”

The intellectual property policy, first adopted by CUNY in 1972, fell squarely within the purview of article 2 since it was never made part of the CBAs between PSC and CUNY and its alteration did not conflict with any term of the CBA. CUNY was therefore not required under the CBA to obtain the union’s consent to any change in the intellectual property policy, nor was it obligated to negotiate modification of the policy with the union. Under the circumstances, PERB reasonably interpreted article 2 as a waiver by PSC of its right to demand negotiation concerning matters not addressed in the CBA, including the intellectual property policy.

The issue therefore distills to whether the article 2 waiver remained in effect after expiration of the CBA. PERB’s conclusion that it did was based, in part, on Civil Service Law § 209-a (1) (e), which requires an employer to continue all the terms of an expired CBA while a new agreement is being negotiated. This mandate was added to the Taylor Law in 1982 (see L 1982, ch 868). Even prior to the amendment, however, PERB required that employers continue the “terms and conditions” of employment after expiration of a CBA, thereby maintaining the “status quo” during collective bargaining of a new agreement. Under this PERB policy, referred to as the Triborough doctrine because it was first articulated in a 1972 PERB determination entitled Matter of Triborough Bridge & Tunnel Auth. (District Council 37 & Local 1396) (5 PERB 11 3037 [1972]), terms and conditions of employment were carried forward, regardless of whether they had been embodied in a CBA. PERB interpreted the Taylor Law as imposing reciprocal obligations, taking the view that “[t]he duty to maintain the status quo devolves not only upon the public employer, but also upon the employee organization” (Matter of Livingston, Steuben, Wyoming BOCES [Livingston, Steuben, Wyoming BOCES Teachers Assn.], 8 PERB ¶ 3019, at 3028 [1975], determination annulled on different grounds in Matter of Board of Coop. Educ. Servs. of Rockland County v New York State Pub. Empl. Relations Bd., 41 NY2d 753 [1977]). In cases in which members of a bargaining unit changed the status quo after expiration of a CBA PERB has concluded that the employer was free to do the same and could not be charged with an improper practice for altering terms and conditions of employment (see Matter of Somers Cent. School Dist. [Somers Faculty Assn.], 9 PERB ¶ 3061 [1976]; Matter of Village of Val. Stream [Local 342, Long Is. Pub. Serv. Empls. Union], 6 PERB ¶ 3076 [1973]).

With the enactment of Civil Service Law § 209-a (1) (e), the Legislature made it “an improper practice for a public employer . . . deliberately ... to refuse to continue all the terms of an expired agreement until a new agreement is negotiated.” Thus, “[i]n 1982, the Legislature expressed its approval of the Triborough doctrine by expanding it to include not just mandatory subjects of negotiation, but all terms of a collective bargaining agreement” (Town of Southampton, 2 NY3d at 521). Although there are minor differences between the PERB policy and the Triborough amendment, both furthered the same objective: “to preserve the status quo in situations where a collective bargaining agreement between a public employer and its employees has expired and a new one has yet to be agreed upon” (Matter of Goodman [Barnard Coll. — Commissioner of Labor], 95 NY2d 15, 22 [2000]).

Civil Service Law § 209-a (1) (e) did not restrict PERB’s authority either to define the status quo or to require that both parties adhere to it. To the contrary, the legislative history of the provision indicates that it was intended “to enhance the negotiating process by preserving the status quo until a new agreement is reached by the concerned parties” and merely “enact[ed] into law what ha[d] become a standard, though not mandatory practice” (Sponsor’s Mem, Bill Jacket, L 1982, ch 868, at 7). Because some contract provisions place obligations on employees or restrict union rights, the practical effect of continuing all the terms of a CBA during the status quo period is that mutual obligations are imposed on both employers and employees — a result consistent with the statute and PERB’s long-standing application of the Triborough doctrine.

In resolving PSC’s claim that CUNY failed to negotiate in good faith in violation of Civil Service Law § 209-a (1) (d), PERB assessed whether CUNY was required to collectively bargain the intellectual property policy by reviewing the parties’ CBA, bargaining history and past practices in light of well-established PERB precedent. PERB has long held that parties can effectively prevent certain terms of a CBA from being continued after expiration of the contract under the Triborough amendment by using language that causes the term to “sunset” or expire at the conclusion of the CBA or at some other point in time (see Matter of Waterford Teachers Assn. [WaterfordHalfmoon Union Free School Dist.], 27 PERB ¶ 3070 [1994]). For example, language stating that a term will continue “until the commencement of the negotiations for a successor to this agreement” will cause the term to “sunset” at the conclusion of the CBA (see Matter of Sachem Cent. Teachers Assn. [Sachem Cent. School Dist.], 21 PERB U 3021, at 3041 [1988]). Similarly, where parties agree that the term will continue “for the life of this agreement,” they indicate an intent that it will not be continued after the agreement expires (see Matter of Police Benevolent Assn. of Police Dept. of County of Nassau [County of Nassau (Nassau County Police Dept.)], 30 PERB 1i 4717, at 5013 [1997]).

Here, PSC and CUNY knew how to include a sunset clause in a contractual provision that they did not wish to carry into the status quo period as they had inserted such clauses in prior agreements. For example, article 40 of the 1996-2000 agreement states: “This provision will sunset on July 30, 2000, unless renewed by the parties” (the 1996-2000 CBA expired on July 31, 2000). The fact that there is no “sunset” language in article 2 suggests that the parties intended the waiver provision to remain in effect after expiration of the CBA. And nothing in the parties’ past practices or bargaining history indicates a contrary intent. More than 25 years elapsed without PSC’s demanding collective bargaining on the intellectual property issue and during that period CUNY had previously amended the policy under the notice and consultation procedures set forth in article 2 without objection by PSC.

Since CUNY was required under Civil Service Law § 209-a (1) (e) to continue the terms of the expired CBA, PERB reasonably concluded that CUNY’s continuation of article 2 was not an improper practice. In other words, PERB appropriately exercised its discretion to define the status quo for these parties, finding that the article 2 waiver continued in effect during the status quo period — a determination that is entitled to “great deference” (Town of Southampton, 2 NY3d at 520).

The rule espoused by PSC — that a waiver provision should be deemed to expire at the conclusion of the CBA unless the parties include language indicating otherwise — is inconsistent with PERB precedent as well as Civil Service Law § 209-a (1) (e) because, under the statute, the assumption is that all terms of a CBA remain in effect during collective bargaining of a successor agreement. The concern that continuation of such a clause after expiration of a CBA will result in a waiver “in perpetuity” is unfounded. The article 2 waiver is itself a mandatory subject of negotiation and the union is free to seek alteration or elimination of that language through the collective bargaining process. In fact, during negotiations for the 2000-2002 agreement, PSC submitted a proposal to alter article 2 but withdrew that proposal when the parties reached agreement. To pursue collective bargaining of the intellectual property policy in the future, PSC may propose that article 2 be amended to exempt the intellectual property policy from its scope or to include a sunset clause that would allow negotiation of the topic during the status quo period. Since it is subject to the give and take of collective bargaining, the article 2 waiver is no more likely than any other term of the parties’ CBA to continue in perpetuity.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the petition dismissed.

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

Order reversed, etc.

      . Article 2.4 of the CBA provides:
      “The rights, functions and powers of the Board and its officers and agents, and of the officers of CUNY, under the applicable law of the State and the Bylaws of the Board, including the Board’s right to alter or waive existing Bylaws or policies in accordance with the procedures specified in the Bylaws shall remain vested in the Board and in said officers and agents, subject to the following. . .
      “(b) The Board shall not adopt any new or amended Bylaws, policy or resolution which conflicts with a stated term of this Agreement. . .
      “(c) In the event it is proposed that a Bylaw, procedure or policy respecting a term or condition of employment of all or some of the employees covered by this Agreement be adopted, amended or rescinded by resolution of the Board, the PSC shall be given notice and an opportunity to consult in respect of said action prior to said action being taken or becoming effective, in the manner specified below . . .
      “it being understood that the PSC’s consent to the Board’s action shall not be required prior to such action being taken or becoming effective, unless the Board action shall be inconsistent with a stated term of this Agreement.”

      . PSC has not asserted that CUNY violated the notice and consultation requirements.

      . While it is true that Civil Service Law § 209-a (1) (e) makes it an improper practice for an employer to fail to continue the terms of an expired agreement but is silent as to whether it is an improper practice for a union to do so, it does not follow that Taylor Law obligations are not reciprocal. Given the structure of the Triborough amendment, it may well be that a union cannot be found to have committed an improper practice for failing to adhere to a term of an expired CBA. We need not resolve this question here because this case does not involve a charge against a union; rather, the issue was whether the employer committed an improper practice when, in declining to negotiate the intellectual property policy, it relied on a term of the expired CBA.

      . In its demands for collective bargaining concerning the intellectual property policy in 2001 and 2002, PSC did not link the intellectual property proposal with its article 2 proposal, nor did CUNY refuse to collectively bargain with respect to the article 2 proposal.


author: Chief Judge Kaye.

text:
    [857 NE2d 523, 824 NYS2d 202]
    In the Matter of Robert Gorghan, Appellant, v Patricia DeAngelis, as District Attorney of Rensselaer County, et al., Respondents.
    Argued September 5, 2006;
    decided October 19, 2006

      POINTS OF COUNSEL

      Bianco Law Office, Syracuse (Randi J. Bianco and Lucille M. Rignanese of counsel), for appellant.
    The New York Constitution’s Double Jeopardy Clause will be violated if appellant is subjected to a second trial following reversal on appeal due to the prosecutor’s deliberate tactic of engaging in pervasive and egregious misconduct during the first trial. The prosecutor persisted in engaging in this conduct, forcing the defense to lodge hundreds of objections and three motions for mistrial, and forcing the court to admonish the prosecutor for her conduct numerous times. (People v P.J. Video, 68 NY2d 296; Oregon v Kennedy, 456 US 667; United States v Curtis, 683 F2d 769; United States v Opager, 616 F2d 231; United States v Roberts, 640 F2d 225, 452 US 942; United States v Rios, 637 F2d 728; People v Adames, 83 NY2d 89; United States v Dinitz, 424 US 600; People v Catten, 69 NY2d 547; Matter of Nolan v Court of Gen. Sessions of County of N.Y., 11 NY2d 114.)

      Patricia A. DeAngelis, District Attorney, Troy (George M. Dentes and Jennifer C. Shatz of counsel), respondent pro se, and for Paul Czajka, respondent.
    I. Double jeopardy is not implicated as defendant’s first trial reached a verdict. (United States v Jorn, 400 US 470; People v Adames, 83 NY2d 89; Oregon v Kennedy, 456 US 667; People v Catten, 69 NY2d 547; Matter of Randall v Rothwax, 78 NY2d 494; Matter of Potenza v Kane, 79 AD2d 467; United States v Tateo, 377 US 463; People v Liotta, 274 AD2d 751; People v Arduini, 222 AD2d 965; Matter of Owen v Harrigan, 131 AD2d 20.) II. If the Court applies double-jeopardy principles to defendants whose cases reach a verdict, the standard should be intentional conduct of a prosecutor such that the integrity of the judicial process itself has been impaired. (Oregon v Kennedy, 456 US 667; People v Key, 45 NY2d 111; United States v Jenkins, 420 US 358; United States v Dinitz, 424 US 600; United States v Jorn, 400 US 470; People v Ortiz, 54 NY2d 288; Matter of Davis v Brown, 87 NY2d 626; People v Boone, 287 AD2d 461; People v Hart, 216 AD2d 486; People v Mitchell, 197 AD2d 709.) III. The prosecutor’s conduct did not rise to the level to trigger double-jeopardy protections. (United States v Wallach, 979 F2d 912; Oregon v Kennedy, 456 US 667; People v Alicea, 37 NY2d 601; People v Steinhardt, 9 NY2d 267; People v Santorelli, 95 NY2d 412.)

      Bennett L. Gershman, White Plains, and Green & Willstatter (Richard D. Willstatter of counsel), for New York State Association of Criminal Defense Lawyers, amicus curiae.
    The prosecutor’s misconduct was so extraordinary as to subvert the integrity of the trial and warrant the imposition of the double-jeopardy bar to retrial. (People v Adames, 83 NY2d 89; Green v United States, 355 US 184; United States v Jom, 400 US 470; People v Gotten, 69 NY2d 547; United States v Dinitz, 424 US 600; Brady v Maryland, 373 US 83; Arizona v Washington, 434 US 497; People v LaValle, 3 NY3d 88; People v Mateo, 2 NY3d 383; People v Cahill, 2 NY3d 14.)
   OPINION OF THE COURT

Chief Judge Kaye.

In the context of this troubling case of a trial prosecutor’s misconduct, we are asked to determine whether double-jeopardy principles bar petitioner’s retrial where his conviction was reversed on appeal based on that misconduct. We conclude, as did the Appellate Division, that the proper remedy is a new trial.

In April 1997, petitioner allegedly raped and otherwise sexually molested the 21-year-old daughter of his live-in girlfriend. Two years later, in 1999, the victim reported this to the police, and also that petitioner had abused her when she was a child. After an investigation, petitioner was charged with rape in the first degree, sodomy in the first degree, sexual abuse in the first degree and criminal possession of a weapon in the fourth degree, all allegedly committed in 1997 or later. He was not indicted for earlier events.

At the pretrial Ventimiglia hearing, County Court ruled inadmissible much of the evidence of petitioner’s prior uncharged criminal and immoral acts. As found by the Appellate Division, however, the prosecutor continuously flouted these and other rulings by attempting to place excluded evidence before the jury, repeatedly referencing matters not in evidence, making unsupportable assertions and calling upon the jury to draw improper inferences (see People v Gorghan, 13 AD3d 908, 909-911 [3d Dept 2004]). In response, petitioner made numerous objections and moved for a mistrial on three occasions— after opening statements, during testimony and after the prosecutor’s summation. While several times giving curative instructions, the court denied petitioner’s mistrial motions.

Petitioner was convicted on all charges, but the Appellate Division — after detailing the prosecutorial misconduct— reversed his conviction and ordered a new trial, concluding that the prosecutor had engaged in “a pervasive pattern ... of pushing beyond accepted boundaries on key issues ... in a fashion prejudicial to a fair trial” (id. at 911). Upon remittal to County Court, petitioner sought an order barring retrial on double-jeopardy grounds. That court summarily denied petitioner’s motion and petitioner commenced this CPLR article 78 proceeding in the Appellate Division to prohibit a second trial.

The Appellate Division dismissed the petition. It found that, although the misconduct was substantial, the record revealed a prosecutor “bent on securing a conviction, not one seeking to provoke defendant into moving for a mistrial” and that petitioner had failed to demonstrate that the judicial process itself had been impaired (Matter of Gorghan v DeAngelis, 25 AD3d 872, 873 [3d Dept 2006]). Thus, the Court concluded that retrial — rather than dismissal — was the appropriate remedy. We agree.

Analysis

At its essence, the Double Jeopardy Clause protects criminal defendants from multiple prosecutions for the same offense (Oregon v Kennedy, 456 US 667, 671 [1982]). This protection includes the valued, though not absolute, right to proceed to verdict before the empaneled jury (see People v Adames, 83 NY2d 89, 92 [1993]). Thus, ordinarily, when a defendant obtains a verdict or chooses to prevent one by successfully seeking a mistrial, double-jeopardy principles are not implicated.

An exception to this rule exists, however, in instances where a prosecutor has engaged in prejudicial misconduct deliberately intended to provoke a mistrial motion (see Kennedy, 456 US at 673). In such circumstances, the prosecutor has effectively eviscerated the defendant’s right to complete the trial before the empaneled jury and thus double jeopardy may bar retrial even though the defendant’s own successful mistrial motion prevented the verdict. As we explained in Matter of Davis v Brown (87 NY2d 626, 630 [1996]),

“[w]hen the prosecution fears the case is headed toward acquittal and intentionally causes a mistrial, the calculated result of this prosecutorial misconduct is to deprive the defendant of the right to have the case completed before the first jury. In such a case, a second trial of the defendant would constitute an impermissible second bite at the apple for the prosecution, in direct violation of the letter and spirit of both the State and Federal Double Jeopardy Clauses’ prohibitions against repeated prosecution.”

We hold that this well-established but narrow exception is equally applicable to reversals on appeal when a trial court has erroneously denied a defendant’s mistrial motion. As we noted in Adames, “[t]he corrective action for prosecutorial trial misconduct should ordinarily not vary whether a verdict is nullified by a trial court or by an appellate court” (83 NY2d at 90-91). The misconduct is the same, the prejudice to the defendant is the same and the result should therefore be the same. Indeed, to differentiate between granted mistrial motions and reversals on appeal would create an anomalous result. Defendants who suffer both prejudicial prosecutorial misconduct intended to cause a mistrial and erroneous denial of a mistrial motion would never be entitled to double-jeopardy protection, whereas defendants subjected only to prosecutorial misconduct resulting in the grant of a mistrial would be entitled to that protection (see 2 Dressier and Michaels, Understanding Criminal Procedure § 14.05, at 326-327 [4th ed]).

Here, although the prosecutor’s conduct was deplorable, it was — as found by the Appellate Division — motivated by an intent to secure a conviction, not to provoke a mistrial motion. Thus, petitioner is entitled only to the ordinary remedy for harmful trial misconduct — a new, fair trial — and not dismissal of the indictment.

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

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

Judgment affirmed, without costs.