author: Jones, J. Pigott, J.

text:
    [897 NE2d 116, 867 NYS2d 716]
    In the Matter of Dominick Giaquinto, Appellant, v Commissioner of New York State Department of Health, Respondent, et al., Respondent.
    Argued May 1, 2008;
    decided June 12, 2008

      POINTS OF COUNSEL

      Fierro Law Group, LLC, Albany (Louis W. Fierro of counsel), for appellant.
    I. Petitioner is entitled to an award of attorney’s fees under 42 USC §§ 1983 and 1988 as a successful litigant in a CPLR article 78 proceeding against a state official for the wrongful denial of ongoing Medicaid benefits. (Matter of Thomasel v Perales, 78 NY2d 561; Maine v Thiboutot, 448 US 1; Morenz v Wilson-Coker, 321 F Supp 2d 398, 415 F3d 230; Matter of Haussman v Kirby, 96 AD2d 244; Matter of Buhania, 187 Misc 2d 312; Matter of Levandusky v One Fifth Ave. Apt. Corp., 75 NY2d 530; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222; Matter of Lopez v Commissioner of N.Y. State Dept. of

      Health, 42 AD3d 638; Matter of Cleary v Perales, 191 AD2d 209; Matter of Johnson v Blum, 58 NY2d 454.) II. Petitioner’s claim is against a state official for prospective relief, and is not barred by the Eleventh Amendment. (Ex parte Young, 209 US 123; Edelman v Jordan, 415 US 651; Milliken v Bradley, 433 US 267; New York City Health & Hosps. Corp. v Perales, 50 F3d 129; Maher v Gagne, 448 US 122; Morenz v Wilson-Coker, 321 F Supp 2d 398; Matter of Klapak v Blum, 97 AD2d 764; Matter of Aviles v D’Elia, 97 AD2d 821; Matter of Daniels v Hammons, 228 AD2d 341; Matter of Feliz v Wing, 285 AD2d 426.)

      Andrew M. Cuomo, Attorney General, Albany (Victor Paladino, Barbara D. Underwood and Andrea Oser of counsel), for New York State Department of Health, respondent.
    I. Petitioner cannot obtain an attorney’s fee under 42 USC § 1988 because he obtained no determination regarding the merit of his federal statutory claim and that claim lacks merit. (Matter of Syquia v Board of Educ. of Harpursville Cent. School Dist., 80 NY2d 531; Matter of Johnson v Blum, 58 NY2d 454; Matter of Guido v New York State Teachers’ Retirement Sys., 94 NY2d 64; Matter of Thomasel v Perales, 78 NY2d 561; Town of Mount Pleasant v Legion of Christ, Inc., 7 NY3d 122; Matter of Charles A. Field Delivery Serv. [Roberts], 66 NY2d 516; People ex rel. Matthews v New York State Div. of Parole, 95 NY2d 640; Matter of Seitelman v Lavine, 36 NY2d 165; Persky v Bank of Am. Natl. Assn., 261 NY 212; Matter of Lynch v Commissioner of N.Y. State Dept. of Health, 18 Misc 3d 1113[A], 2008 NY Slip Op 50015[U].) II. Petitioner’s federal statutory claim provides no predicate for fees because it asserts no claim against a “person” within the meaning of 42 USC § 1983. (Will v Michigan Dept. of State Police, 491 US 58; Haywood v Drown, 9 NY3d 481; Hafer v Melo, 502 US 21; Ex parte Young, 209 US 123; Green v Mansour, 474 US 64; Ford v Reynolds, 316 F3d 351; Verizon Md. Inc. v Public Serv. Comm’n of Md., 535 US 635; Idaho v Coeur d’Alene Tribe of Idaho, 521 US 261; State Empls. Bargaining Agent Coalition v Rowland, 494 F3d 71; Kostok v Thomas, 105 F3d 65; Sonnleitner v York, 304 F3d 704.)

      Empire Justice Center, Albany (Susan C. Antos of counsel), amicus curiae pro se and Peter Dellinger, Rochester, for Empire Justice Center, amicus curiae.
    The Third Department improperly categorized the type of relief sought and obtained by plaintiff in his CPLR article 78 petition as “retrospective benefits,” when in fact the relief obtained was predominantly prospective. (Edelman v Jordan, 415 US 651; Ex parte Young, 209 US 123; Will v

      Michigan Dept. of State Police, 491 US 58; Quern v Jordan, 440 US 332; Milliken v Bradley, 433 US 267; Association of Surrogates & Supreme Ct. Reporters within City of N.Y. v State of New York, 940 F2d 766; Pauk v Board of Trustees of City Univ. of N.Y., 68 NY2d 702; LaDuke v Lyons, 250 AD2d 969; ABC Radio Network v State of N.Y. Dept. of Taxation & Fin., 294 AD2d 213; Matter of Adams v Welch, 272 AD2d 642.)

      Vollmer & Tanck, P.C., Jericho (Peter Vollmer of counsel), for Peter Vollmer, amicus curiae.
    Imposition of sovereign immunity on the facts of this appeal will erode private bar interest in the representation of the poor and undermine the stated intent and purpose of 42 USC § 1988. (Blum v Stenson, 465 US 886; McMahon v Novello, 192 F Supp 2d 54; Calkins v Blum, 511 F Supp 1073; Matter of Martinez v Perales, 135 AD2d 818, 77 NY2d 923; Matter of Cleary v Perales, 191 AD2d 209; Matter of Palmer v New York State Dept. of Social Servs., 125 AD2d 977; Matter of Klapak v Blum, 97 AD2d 764; Matter of Haussman v Kirby, 96 AD2d 244; Catanzano v Dowling, 847 F Supp 1070, 60 F3d 113.)

      National Center for Law and Economic Justice, Inc., New York City (Henry A. Freedman and Lynn D. Lu of counsel), amicus curiae pro se.
    I. The Third Department’s reversal of the award of 42 USC § 1988 attorney’s fees is contrary to federal and state decisional authority and should be reversed. (Richardson v McKnight, 521 US 399; Will v Michigan Dept. of State Police, 491 US 58; Verizon Md. Inc. v Public Serv. Comm’n of Md., 535 US 635; Green v Mansour, 474 US 64; Ex parte Young, 209 US 123; Matter of Martinez v Perales, 135 AD2d 818, 77 NY2d 923; Matter of Klapak v Blum, 97 AD2d 764; Matter of Aviles v D’Elia, 97 AD2d 821; Matter of Haussman v Kirby, 96 AD2d 244.) II. The reversal of a decision after fair hearing is not retrospective relief that improperly invades the state treasury. (Edelman v Jordan, 415 US 651; Morenz v Wilson-Coker, 415 F3d 230; Klaips v Bergland, 715 F2d 477; Seittelman v Sabol, 91 NY2d 618; Greenstein v Bane, 833 F Supp 1054; Salazar v District of Columbia, 954 F Supp 278.) III. The primary relief granted to appellant was prospective relief available against state officials pursuant to section 1983 to remedy an ongoing violation of federal rights. (State Empls. Bargaining Agent Coalition v Rowland, 494 F3d 71; Morenz v Wilson-Coker, 321 F Supp 2d 398, 415 F3d 230; Matter of Rivera v Trimarco, 36 NY2d 747; Kostok v Thomas, 105 F3d 65; Elliott v Hinds, 786 F2d 298.)
   OPINION OF THE COURT

Jones, J.

At issue is whether petitioner is entitled to recover attorney’s fees from respondent Commissioner of the New York State Department of Health (DOH) under 42 USC § 1988 (b) or whether such claim is barred under the Eleventh Amendment.

Although we see no impediment under Eleventh Amendment sovereign immunity to petitioner recovering attorney’s fees from respondent, we cannot conclude that Supreme Court in fact awarded petitioner relief on federal grounds. Accordingly, we remit this matter to Supreme Court for a determination of (1) petitioner’s claim that respondent’s calculation of his wife’s “community spouse resource allowance” (CSRA) violated a provision of the federal Medicaid Act (42 USC § 1396r-5 [e] [2] [C]) and (2) petitioner’s request for section 1988 attorney’s fees.

Facts and Procedural History

In October 2004, petitioner, a resident in an adult care facility, applied to the Montgomery County Department of Social Services (DSS) seeking Medicaid benefits for nursing facility services commencing August 1, 2004. Petitioner’s application was denied because he and his wife, who still resided in their marital residence, had household income and resources in excess of permissible limits for Medicaid eligibility. On November 16, 2004, petitioner requested an administrative fair hearing with DOH, seeking a reversal of DSS’s denial of his application and to establish an increased CSRA for his wife, the “community spouse.” The hearing was held before an Administrative Law Judge (AU) the following month.

“Medicaid, a joint federal-state program established pursuant to title XIX of the Social Security Act (42 USC § 1396 et seq.), pays for medical care for those unable to afford it, including nursing home care for medically needy older people who become eligible by incurring medical expenses that reduce their monthly income and assets below prescribed levels. Ordinarily, a local Medicaid agency employee calculates an applicant’s income and resources to figure out how much must be reduced or ‘spent down’ in order for the applicant to meet the financial criteria to qualify for Medicaid benefits (see 42 USC § 1396r-5 [c] [1] [B]; Social Services Law § 366-c [7]; 18 NYCRR 360-4.8 [c]).”

On April 14, 2005, respondent, through the ALJ as her designee, issued a fair hearing decision affirming DSS’s denial of petitioner’s Medicaid application based on excess income and resources. The fair hearing decision held that petitioner’s wife was entitled to an increased CSRA. Because the ALJ found that petitioner wife’s income was below the minimum monthly maintenance needs threshold, the matter was remanded to Montgomery County so that DSS could determine how much of petitioner’s excess resources petitioner’s wife would need in order to purchase a “single premium immediate life annuity” to generate sufficient income to raise petitioner’s wife’s income to the threshold amount.

In December 2005, petitioner commenced this CPLR article 78 proceeding against respondent in her official capacity as the head of a state agency, alleging that respondent’s determination requiring petitioner’s wife to purchase a “single premium immediate life annuity” was arbitrary and capricious and in violation of 42 USC § 1396r-5 (e) (2) (C), and that, by such a determination, DOH created a new rule in violation of State Administrative Procedure Act § 202. The petition sought a judgment (1) annulling the fair hearing decision, (2) directing respondent to find petitioner eligible for Medicaid retroactive to the date requested in his original application and (3) determining that petitioner’s wife could retain all of her resources as of that date. Petitioner also sought attorney’s fees under 42 USC §§ 1983 and 1988.

Supreme Court granted the petition, stating

“[DOH] clearly stated that it lacked any legal basis or authorization to direct a community or institutionalized spouse to purchase a particular type of investment. In this action, [DOH] has not explained its change of methodology in the calculation of the CSRA for the community spouse. When an agency alters its prior policy and interpretation of law, it must explain its reasons for doing so or its determination shall be reversed on the law as arbitrary. Matter of Charles A. Field Deliver[y] Service, Inc., 66 NY 2d 516 (1985).”

In short, the court found that with respect to DOH’s calculation of the CSRA, respondent failed to adhere to its own precedent without providing the required explanation. Thus, the court concluded that respondent’s determination that petitioner’s wife purchase a single premium immediate life annuity lacked a rational basis, was arbitrary and capricious, and had no basis in law. The court further determined that respondent had no authority to utilize the employed annuity method to calculate income or resource allowances or to direct applicants to pursue any particular type of investment. Finally, the court vacated the fair hearing decision and respondent’s April 2005 determination, awarded petitioner attorney’s fees and stated that “[a]ny relief not specifically granted is denied.” Respondent originally appealed from Supreme Court’s entire judgment. Although the appeal on the merits was subsequently withdrawn, respondent continued to oppose the award of attorney’s fees.

The Appellate Division reversed petitioner’s fee award. The court noted that under 42 USC § 1988 (b) courts may award attorney’s fees to parties who prevail in a suit to enforce their rights under 42 USC § 1983 or who prevail on state grounds, but have a valid federal claim. The court further noted that under section 1983, state officers may be sued in their official capacities when the petitioner seeks only “injunctive or prospective relief to prevent a continuing violation of the law” (39 AD3d 922, 924 [2007]). The court concluded that “the relief sought by petitioner was retrospective, remedying a prior erroneous decision, even though a grant of such relief would result in his eligibility for and receipt of benefits in the future” (id.). Accordingly, the court held that petitioner failed to prevail against respondent on a claim under section 1983 and therefore was not entitled to an award of counsel fees under section 1988. We granted petitioner leave to appeal and now reverse and remit to Supreme Court for a determination of petitioner’s section 1396r-5 claim and request for attorney’s fees under section 1988.

Discussion

42 USC § 1988 (b) provides that in any action or proceeding to enforce a provision of section 1983, “the court, in its discretion, may allow the prevailing party, other than the United States, . . . reasonable attorney’s fee[s] as part of the costs.” A citizen of the United States may bring a section 1983 claim against a “person” who, under color of state law, “subjects, or causes to be subjected, [the citizen] to the deprivation of any rights, privileges, or immunities secured by the Constitution and [federal] laws” (42 USC § 1983). Although a “person” under section 1983 “shall [generally] be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress” (id.), petitioner here sued respondent in her official capacity as the head of a state agency. Accordingly, the Eleventh Amendment to the Federal Constitution bears on whether petitioner will be entitled to an award of section 1988 attorney’s fees.

“Congress recognized that attorney’s fees are an ‘integral part of the remedy necessary to achieve compliance’ with civil rights laws such as 42 USC § 1983 (S Rep No. 1011, 94th Cong, 2d Sess, at 3 [reprinted in 1976 US Code Cong & Admin News 5910]). In furtherance of that goal, Congress enacted the Civil Rights Attorney’s Fees Awards Act in 1976 (Pub L 94-559, § 2, codified at 42 USC § 1988) . . .
“In keeping with this remedial objective, we have liberally construed section 1988 (Matter of Johnson v Blum, 58 NY2d 454, 459). While the statute intones ‘discretion,’ the legislative history and judicial precedents emphasize that ‘[a] party seeking to enforce the rights protected by the statutes covered by [section 1988], if successful, should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.’ (S Rep No. 1011, 94th Cong, 2d Sess, at 2, 4 [reprinted in 1976 US Code Cong & Admin News 5912] . . ..)” (Matter of Thomasel v Perales, 78 NY2d 561, 567 [1991].)

Eleventh Amendment

Under the Eleventh Amendment, which sets forth the doctrine of sovereign immunity, “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” It is well settled that the Eleventh Amendment bars “a suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury” (Edelman v Jordan, 415 US 651, 663 [1974]). Further, under Eleventh Amendment sovereign immunity, “neither a State nor its officials acting in their official capacities are ‘persons’ under § 1983” (Will v Michigan Dept. of State Police, 491 US 58, 71 [1989]).

The United States Supreme Court has, however, carved out a narrow exception to this rule. In Ex parte Young (209 US 123, 159-160 [1908]), the Court held that

“[i]f the act which the state [officer] seeks to enforce be a violation of the Federal Constitution, the officer, in proceeding under such enactment, comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct. The state has no power to impart to him any immunity from responsibility to the supreme authority of the United States” (citation omitted).

In Papasan v Allain (478 US 265 [1986]), the Supreme Court, synthesizing a number of its prior decisions interpreting Young, stated:

“Young’s applicability has been tailored to conform as precisely as possible to those specific situations in which it is necessary to permit the federal courts to vindicate federal rights and hold state officials responsible to the supreme authority of the United States. Consequently, Young has been focused on cases in which a violation of federal law by a state official is ongoing as opposed to cases in which federal law has been violated at one time or over a period of time in the past, as well as on cases in which the relief against the state official directly ends the violation of federal law as opposed to cases in which that relief is intended indirectly to encourage compliance with federal law through deterrence or directly to meet third-party interests such as compensation. . . . Remedies designed to end a continuing violation of federal law are necessary to vindicate the federal interest in assuring the supremacy of that law. But compensatory or deterrence interests are insufficient to overcome the dictates of the Eleventh Amendment. . . .
“[RJelief that serves directly to bring an end to a present violation of federal law is not barred by the Eleventh Amendment even though accompanied by a substantial ancillary effect on the state treasury. . . .
“For Eleventh Amendment purposes, the line between permitted and prohibited suits will often be indistinct ... In discerning on which side of the line a particular case falls, we look to the substance rather than to the form of the relief sought, and will be guided by the policies underlying the decision in Ex Parte Young” (Papasan, 478 US at 277-279 [citations and internal quotation marks omitted]).

In short, relief that serves to remedy a past violation of the law is retrospective in nature. On the other hand, prospective relief seeks to end an ongoing or future violation of law. State officials acting in their official capacities may only be sued for injunctive or prospective relief (see Will, 491 US at 71 n 10 [“a state official in his or her official capacity, when sued for injunctive relief, (is) a person under § 1983 because official-capacity actions for prospective relief are not treated as actions against the State” (internal quotation marks omitted)]; see also Huminski v Corsones, 396 F3d 53, 70 [2d Cir 2005] [“state officials cannot be sued in their official capacities for retrospective relief under Section 1983 . . . (but) can be subject to suit in their official capacities for injunctive or other prospective relief’]).

Here, petitioner casts the relief he sought as prospective because it would result in his ongoing entitlement to current and future Medicaid benefits, which neither party disputes and, therefore, would end respondent’s ongoing violation of federal law. The fact that petitioner’s Medicaid eligibility would be retroactive to the date requested in his application is only incidental to the primary relief sought, namely, the annulment of the fair hearing decision. Respondent counters that the relief petitioner sought was retrospective in that it merely sought to remedy a prior erroneous decision even though the grant of such relief would entitle petitioner to benefits in the future. Respondent’s argument is unavailing.

In light of Young and its progeny, we agree with petitioner and hold that the relief petitioner sought was prospective in nature; accordingly, the Eleventh Amendment does not bar petitioner’s suit against respondent. In seeking to annul the fan-hearing decision, petitioner sought not only to stop an ongoing violation of federal law by a state official acting in her official capacity, but to vindicate his right to Medicaid eligibility under the federal law and receive ongoing current and future Medicaid payments. The relief sought also had the effect of vindicating the federal interest in assuring the supremacy of the federal Medicaid Act (see Papasan, 478 US at 278). Respondent’s argument minimizes the importance of the federal right sought to be vindicated and elevates the form of the relief sought over its substance, contrary to the Supreme Court’s direction to courts considering whether a suit is or is not barred by the Eleventh Amendment (id. at 279).

Finally, there is a split in Circuit Court authority regarding the Eleventh Amendment issue before us (compare Tekkno Labs., Inc. v Perales, 933 F2d 1093 [2d Cir 1991] [holding that Medicaid provider, who brought a section 1983 claim challenging New York State’s withholding of payment of claims and sought a preliminary injunction requiring the State to cease such activity, sought retrospective relief barred by the Eleventh Amendment], with Morenz v Wilson-Coker, 415 F3d 230 [2d Cir 2005] [Plaintiff sought injunctive and declaratory relief after the State of Connecticut denied his Medicaid application based on his wife’s excess resources. Court held award of Medicaid benefits beginning three months prior to date husband was deemed Medicaid eligible was not retroactive relief in violation of the Eleventh Amendment] and Kostok v Thomas, 105 F3d 65, 69 [2d Cir 1997] [In holding that plaintiffs suit for injunctive relief compelling that State of Connecticut furnish him with a new wheelchair customized to his special needs was not violative of the Eleventh Amendment, Court stated, “(plaintiff) seeks relief that is truly prospective: a wheelchair from this time forward. The relief cannot be deemed retroactive simply because it costs money”]).

However, the Second Circuit has recently sanctioned awards of section 1988 attorney’s fees under circumstances similar to those presented here (see Morenz and Kostok), and we agree with those decisions. In light of the state-federal nature of the Medicaid programs and the fact that federal Medicaid claims can be brought in both state and federal courts, agreement between this Court and the Second Circuit on the Eleventh Amendment issue at bar would allay forum shopping concerns (i.e., those seeking Medicaid benefits would [1] have the security of knowing that the relevant substantive law does not differ between the state and federal forums and [2] be less inclined to choose between the two forums based on how favorable the relevant substantive law is).

Supreme Court Did Not Clearly Award Relief on Federal Grounds

In Farrar v Hobby (506 US 103 [1992]), the Supreme Court stated:

“[T]o qualify as a prevailing party, a civil rights plaintiff must obtain at least some relief on the merits of his claim. The plaintiff must obtain an enforceable judgment against the defendant from whom fees are sought, or comparable relief through a consent decree or settlement. Whatever relief the plaintiff secures must directly benefit him at the time of judgment or settlement. Otherwise the judgment or settlement cannot be said to affect the behavior of the defendant toward the plaintiff. Only under these circumstances can civil rights litigation effect the material alteration of the legal relationship of the parties and thereby transform the plaintiff into a prevailing party. In short, a plaintiff prevails when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff” (id. at 111-112 [brackets, citations and internal quotation marks omitted]).

Regarding section 1988 counsel fees, we have stated:

“[A]ttorney’s fees are available under section 1988 where relief is sought on both State and Federal grounds, but nevertheless awarded on State grounds only. In such a case, if a constitutional question is involved, fees may be awarded if the constitutional claim is substantial and arises out of a common nucleus of operative fact as the State claim” (Thomasel, 78 NY2d at 568 [citations and internal quotation marks omitted]).

However, where “a [petitioner] joins a claim under one of the federal statutes covered by the Fees Act with a claim that does not allow attorney fees, that [petitioner,] if it prevails on the non-fee claim, is entitled to a determination on the other claim [if nonconstitutional] for the purpose of awarding attorney fees” (Matter of Johnson v Blum, 58 NY2d 454, 458 n 2 [1983]). Thus, under Johnson, petitioner is entitled to a determination of his section 1983 claim.

Here, petitioner’s request for attorney’s fees was premised on his claim that respondent’s calculation of the CSRA violated a specific federal Medicaid Act provision, namely 42 USC § 1396r-5 (e) (2) (C). However, Supreme Court made no determination that respondent violated this statutory provision, i.e., it did not award petitioner any relief on the merits of his federal claim. Consequently, Supreme Court made no determination of petitioner’s section 1983 claim; it annulled the fair hearing decision and, as a result of the annulment, petitioner became Medicaid eligible, but it stated no clear federal basis for its decision. In other words, Supreme Court appeared to resolve this matter solely on state law grounds instead of addressing the issue whether DOH’s determination and remand to DSS violated a specific provision of the federal Medicaid Act.

Thus, on this record, we cannot conclude, as a threshold matter, whether there was a federal predicate for Supreme Court’s award of attorney’s fees to petitioner or that petitioner was a “prevailing party” within the meaning of 42 USC § 1988 (b) as it is not clear that Supreme Court awarded petitioner relief on his 42 USC § 1396r-5 claim on federal grounds (i.e., it is not clear that petitioner prevailed against respondent on a claim under 42 USC § 1983). Further, it is not apparent whether Supreme Court determined that DOH was a “person” which, while acting under color of state law, deprived petitioner of the federal right to Medicaid. In the absence of the foregoing, Supreme Court did not have discretion to award attorney’s fees here.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the matter remitted to Supreme Court for further proceedings in accordance with this opinion.

Pigott, J.

(dissenting). I respectfully dissent. In my view, the record is sufficient to conclude that respondent’s calculation of petitioner’s wife’s “community spouse resource allowance” (CSRA) did not violate federal Medicaid law. Accordingly, remittal is unnecessary and unwarranted. I would therefore affirm the order of the Appellate Division on different grounds.

The primary relief sought by petitioner in this proceeding was to overturn the denial of his Medicaid application. That relief was granted by Supreme Court. As explained by the majority, Supreme Court premised its decision on state law, holding that respondent’s determination lacked a rational basis, was arbitrary and capricious, and had no basis in law. Supreme Court explained that, on a prior occasion, the Department of Health (DOH) stated that it lacked the authority to direct Medicaid applicants to purchase a particular type of investment. In this case, however, respondent required petitioner’s wife to purchase a “single premium immediate life annuity” to attain the “minimum monthly maintenance needs allowance” (MMMNA). Supreme Court concluded that respondent failed to explain “its change of methodology in the calculation of the CSRA for the community spouse,” which an agency is required to do when it “alters its prior policy and interpretation of law.” Supreme Court never addressed petitioner’s further argument that respondent’s actions violated federal Medicaid law.

Assuming, as the majority does, that Matter of Johnson v Blum (58 NY2d 454, 458 n 2 [1983]) requires courts to determine a federal statutory law claim “for the purpose of awarding attorney fees” where a litigant already prevailed on a dispositive state law claim, then this Court should determine whether a federal law predicate exists for awarding attorney’s fees to petitioner under 42 USC § 1988 (b), i.e., whether respondent’s calculation of the CSRA violated 42 USC § 1396r-5 (e) (2) (C). In my view, on this record, no federal predicate exists for the awarding of attorney’s fees, rendering it unnecessary to remit this matter to Supreme Court for a determination as to whether an alternative ground—i.e., a federal law ground— existed for granting the petition and annulling respondent’s determination.

In the petition, petitioner alleged that respondent violated 42 USC § 1396r-5 (e) (2) (C) by directing the Montgomery County Department of Social Services to determine how much excess resources are needed to purchase a single premium immediate life annuity as a means to generate sufficient monthly income to raise petitioner’s wife’s income to the MMMNA level. That provision of the Medicaid law, entitled “[Revision of community spouse resource allowance,” provides:

“If either such spouse establishes that the community spouse resource allowance (in relation to the amount of income generated by such an allowance) is inadequate to raise the community spouse’s income to the minimum monthly maintenance needs allowance, there shall be substituted, for the community spouse resource allowance under subsection (f) (2) of this section, an amount adequate to provide such a minimum monthly maintenance needs allowance” (id.).

Here, nothing in the statute prohibits respondent from using the cost of a single premium immediate life annuity as a basis for calculating an increase in the CSRA. As one court recently noted, “[t]he statutory language does not . . . prescribe any particular method” for computing the increased CSRA, thus supporting DOH’s “argument that it has broad discretion to select a reasonable methodology for making this determination” (Matter of Lynch v Commissioner of N.Y. State Dept. of Health, 18 Misc 3d 1113[A], 2008 NY Slip Op 50015[U], *4 [Sup Ct, Albany County, Jan. 9, 2008]). The Lynch court also noted that the Centers for Medicare and Medicaid Services (CMS), the federal agency charged with administering the Medicaid program, advised State Medicaid directors that

“[s]tates may use any reasonable method for determining the amount of resources necessary to generate adequate income, including adjusting the CSRA to the amount a person would have to invest in a single premium annuity to generate the needed income, attributing a rate of return based on a presumed available rate of interest, or other methods” (id. at *5).

Moreover, as this case demonstrates, the federal issue involved is a pure legal question capable of resolution by this Court, thereby obviating the need for remittal. Thus, in my view, petitioner clearly failed to establish his entitlement to attorney’s fees on this record because respondent did not violate federal law (i.e., 42 USC § 1396r-5 [e] [2] [C]).

Chief Judge Kaye and Judges Graffeo and Read concur with Judge Jones; Judge Pigott dissents and votes to affirm in a separate opinion in which Judge Smith concurs; Judge Ciparick taking no part.

Order reversed, etc.

      . As we stated in Matter of Tomeck (8 NY3d 724, 727-728 [2007]),

      . Under the Medicare Catastrophic Coverage Act of 1988 (42 USC § 1396r-5),
      “Congress adopted the spousal impoverishment provisions, a complex set of standards governing the allocation of resources between the spouse residing in a nursing home (the institutionalized spouse) and the [community spouse]. In general, these provisions are designed to insure that the community spouse retains necessary, but not excessive, income and assets, which do not need to be depleted to make the institutionalized spouse eligible for Medicaid. In [enacting this legislation], Congress sought to protect community spouses from ‘pauperization’ while preventing financially secure couples from obtaining Medicaid assistance” (Tomeck, 8 NY3d at 728 [citations and internal quotation marks omitted]).
      Under federal and state law, the “community spouse” is entitled to a minimum level of monthly income, referred to as the “minimum monthly maintenance needs allowance” (see 42 USC § 1396r-5 [d] [3]; Social Services Law § 366-c [2] [h]) and a CSRA (see 42 USC § 1396r-5 [f] [2]; Social Services Law § 366-c [2] [d]). In determining whether an “institutionalized” spouse is Medicaid eligible, the only resources of the couple taken into account are those in excess of the CSRA (see 42 USC § 1396r-5 [c] [2]).

      . Regarding his federal claim, petitioner specifically alleged that:
      “Pursuant to federal law, if the [CSRA] is inadequate to raise the community spouse’s income to the [minimum monthly maintenance needs allowance], ‘there shall be substituted for the [CSRA] under subsection (f) (2) of this section, an amount adequate to provide such a minimum monthly maintenance needs allowance.’ 42 U.S.C. § 1396r-5(e)(2)(C) (emphasis added).
      “[ ]The Respondents erroneously remanded the case to the [DSS] ‘so that it can determine how much of the excess resources are needed to purchase a single premium immediate life annuity to generate sufficient monthly income to raise the community spouses’s total available income up to the [minimum monthly maintenance needs allowance] for the period of August 1, 2004 ongoing.’ ”

      . Although named as a respondent in this proceeding, the Montgomery County Commissioner of Social Services did not oppose the petition in Supreme Court or appear at the Appellate Division.

      . Regarding 42 USC § 1988, we stated:

      . Additionally, the following factors militate in favor of our determination that petitioner sought prospective relief: (1) this Court liberally construes section 1988 claims for attorney’s fees, as section 1988 is meant to encourage “the availability of needed legal assistance to individuals whose rights have been violated and who require vindication” (Thomasel, 78 NY2d at 570); and (2) without the possibility of an attorney’s fees award, indigent Medicaid applicants who allege that they were wrongfully denied Medicaid benefits could not secure the representation needed to vindicate their rights and would effectively be left without a remedy.

      . Although the specific relief requested here is different from the injunctive relief requested in Morenz and Kostok, all three cases are similar in the following respects: (1) the relief requested would entitle petitioner/plaintiff to benefits in the future; and (2) the award of retroactive benefits was ancillary to the primary award.

      . The distinction between federal constitutional claims and federal statutory claims is drawn so that courts may avoid reaching constitutional issues solely for purposes of deciding requests for fees (see Johnson, 58 NY2d at 458 n 2). However, the Appellate Division did not acknowledge this difference. Instead, the court conflated this distinction and mistakenly found that Supreme Court had discretion to consider whether section 1988 counsel fees should be awarded.

      . The dissent’s reliance on Matter of Lynch v Commissioner of N.Y. State Dept. of Health (18 Misc 3d 1113[A], 2008 NY Slip Op 50015[U] [Sup Ct, Albany County, Jan. 9, 2008]) is misplaced. In Matter of Lynch, Supreme Court’s decision regarding DOH’s broad discretion to select a reasonable methodology for determining the CSRA was expressly based on a July 27, 2006 interpretation of 42 USC § 1396r-5 (e) by the Centers for Medicare and Medicaid Services (CMS), which the dissent quotes. Here, however, the federal issue is whether respondent’s April 2005 determination regarding petitioner’s application for benefits was lawful under the federal Medicaid Act. Because CMS’s regulatory interpretation was not issued prior to petitioner’s administrative fair hearing or respondent’s determination, the dissent’s primary justification for deciding the federal issue as a matter of law without further record development or argument is mooted.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    [897 NE2d 1044, 868 NYS2d 563]
    Frieda Tydings, Respondent, v Greenfield, Stein & Senior, LLP, Appellant.
    Argued September 10, 2008;
    decided October 16, 2008

      POINTS OF COUNSEL

      Kavanagh Maloney & Osnato LLP, New York City (James J. Maloney, David F. Bayne and Steven M. Cordero of counsel), for appellant.
    I. The order of the Appellate Division should be reversed because it has created new law in conflict with this Court’s precedents. (Vavolizza v Krieger, 33 NY2d 351; Moore v Aegon Reins. Co. of Am., 196 AD2d 250; Buechel v Bain, 97 NY2d 295; D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659; Ross v Medical Liab. Mut. Ins. Co., 75 NY2d 825; O’Connor v G & R Packing Co., 53 NY2d 278; Malloy v Trombley, 50 NY2d 46; Halpern v Schwartz, 426 F2d 102; Gelb v Royal Globe Ins. Co., 798 F2d 38; Aldrich v State of New York, 110 AD2d 331.) II. In the alternative, the order of the Appellate Division should be reversed because plaintiff did not have a valid statute of limitations defense in the accounting action. (Matter of Barabash, 31 NY2d 76; Kaszirer v Kaszirer, 286 AD2d 598; Craig v Bank of N.Y., 169 F Supp 2d 202; Spallholz v Sheldon, 216 NY 205; Matter of Alpert, 234 AD2d 150; Matter of Zilkha, 174 AD2d 331; Matter of Ashheim, 111 App Div 176, 185 NY 609; Matter of Mayo, 11 Misc 3d 1072[A], 2006 NY Slip Op 50525[U]; Nobile v Schwartz, 265 F Supp 2d 282; Matter of Meyer, 303 AD2d 682.)

      Proskauer Rose LLP, New York City (Bertrand C. Sellier and Andy S. Oh of counsel), and Peter M. Levine for respondent.
    I. The Appellate Division’s decision is entirely consistent with New York law of collateral estoppel. (Matter of Halyalkar v Board of Regents of State of N.Y., 72 NY2d 261; Gilberg v Barbieri, 53 NY2d 285; Windowizards, Inc. v S & S Improvements, Inc., 11 Misc 3d 130[A], 2006 NY Slip Op 50310[U]; Buechel v Bain, 97 NY2d 295; Staatsburg Water Co. v Staatsburg Fire Dist., 72 NY2d 147; Sucher v Kutscher’s Country Club, 113 AD2d 928; Commissioners of State Ins. Fund v Low, 3 NY2d 590; Avon Dev. Enters. Corp. v Samnick, 286 AD2d 581; Church v New York State Thruway Auth., 16 AD3d 808; Ryan v New York Tel. Co., 62 NY2d 494.) II. The substantive limitations issue is not properly before this Court and, in any event, the Appellate Division correctly stated the law with respect to whether a resignation can constitute a repudiation for purposes of the statute of limitations. (Matter of Barabash, 31 NY2d 76; Kaszirer v Kaszirer, 286 AD2d 598; Craig v Bank of N.Y., 169 F Supp 2d 202; Spallholz v Sheldon, 216 NY 205; Matter of Carpenter [American Sur. Co. of N.Y.], 271 App Div 71, 297 NY 498; Price v Price, 69 NY2d 8; General Fireproofing Co. v Keepsdry Constr. Co., 225 NY 180; Coatsworth v Lehigh Val. Ry. Co., 156 NY 451; Westchester Religious Inst, v Kamerman, 262 AD2d 131; Nobile v Schwartz, 265 F Supp 2d 282.)
   OPINION OF THE COURT

Smith, J.

We hold that collateral estoppel does not prevent relitigation of a ruling that was an alternative basis for a trial-level decision, where an appellate court affirmed the decision without addressing that ruling. We also hold that, when a trustee resigns, the statute of limitations governing an action to compel her to account runs from the date the trusteeship is turned over to a successor trustee.

I

Frieda Tydings brings this legal malpractice action against the law firm of Greenfield, Stein & Senior, LLP (GSS), alleging that GSS’s negligence in defending a proceeding to compel an accounting caused her damage.

Tydings served for several years as trustee of a grantor trust created by Tydings’s relative, Ricki Singer. She resigned on January 1, 1997, and was succeeded as trustee by Singer’s brother on that date. For more than six years after that, Ty-dings rendered no accounting. On August 20, 2003, Singer filed a petition in Surrogate’s Court, seeking a compulsory accounting from both Tydings and Tydings’s successor as trustee.

Tydings retained GSS to represent her. The law firm filed a notice of appearance but did not answer the petition or assert, in any form, a statute of limitations defense. The Surrogate ordered Tydings to provide an accounting, which she did. Singer objected to the accounting and Tydings, now represented by new counsel, moved to dismiss the objections, relying on the six-year statute of limitations (CPLR 213 [1]). The Surrogate denied Tydings’s motion on two alternative grounds: that Tydings had failed to show the statute expired before the proceeding to compel an accounting was begun, and that the statute of limitations defense was unavailable to Tydings because she asserted it too late (Matter of Singer, 12 Misc 3d 621, 624-626 [Sur Ct, NY County 2006]). The Appellate Division affirmed the Surrogate’s order on the second ground only, holding that Tydings “waived her statute of limitations defense by failing to raise it in response to the grantor’s petition to compel an accounting” (Matter of Singer, 30 AD3d 211 [2006]).

Tydings then began this action against GSS. She claims that the accounting proceeding against her would have been dismissed if GSS’s negligence had not caused her to waive her statute of limitations defense. Of course, this could be true only if the defense had merit. GSS moved to dismiss, contending that Tydings was bound by the Surrogate’s alternative holding, in the previous proceeding, rejecting her statute of limitations argument. Supreme Court granted the motion (14 Misc 3d 1233[A], 2007 NY Slip Op 50279[U]), but the Appellate Division reversed, holding that the Surrogate’s ruling on the statute of limitations issue should not be given collateral estoppel effect (Tydings v Greenfield, Stein & Senior, LLP, 43 AD3d 680 [1st Dept 2007]). The Appellate Division also discussed the merits of that issue: it rejected the Surrogate’s reasoning and said that the statute of limitations began to run upon Tydings’s “resignation as trustee and surrender of the trusteeship to a successor” (id. at 683 n). The Appellate Division granted leave to appeal to us on a certified question, and we now affirm.

II

Collateral estoppel bars relitigation of an issue “which has necessarily been decided in [a] prior action and is decisive of the present action” if there has been “a full and fair opportunity to contest the decision now said to be controlling” (Buechel v Bain, 97 NY2d 295, 303-304 [2001]). When a decision rests on two independent grounds, either of which could support it alone, the general rule, according to the Restatement (Second) of Judgments, is that neither holding is binding for collateral estoppel purposes (Restatement [Second] of Judgments § 27, Comment i). In Malloy v Trombley (50 NY2d 46 [1980]), however, we departed from the Restatement rule.

Malloy and Trombley were both injured when Malloy’s car ran into Trombley’s on a highway. Both brought claims against the State in the Court of Claims. The Court of Claims tried the two cases jointly and dismissed them both, finding in the alternative that the State was not negligent and that both Malloy and Trombley were contributorily negligent; because the accident occurred before the effective date of the comparative negligence law, contributory negligence was a complete bar to recovery. No party appealed from the Court of Claims decision.

Malloy also brought a negligence action against Trombley. We affirmed the dismissal of that action, holding it was barred by the Court of Claims’ finding that Malloy was guilty of contributory negligence. We took note of “the recognized principle that conclusive effect is not to be accorded a finding which is but an alternative ground for the prior court’s decision,” but decided not to “apply that principle rigidly” (50 NY2d at 49). We based our decision on the circumstances present in Malloy, and said we did not intend “to enunciate any broad rule” (id. at 52). Judge Fuchsberg, whose vote was necessary to the outcome, wrote a concurring opinion in which he stressed that the result was tied to “the particular facts and circumstances in this case” (id. at 53 [Fuchsberg, J., concurring]). He described those circumstances in detail, including “the unhurried and painstaking care” with which the Court of Claims trial had been conducted (id.) and the fact that, in his view, the Court of Claims’ finding on the contributory negligence issue was “ [pragmatically . . . not open to any serious dispute” (id. at 54).

It is obvious both from the 4-3 vote and from the opinions of the majority judges that Malloy was a close case. Our later decision in O’Connor v G & R Packing Co. (53 NY2d 278, 280 [1981]), declining to apply collateral estoppel to an alternative ground for decision when it was not “clear that the prior determination squarely addressed and specifically decided the issue,” shows that, while we have not abandoned Malloy, we have not been willing to extend it. But GSS asks us to extend it here, by applying collateral estoppel where the losing party in the earlier case tried, unsuccessfully, to get appellate review of the alternative holding now being invoked against her. We will not take this further step.

This case is different from Malloy, in which the losing party in the first lawsuit could have appealed but did not. Ty dings did appeal the first decision against her, and challenged the Surrogate’s statute of limitations holding, but was unable to get an appellate ruling on the issue. It is significantly less clear here than it was in Malloy that the losing party had a full and fair chance to overturn the earlier decision.

GSS cites no case from any jurisdiction in which an alternative holding has been held binding for collateral estoppel purposes after an appellate court affirmed the earlier judgment without considering that holding. Several decisions by the Appellate Division (Sabbatini v Galati, 43 AD3d 1136, 1139 [2d Dept 2007]; Vincent v Thompson, 50 AD2d 211, 213 [2d Dept 1975]) and by federal courts (Gelb v Royal Globe Ins. Co., 798 F2d 38, 45 [2d Cir 1986]; Hannahville Indian Community v United States, 180 Ct Cl 477, 485 [1967]) adopt the opposite rule. As the Second Circuit put it in Gelb: “[I]f an appeal is taken and the appellate court affirms on one ground and disregards the other, there is no collateral estoppel as to the unreviewed ground” (798 F2d at 45). Gelb was stating federal law, but we hold today that New York law is the same.

For this reason, the Surrogate’s decision on the statute of limitations issue does not bind Ty dings in the present lawsuit. Ty dings argues that the same is true for another reason also— that the Surrogate’s decision was on a pure question of law, to which the doctrine of collateral estoppel does not apply (American Home Assur. Co. v International Ins. Co., 90 NY2d 433, 440 [1997]). We have no need to consider this argument.

Ill

Even though the Surrogate’s decision is not binding as a matter of collateral estoppel, GSS would still be entitled to dismissal of this case if the Surrogate had been correct in holding that the statute of limitations defense, which GSS failed to plead, lacked merit. We conclude, however, that the statute of limitations defense was a good one, and would have required dismissal of the accounting proceeding against Tydings if it had been timely asserted.

The parties agree that an accounting proceeding against a former trustee is governed by CPLR 213 (1), which lists “an action for which no limitation is specifically prescribed by law” among actions that “must be commenced within six years.” The disputed question here is: within six years of what? We answered this question nearly a century ago, when we said, speaking through Judge Cardozo:

“While an express trust subsists and has not been openly renounced, the Statute of Limitations does not run in favor of the trustee. But after the trust relation is at an end, and the trustee has yielded the estate to a successor, the rule is different. The running of the statute then begins, and only actual or intentional fraud will be effective to suspend it” (Spallholz v Sheldon, 216 NY 205, 209 [1915] [citations omitted and emphasis added]).

We see no reason to depart from the rule of Spallholz. It is easy to understand and easy to apply, and gives the successor trustee and the beneficiaries six full years to bring an accounting proceeding after the former trustee’s role has come to an end. In this case, Tydings turned over the trusteeship to a successor on January 1, 1997, and the accounting proceeding was brought more than six years later, on August 20, 2003. It was brought too late.

GSS argues for a different rule, contending that the statute does not start to run until the former trustee is asked to give an accounting and refuses to do so. That rule is an impractical one; its effect would be that the statute would not start to run for years, perhaps decades, if the former trustee was never asked for an accounting and had no occasion to say that she would not give one. GSS claims, however, that its rule is supported by Matter of Barabash (31 NY2d 76 [1972]). We disagree.

Barabash is a different kind of case. The fiduciary there was the administrator of a decedent’s estate, and was also the decedent’s nephew. The administrator had distributed the entire estate to himself, ignoring the rights of the decedent’s children. The children sued for an accounting some 17 years later. It was not suggested in Barabash that the administrator had resigned, or turned over his office to a successor. We held that, on those facts, the statute did not begin to run until the administrator openly repudiated his obligation to account. Until that repudiation occurred, the beneficiaries of the estate were entitled to assume that the administrator would perform his trust responsibilities. But here, Singer knew on January 1, 1997 that her brother had replaced Tydings as trustee. Knowing that Tydings was no longer her fiduciary, she was not justified in waiting indefinitely to demand an accounting.

The Surrogate in the Singer accounting proceeding did not adopt GSS’s present theory, but held that the “statute of limitations can begin to run on the beneficiary’s right to an accounting only where the former fiduciary has failed to have accounted after a reasonable time to do so has passed” (12 Misc 3d at 625). The Surrogate’s theory, as we understand it, is that the beneficiaries or the successor trustee cannot or should not bring action to compel an accounting until a reasonable time after the resignation, and that the statute should not start running before suit can be brought.

The Surrogate’s theory would leave the courts with the problem of deciding what a reasonable time is. In this case, for example, the accounting proceeding was brought six years, seven months and 19 days after Tydings turned the trusteeship over to her successor—so that, on the Surrogate’s reasoning, it would be necessary to decide whether seven months and 19 days was more or less than a reasonable time to account. We prefer the clearer and simpler rule that the time starts running when a successor trustee is put in place. This rule does not give Singer less than six years to sue, for she could have sought to compel an accounting the day after Tydings’s resignation if she had wanted to. Under Surrogate’s Court Procedure Act § 2205 (1), “the court may at any time, upon it appearing that it is for the best interests of the estate, make an order . . . requiring a fiduciary to file an intermediate or final account” (SCPA 2205 [1] [a] [emphasis added]).

For all these reasons, we reaffirm the rule of Spallholz: running of the statute of limitations on a proceeding to compel an accounting begins when “the trust relation is at an end, and the trustee has yielded the estate to a successor” (216 NY at 209).

IV

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

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

Order affirmed, etc.


author: Ciparick, J.

text:
    [898 NE2d 549, 869 NYS2d 366]
    Stephen J. Brooks et al., Plaintiffs, v Judlau Contracting, Inc., Defendant and Third-Party Plaintiff-Appellant. Thunderbird Constructors, Inc., Third-Party Defendant-Respondent.
    Argued September 4, 2008;
    decided October 21, 2008

      POINTS OF COUNSEL

      Wilson, Elser, Moskowitz, Edelman & Dicker LLP, Chicago, Illinois (Melissa A. Murphy-Petros of counsel), and Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York City (Richard E. Lerner of counsel), for defendant and third-party plaintiff-appellant.
    I. This Court has subject matter jurisdiction to review the order from which the Appellate Division granted leave to appeal. (Burke v Crosson, 85 NY2d 10; Barile v Kavanaugh, 67 NY2d 392.) II. Questions of statutory interpretation are reviewed de novo. (Matter of Beekman Hill Assn. v Chin, 274 AD2d 161; Fleming v Graham, 10 NY3d 296.) III. Partial contractual indemnification provisions, such as that between Judlau Contracting, Inc. and Thunderbird Constructors, Inc. here, are valid and fully enforceable under General Obligations Law § 5-322.1. (Itri Brick & Concrete Corp. v Aetna Cas. & Sur. Co., 89 NY2d 786; Lesisz v Salvation Army, 40 AD3d 1050; Dutton v Pankow Bldrs., 296 AD2d 321, 99 NY2d 511; 107 W. Apt. Corp. v K & J Restoration, Inc., 19 Misc 3d 1106[A], 2008 NY Slip Op 50570[U]; Rhodes-Evans v 111 Chelsea LLC, 44 AD3d 430; Jackson v City of New York, 38 AD3d 324; O’Connor v William Metrose Ltd. Bldr./Dev., 38 AD3d 1207; D’Allessandro v Lucent Tech., 16 Misc 3d 1125[A], 2007 NY Slip Op 51579[U]; Murphy v Columbia Univ., 4 AD3d 200; Madeira v Affordable Hous. Found., Inc., 315 F Supp 2d 504.) IV. General Obligations Law § 5-322.1’s legislative history supports enforcement of partial contractual indemnification provisions: the purpose of the statute is payment of damages according to fault. (Burgos v 213 W. 23rd St. Group LLC, 48 AD3d 283; Quevedo v City of New York, 56 NY2d 150; County of Onondaga v Penetryn Sys., 84 AD2d 934; Brown v Two Exch. Plaza Partners, 76 NY2d 172; Itri Brick

      & Concrete Corp. v Aetna Cas. & Sur. Co., 89 NY2d 786.) V. The enforcement of partial contractual indemnification provisions is consistent with the principles of common-law contribution. (Dole v Dow Chem. Co., 30 NY2d 143; Glaser v Fortunoff of Westbury Corp., 71 NY2d 643; Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559; Fleming v Graham, 10 NY3d 296; Corriere v Whiting Turner Contr., 299 AD2d 509; Robinson v City of New York, 8 Misc 3d 1012[A], 2005 NY Slip Op 51067[U], 22 AD3d 293; God’s Battalion of Prayer Pentecostal Church, Inc. v Miele Assoc., LLP, 6 NY3d 371.)

      Cerussi & Spring, White Plains (Peter Riggs of counsel), for third-party defendant-respondent.
    I. Where, as here, the indemnification agreement purports to require indemnification of a partially negligent party, General Obligations Law § 5-322.1 renders the agreement void and unenforceable. (Itri Brick & Concrete Corp. v Aetna Cas. & Sur. Co., 89 NY2d 786; Brown v Two Exch. Plaza Partners, 76 NY2d 172; Smith v Xaverian High School, 270 AD2d 246; National Union Fire Ins. Co. of Pittsburgh, Pa. v State Ins. Fund, 266 AD2d 518.) II. The express terms of the indemnification agreement between Judlau Contracting, Inc. and Thunderbird Constructors, Inc. require indemnification for Judlau’s negligence. (Levine v Shell Oil Co., 28 NY2d 205; Liff v Consolidated Edison Co. of N.Y., 29 AD2d 665, 23 NY2d 854; Drzewinski v Atlantic Scaffold & Ladder Co., 70 NY2d 774; Walsh v Morse Diesel, 143 AD2d 653; Velez v Tishman Foley Partners, 245 AD2d 155.) III. The indemnification provision at issue contains no terms expressly excluding indemnification for Judlau Contracting, Inc.’s negligence. (Itri Brick & Concrete Corp. v Aetna Cas. & Sur. Co., 89 NY2d 786; County of Onondaga v Penetryn Sys., 84 AD2d 934, 56 NY2d 726; Brown v Two Exch. Plaza Partners, 146 AD2d 129, 76 NY2d 172; National Union Fire Ins. Co. of Pittsburgh, Pa. v State Ins. Fund, 266 AD2d 518.) IV. To construe the phrase “to the fullest extent permitted by law” as implying that the negligence of the promisee should be excluded, so as to salvage an indemnification provision that would otherwise violate General Obligations Law § 5-322.1, would be contrary to the legislative intent. (Itri Brick & Concrete Corp. v Aetna Cas. & Sur. Co., 89 NY2d 786.) V. The cases cited by Judlau Contracting, Inc. generally do not support enforcement of partial indemnification based solely upon the phrase “to the fullest extent permitted by law.” (Murphy v Columbia Univ., 4 AD3d 200; 107 W. Apt. Corp. v K & J Restoration, 19 Misc 3d 1106[A], 2008 NY Slip Op 50570[U]; Rhodes-Evans v 111 Chelsea LLC, 44 AD3d 430; Jackson v City

      of New York, 38 AD3d 324; O’Connor v William Metrose Ltd. Bldr./Dev., 38 AD3d 1207; D’Allessandro v Lucent Tech., 16 Misc 3d 1125[A], 2007 NY Slip Op 51579[U]; Madeira v Affordable Hous. Found., Inc., 315 F Supp 2d 504; Reilly v Newireen Assoc., 303 AD2d 214; Balladores v Southgate Owners Corp., 40 AD3d 667; Reynolds v County of Westchester, 270 AD2d 473; Dutton v Pankow Bldrs., 99 NY2d 511.)
   OPINION OF THE COURT

Ciparick, J.

This appeal asks us to determine the question left open in Itri Brick & Concrete Corp. v Aetna Cas. & Sur. Co. (89 NY2d 786 [1997]) as to whether section 5-322.1 of the General Obligations Law allows a general contractor—who has been found to be partially at fault—to enforce an indemnification provision against its subcontractor for that portion of damages attributable to the negligence of the subcontractor. We conclude that the statute does permit a partially negligent general contractor to seek contractual indemnification from its subcontractor so long as the indemnification provision does not purport to indemnify the general contractor for its own negligence. As such, the provision is enforceable and does not violate General Obligations Law § 5-322.1.

An action for damages was brought by plaintiff, Stephen J. Brooks, an ironworker, against general contractor, Judlau Contracting, Inc., for injuries sustained on the job while employed by subcontractor, third-party defendant Thunderbird Constructors, Inc. The construction project involved the renovation and restoration of a highway overpass. Upon grabbing onto a perimeter safety cable installed by defendant, Judlau, the cable came loose causing plaintiff to fall 18 feet to the pavement below and sustain injury. Judlau asserted a third-party claim for contractual indemnification against Thunderbird. The action was bifurcated—a damages trial as to the underlying tort was tried by a jury and the third-party contractual indemnification claim by the court. Following trial, Supreme Court granted Thunderbird’s motion for a directed verdict dismissing Judlau’s third-party claim holding that Judlau’s installation of the safety cable in an “ineffective and unsafe manner” was a substantial factor in causing plaintiffs accident, that Judlau was accordingly actively negligent “at least to some degree” and that such negligence foreclosed Judlau’s entitlement to contractual indemnification from Thunderbird.

“[a] covenant, promise, agreement or understanding in, or in connection with ... a contract or agreement relative to the construction, alteration, repair or maintenance of a building . . . purporting to indemnify or hold harmless the promisee against liability for damage arising out of bodily injury to persons or damage to property contributed to, caused by or resulting from the negligence of the promisee, his agents or employees, or indemnitee, whether such negligence be in whole or in part, is against public policy and is void and unenforceable.”

The Appellate Division affirmed the dismissal of Judlau’s third-party complaint against Thunderbird (39 AD3d 447 [2007]). It held that General Obligations Law § 5-322.1 bars contractual indemnification and that the contractual provision at issue was unenforceable, and further that the evidence in the underlying tort action established that Judlau negligently installed a safety cable causing plaintiffs injury. The court certified a question of law as to whether its order was properly made insofar as it affirmed the dismissal of the third-party claim for contractual indemnification. We now reverse and answer the question in the negative.

There appears to be no dispute that Judlau is prohibited from filing a common-law contribution claim against Thunderbird because Thunderbird is plaintiffs employer and plaintiff did not sustain a grave injury within the meaning of Workers’ Compensation Law § 11. Judlau asserts, however, that a claim for contractual indemnification lies since Thunderbird’s negligence also contributed to plaintiffs injuries in that Thunderbird, having control of the workplace, failed to provide plaintiff with the necessary safety equipment to prevent his fall.

Unlike the indemnification provisions voided in Itri Brick, enforcement of the indemnification provision currently before us will not result in Judlau being indemnified for its own acts of negligence; rather, it is being indemnified only for those acts attributable to the subcontractor, Thunderbird. The indemnification provision of the agreement provides that

“[t]he Contractor shall not be liable for any loss or casualty incurred or caused by or to the Subcontractor. The Subcontractor shall maintain full and complete insurance on its work until final acceptance of the General Contract. The Subcontractor assumes all risk of loss for all of its work regardless of whether the Subcontractor had previously been paid for it. The Contractor is not responsible to provide any protective service for the Subcontractor’s benefit. The Subcontractor shall, to the fullest extent permitted by law, hold the Contractor and the Owner, their agents, employees and representatives harmless from any and all liability, costs, damages, attorneys’ fee, and expenses from any claims or causes of action of whatever nature arising from the Subcontractor’s work, including all claims relating to its subcontractors, suppliers or employees, or by reason of any claim or dispute of any person or entity for damages from any cause directly or indirectly relating to any action or failure to act by the Subcontractor, its representatives, employees, subcontractors, or suppliers. The Subcontractor acknowledges that specific consideration has been received by it for this Indemnification.”

Contrary to Thunderbird’s assertion, this provision does not violate General Obligations Law § 5-322.1 as it does not require Thunderbird to indemnify Judlau for its own negligence. The provision is clear, obligating Thunderbird to indemnify Judlau only when it is shown that damages were caused by Thunderbird’s own negligence.

As we stated in Itri Brick, the Legislature enacted General Obligations Law § 5-322.1 in order to

“prevent a prevalent practice in the construction industry of requiring subcontractors to assume liability by contract for the negligence of others. The Legislature concluded that such ‘coercive’ bidding requirements unnecessarily increased the cost of construction by limiting the number of contractors able to obtain the necessary hold harmless insurance, and unfairly imposed liability on subcontractors for the negligence of others over whom they had no control. The agreements also needlessly created expensive double coverage for hold harmless or general liability insurance” (89 NY2d at 794).

Since “[o]ne should not be held to answer for the wrongful acts of another unless he is in the insurance business, assuming risks in return for payment of premiums” (Sponsor’s Mem, Bill Jacket, L 1981, ch 964, 1981 NY Legis Ann, at 502), for us to hold today that a partially negligent general contractor may never seek contractual indemnification for the wrongful actions attributable to its subcontractor would leave the general contractor liable for the negligent actions of its subcontractor. Such an outcome would be contrary to the intent of General Obligations Law § 5-322.1 that payment of damages be made according to fault.

Thunderbird asserts that the language “to the fullest extent permitted by law” broadens the subcontractor’s liability to require full contractual indemnification, which includes indemnification for Judlau’s negligence and is thus rendered void by General Obligations Law § 5-322.1. We disagree. That language contemplates partial indemnification and is intended to limit Thunderbird’s contractual indemnity obligation solely to Thunderbird’s own negligence.

Our holding that the phrase “to the fullest extent permitted by law” limits rather than expands a promisor’s indemnification obligation is supported by the holdings of other courts that have likewise held that such phrases create a partial indemnification obligation on behalf of the subcontractor promisor. Recognizing that these precedents are not binding on us—and that there likewise are many decisions negating partial indemnification—we adopt the broader interpretation as the more sound. Indeed, there is no language within General Obligations Law § 5-322.1 that prevents partial indemnification provisions such as the one currently before us from being enforced in a case where it is shown that both a general contractor and its subcontractor are joint tortfeasors.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs, appellant Judlau’s third-party complaint against third-party defendant Thunderbird should be reinstated and this case remitted to Supreme Court for further proceedings in accordance with this opinion, and the certified question answered in the negative.

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

Order, insofar as appealed from, reversed, etc.

      . General Obligations Law § 5-322.1 (1) provides that:

      . Only an appeal from the dismissal of the third-party claim is before us. The direct action was remitted to Supreme Court for a new trial and has since settled for $3 million.

      . See TAG 380, LLC v ComMet 380, Inc., 10 NY3d 507, 512-513 (2008) (“it is a basic contract principle that ‘when parties set down their agreement in a clear, complete document, their writing should ... be enforced according to its terms’ ”), quoting Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d 470, 475 (2004), quoting W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 (1990).

      . See Dutton v Pankow Bldrs., 296 AD2d 321, 322 (1st Dept 2002) (phrases “ ‘to the fullest extent permitted by applicable law’ ” and “ ‘regardless of whether [the general contractor is] partially negligent . . . excluding] only liability created by the [general contractors’s] sole and exclusive negligence’ ” enforceable); Murphy v Columbia Univ., 4 AD3d 200, 202 (1st Dept 2004) (obligation was “ ‘to the fullest extent permitted by applicable law’ ”); Jackson v City of New York, 38 AD3d 324, 324 (1st Dept 2007) (same); Lesisz v Salvation Army, 40 AD3d 1050, 1051 (2d Dept 2007) (same); Balladares v Southgate Owners Corp., 40 AD3d 667, 671 (2d Dept 2007) (same); Bink v F.C. Queens Place Assoc., LLC, 27 AD3d 408, 409 (2d Dept 2006) (same); Madeira v Affordable Hous. Found., Inc., 315 F Supp 2d 504, 508-509 (SD NY 2004) (contractual indemnification language “ ‘[t]o the fullest extent permitted by law’ ” and “ ‘to the extent caused in whole or part by the Subcontractor’ ” is enforceable).


author: Graffeo, J.

text:
    [898 NE2d 545, 869 NYS2d 362]
    Eric Stringer, Appellant, v Barbara Musacchia, Individually and as Trustee of the John Musacchia Residual Trust B-1, et al., Respondents.
    Argued September 11, 2008;
    decided October 21, 2008

      POINTS OF COUNSEL

      Lewis & Stanzione, Catskill (Ralph C. Lewis, Jr., of counsel), for appellant.
    Plaintiff-appellant was an employee within the meaning of Labor Law § 240 (1). (Whelen v Warwick Val. Civic & Social Club, 47 NY2d 970; Tse Chin Cheung v G & M Hardware & Elec., 249 AD2d 28; Howerter v Dugan, 232 AD2d 524; Curatolo v Postiglione, 2 AD3d 480; Thompson v Marotta, 256 AD2d 1124.)

      Bailey, Kelleher & Johnson, P.C., Albany (Thomas J. Johnson of counsel), for respondents.
    Plaintiff is not a person to whom the Labor Law applies. (Whelen v Warwick Val. Civic & Social Club, 89 Misc 2d 577, 63 AD2d 646, 47 NY2d 970; Yearke v Zarcone, 57 AD2d 457; Thompson v Marotta, 256 AD2d 1124; Curatolo v Postiglione, 2 AD3d 480; Tse Chin Cheung v G & M Hardware & Elec., 249 AD2d 28; Howerter v Dugan, 232 AD2d 524; Vernum v Zilka, 241 AD2d 885.)
   OPINION OF THE COURT

Graffeo, J.

The strict liability provisions of Labor Law § 240 (1) apply to employees but not to persons who volunteer to work on a project. In this case, we are asked to decide whether plaintiff was entitled to section 240 (1) protection when he built a shed for an acquaintance while on a hunting trip. Based on the facts of this case, we conclude that plaintiff was not covered under the statute.

In 2001, defendant Barbara Musacchia was the sole trustee of the John Musacchia Residual Trust B-l that owned property in Greene County. Her son, John Musacchia, Jr., held hunting excursions on the land, including an annual turkey hunt in May. Frequently invited were celebrity guests who were filmed for television productions. Certain friends of Musacchia were invited as well, but these hunters were asked to do chores around the property in the afternoons following the morning hunts. All of the guests slept and ate in the residence located on the property.

Plaintiff Eric Stringer, a resident of Georgia, was an avid archer who met Musacchia at an archery exhibition. Stringer had experience in the construction industry and Musacchia hired him to construct a trade show display for the family’s archery company. Stringer was interested in joining the turkey hunt in May 2001 and Musacchia realized that extending the invitation could be beneficial—for some time he had wanted to erect an implement shed on the Greene County property to house machinery but an earlier $6,000 estimate from a local contractor had been rejected by his mother as too costly. After discussing the project with Stringer, Musacchia told him that he could participate in the hunt if he was willing to build the shed in the afternoons. Stringer agreed and purchased a plane ticket to New York, arriving in Greene County on or about May 1, 2001.

For more than a week after his arrival, Stringer hunted on the property and worked on the shed. Then, on May 10th, as he was standing on an extension ladder attempting to install a rafter, the ladder “kicked out” beneath him and he fell 8 to 10 feet to the ground onto a bag of concrete. Musacchia later found Stringer injured and drove him to a hospital, where doctors discovered that his Achilles tendon had been severed. Stringer returned home to Georgia for a series of surgeries.

Stringer commenced this action against Barbara Musacchia, individually and as trustee of the family trust, and the trust itself, asserting causes of action premised on common-law negligence and Labor Law §§ 200, 240 (1) and § 241. The parties cross-moved for summary judgment. Supreme Court granted defendants’ motion, in part, by dismissing the negligence and section 200 and 241 claims, but granted plaintiff summary judgment as to liability on the section 240 (1) cause of action, concluding that Stringer was entitled to the statute’s strict liability protections because he was acting as an “employee” when he was building the shed (2006 NY Slip Op 30432[U]). The Appellate Division, with two Justices dissenting, modified by dismissing the section 240 (1) claim, ruling that Stringer was a volunteer because he was not obligated to complete the shed and did not receive any monetary compensation (46 AD3d 1274 [2007]). Plaintiff appeals as of right on the two-Justice dissent, and we now affirm.

The primary purpose of Labor Law § 240 (1) is to extend special protections to “employees” or “workers” (see Mordkofsky v V.C.V. Dev. Corp., 76 NY2d 573, 577 [1990]; Zimmer v Chemung County Performing Arts, 65 NY2d 513, 520 [1985]). Inclusion in this “special class for whose benefit absolute liability is imposed” requires a plaintiff to “demonstrate that ‘he was both permitted or suffered to work on a building or structure and that he was hired by someone, be it [the] owner, contractor or their agent’ ” (Abbatiello v Lancaster Studio Assoc., 3 NY3d 46, 50-51 [2004], quoting Whelen v Warwick Val. Civic & Social Club, 47 NY2d 970, 971 [1979]). As a result, we have held that the statute does not apply to a volunteer who performs a service gratuitously (see Whelen v Warwick Val. Civic & Social Club, 47 NY2d at 971; Mordkofsky v V.C.V. Dev. Corp., 76 NY2d at 577). Aside from these references in Whelen and Mordkofsky, however, we have not had the opportunity to elaborate on what differentiates an employee from a volunteer.

Analysis of this issue requires consideration of the traditional parameters of employer-employee relationships in conjunction with the Legislature’s intent in enacting Labor Law § 240 (l). The term “employee” is statutorily defined as a “mechanic, workingman or laborer working for another for hire” (Labor Law § 2 [5] [emphasis added]). When a person has been hired, at least three factors are usually present. First, there is the voluntary undertaking of a mutual obligation—the employee agrees to perform a service in return for compensation (usually monetary) from the employer, thereby revealing an economic motivation for completing the task (see Black’s Law Dictionary 565 [8th ed] [an “employer” is the person who “pays the worker’s salary or wages”]). Second, although not an essential factor, an employer may exercise authority in directing and supervising the manner and method of the work (see e.g. Daniello v Holy Name Church, 286 AD2d 268, 269 [1st Dept 2001]; Black’s Law Dictionary 564 [8th ed] [a person is an “employee” if “the employer has the right to control the details of work performance”]). Third, the employer usually decides whether the task undertaken by the employee has been completed satisfactorily.

Corresponding with these aspects of employer-employee relations is the purpose that underlies Labor Law § 240 (1). In enacting the statute, the Legislature “intended to place ‘ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor’ rather than on the workers themselves” (Sanatass v Consolidated Inv. Co., Inc., 10 NY3d 333, 338 [2008], quoting Mem of Senator Calandra and Assemblyman Amann, 1969 NY Legis Ann, at 407). In addition, the Appellate Divisions have recognized that section 240 (1) was not intended to make owners strictly liable to family members, acquaintances or neighbors who are injured while assisting in the completion of a home repair or improvement project without compensation because no true employment obligation arises in such situations (see e.g. Schwab v Campbell, 266 AD2d 840 [4th Dept 1999]; Tse Chin Cheung v G & M Hardware & Elec., 249 AD2d 28 [1st Dept 1998]; Alver v Duarte, 80 AD2d 182 [3d Dept 1981]; Yearke v Zarcone, 57 AD2d 457 [4th Dept 1977]; cf. Thompson v Marotta, 256 AD2d 1124 [4th Dept 1998] [employment relationship found because the plaintiff agreed to do work in exchange for the defendant’s waiver of a security deposit and allowing the plaintiff to live in a home for two or three months without paying rent]). And even where the person who provides such assistance to a homeowner receives some ancillary, nonmonetary benefit in return and the homeowner is relieved of having to pay someone to complete the task, a formal employment relationship has not developed (see generally Howerter v Dugan, 232 AD2d 524 [2d Dept 1996]).

We believe that the reasoning of the Appellate Divisions is consistent with both the intent of the Labor Law and the plain meaning of the terms “employee” and “for hire.” Consequently, we hold that an individual does not become an employee covered by Labor Law § 240 (1) by providing casual, uncompensated assistance to another person with a repair or construction project in an informal arrangement that does not give rise to mutual duties or obligations between them and bears none of the traditional hallmarks of an employment relationship.

Applying this standard, Stringer was not defendants’ employee for purposes of section 240 (1) liability. Stringer was interested in pursuing a recreational activity—hunting turkeys—and in return for being allowed to participate in the hunt, he volunteered to construct a shed with no expectation of being paid a wage or salary. This was an informal arrangement between Stringer and Musacchia, and neither man assumed a contractual obligation to the other. Aside from paying for the materials used, Musacchia did not control or supervise Stringer’s efforts. Thus, Stringer was acting as a volunteer and not as an employee when he was injured. Defendants were therefore entitled to summary judgment dismissing the Labor Law § 240 (1) cause of action.

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

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

Order affirmed, with costs.

      . Labor Law § 240 (1) does not apply to “owners of one and two-family dwellings who contract for but do not direct or control the work” of the person(s) they hire. Defendants did not raise this as a defense so we have no occasion to determine its application to this case.

      . The statute also applies to independent contractors, but it is not alleged here that Stringer acted in this capacity.


text:
    [897 NE2d 1052, 868 NYS2d 570]
    The People of the State of New York, Respondent, v Delon Lucas, Appellant.
    Argued September 4, 2008;
    decided October 21, 2008

      POINTS OF COUNSEL

      Legal Aid Society Criminal Appeals Bureau, New York City (Joanne Legano Ross and Steven Banks of counsel), for appellant.
    The indictment, which double counted the victim’s death to elevate second degree kidnapping, which is not a predicate offense under Penal Law § 125.27 (1) (a) (vii), to first degree kidnapping, and thereby to qualify it as the foundation for a first degree felony murder charge, provided an inadequate justification for that charge under the rationale of People v Cahill (2 NY3d 14 [2003]). (Matter of New York City Asbestos Litig. [Brooklyn Nav. Shipyard Cases], 82 NY2d 342; New York State Bankers Assn. v Albright, 38 NY2d 430; People v Walker, 81 NY2d 661; FGL & L Prop. Corp. v City of Rye, 66 NY2d 111; People v Brown, 67 NY2d 555; People v Santorelli, 80 NY2d 875; People v Valenza, 60 NY2d 363; People v Mertz, 68 NY2d 136; People v Fullan, 92 NY2d 690; People v Miller, 6 NY3d 295.)

      Charles J. Hynes, District Attorney, Brooklyn (Keith Dolan and Leonard Joblove of counsel), for respondent.
    Defendant’s plea of guilty to first degree felony murder (Penal Law § 125.27 [1] [a] [vii]), based upon a first degree kidnapping during which the victim died (Penal Law § 135.25 [3]), was not foreclosed by this Court’s decision in People v Cahill (2 NY3d 14 [2003]). (People v Finnegan, 85 NY2d 53, 516 US 919; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; Matter of Theroux v Reilly, 1 NY3d 232; People v Garson, 6 NY3d 604; Matter of Erie County Agric. Socy. v Cluchey, 40 NY2d 194; Matter of Polan v State of N.Y. Ins. Dept., 3 NY3d 54; People v Robinson, 95 NY2d 179; Sega v State of New York, 60 NY2d 183; People v Jackson, 87 NY2d 782; People v Mateo, 2 NY3d 383.)
   OPINION OF THE COURT

Smith, J.

An intentional killing committed in the course of and in furtherance of kidnapping in the first degree is first degree murder (Penal Law § 125.27 [1] [a] [vii]), and an abduction during which the person abducted dies is first degree kidnapping (Penal Law § 135.25 [3]). Defendant, who was indicted for first degree murder based on his killing of a person he had abducted, argues that the indictment was legally insufficient because it “double counted” the death of the victim, relying on it both as an element of first degree murder and as an element of first degree kidnapping. We reject defendant’s argument.

I

Defendant was indicted for several crimes related to the abduction and death of Patrick Bhola. The first count accused him of murder in the first degree, alleging that defendant “with intent to cause the death of Patrick Bhola, caused the death of Patrick Bhola by stabbing and beating him about the body”; and that

“Patrick Bhola was killed while the defendant . . . was in the course of and in furtherance of committing the crime of kidnapping in the first degree . . . to wit: the defendant . . . abducted Patrick Bhola and Patrick Bhola died during the abduction and before he was able to return and be returned to safety.”

After a motion to dismiss the indictment was denied, defendant pleaded guilty to murder in the first degree and murder in the second degree. As part of the plea bargain, he signed a waiver of appeal, but the People agreed to an exception to the waiver allowing him to raise on appeal the argument he now advances. The Appellate Division affirmed (43 AD3d 1084 [2007]). A Judge of this Court granted leave to appeal (9 NY3d 1007 [2007]), and we now affirm.

II

Defendant argues that the facts stated in the indictment do not constitute the crime of first degree murder. This argument attacks the facial sufficiency of the accusatory instrument, and so is not forfeited by defendant’s guilty plea (People v Taylor, 65 NY2d 1, 5 [1985]), but it fails on the merits.

Penal Law § 125.27 says, in relevant part:

“A person is guilty of murder in the first degree when:
“1. With intent to cause the death of another person, he causes the death of such person or of a third person; and
“(a) . . .
“(vii) the victim was killed while the defendant was in the course of committing . . . and in furtherance of. . . kidnapping in the first degree.”

Penal Law § 135.25 says, in relevant part:

“A person is guilty of kidnapping in the first degree when he abducts another person and when . . .
“3. The person abducted dies during the abduction or before he is able to return or to be returned to safety.”

The indictment in this case tracks the language of these statutes. It alleges the elements of murder in the first degree, including a killing “in the course of’ and “in furtherance of’ a first degree kidnapping, and it also alleges the elements of first degree kidnapping, including the abduction and the death of the person abducted. Defendant argues that the indictment is nevertheless insufficient because it violates a rule against “double counting” that defendant finds in People v Cahill (2 NY3d 14 [2003]). Defendant reads Cahill too broadly.

Cahill was indicted for first degree murder based on a killing committed in the course of, and in furtherance of, burglary in the second degree (2 NY3d at 62-63). It is an element of second degree burglary that the person committing it “enters or remains unlawfully in a building with intent to commit a crime therein” (Penal Law § 140.25). The crime that Cahill intended to commit when he entered the building was the murder he in fact committed; thus, the same criminal intent supported both the murder charge and the aggravating factor, the burglary. Reversing Cahill’s first degree murder conviction, we accepted his argument “that this circularity is impermissible” (2 NY3d at 64). In this case, defendant says that a similar “circularity” exists, because the victim’s death is an element both of first degree murder and of the predicate kidnapping crime. We disagree.

Cahill did not hold that, in first degree felony murder cases, the murder and the predicate felony can have no common elements. The problem in Cahill was the double counting of one criminal intent. We said that Cahill’s “conviction cannot stand because the burglary carried no intent other than to commit the murder” (id. at 62 [emphasis added]). We explained that, in defining first degree murder—a crime which could make a defendant eligible for the death penalty—the Legislature required murder and “[a]n additional aggravating factor—murder ‘plus’ ” (id. at 64). But where “the very same mens rea—the intent to kill” was used to define both the murder and the aggravating factor, the legislative goal of “narrowing rather than expanding the class of defendants eligible for the death penalty” had not been achieved (id. at 64, 65). The gist of Cahill is that where only one criminal intent, the intent to kill, is shown, defendant’s crime has not been “aggravated” to first degree murder.

That is not true here. Here, the murder defendant committed and the predicate crime that serves as an aggravation arise from two distinct intents—the intent to kill the victim and the intent to abduct him. The intent to abduct aggravated the crime of murder, and defendant is thus a member of that class of murderers whose crime is significantly worse than ordinary murder—“murder plus.” It is of no moment that a factual circumstance other than defendant’s intent—in this case, the victim’s death—is an element of both the murder and the predicate felony. Cahill is satisfied by the showing of a second criminal intent.

The result defendant seeks here would contradict the obvious intention of the authors of the first degree murder statute. The authors specifically included kidnapping in the first degree as a predicate crime, and one of the three subdivisions of the first degree kidnapping statute (Penal Law § 135.25 [3]) applies only in cases where the victim dies. On defendant’s reading, the Legislature intended to exclude virtually all section 135.25 (3) kidnappings from the first degree murder statute—all except those in which the person abducted dies and the kidnapper murders someone else. Surely, if the Legislature had such an intention it would have said so more plainly. Indeed, that intention is an unlikely one to attribute to the Legislature—an intention to punish one of the most heinous of crimes, kidnapping accompanied by murder of the victim, less severely than many other murders.

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

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

Order affirmed.