author: Graffeo, J. R.S. Smith, J.

text:
    [833 NE2d 266, 800 NYS2d 123]
    C.S.A. Contracting Corp., Appellant, v New York City School Construction Authority, Respondent.
    Argued June 8, 2005;
    decided July 6, 2005

      POINTS OF COUNSEL

      Martin S. Dorfman, Woodbury, for appellant.
    The notice of claim herein was properly and timely served and, therefore, the trial court erred in dismissing appellant’s complaint. (New York City Constr. Auth. v Kallen & Lemelson, 290 AD2d 497; Koren-DiResta Constr. Co. v New York City School Constr. Auth., 293 AD2d 189; Scantron Corp. v New York City Bd. of Educ., 3 Misc 3d 1042; Philson Painting Co. v William Floyd Union Free School Dist., 202 AD2d 653, 84 NY2d 850; Popular Constr. v New York City School Constr. Auth., 268 AD2d 467; Shalman v Board of Educ. of Cent. School Dist. No. 1 of Towns of Thompson, Bethel, Forestburg, Mamakating & Fallsburgh, 31 AD2d 338; Matter of Board of Educ. of Enlarged Ogdensburg City School Dist. [Wager Constr. Corp.], 37 NY2d 283; P & C Giampilis Contr. Co. v New York City School Constr. Auth., 211 AD2d 524; Matter of SBR Roofing v Richfield Springs Cent. School Dist., 303 AD2d 886; Vines v New York City Tr. Auth., 107 Misc 2d 283.)

      Michael A. Cardozo, Corporation Counsel, New York City (<Janet L. Zaleon and Kristin M. Helmers of counsel), for respondent.
    The Appellate Division properly affirmed the dismissal of the complaint. Plaintiff did not adduce sufficient evidence that it served a timely notice of claim on the New York City School Construction Authority within three months after plaintiff had substantially completed its work and submitted its invoice to the Authority for payment. (Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539; O’Brien v City of Syracuse, 54 NY2d 353; Matter of Board of Educ. of Enlarged Ogdensburg City School Dist. [Wager Constr. Corp.], 37 NY2d 283; Popular Constr. v New York City School Constr. Auth., 268 AD2d 467; Poppe Gen. Contr. v Town of Ramapo, 280 AD2d 667; Nicholas v City of New York, 130 AD2d 470; Cappadonna v New York City Tr. Auth., 187 AD2d 691, 81 NY2d 704; New York City School Constr. Auth. v Kallen & Lemelson, 290 AD2d 497; Koren-

      DiResta Constr. Co. v New York City School Constr. Auth., 293 AD2d 189; G.A. Contrs. v Board of Educ. of City of N.Y., 176 AD2d 856.)
   OPINION OF THE COURT

Graffeo, J.

The issue here is whether plaintiff C.S.A. Contracting Corp. timely filed a notice of claim pursuant to Public Authorities Law § 1744 (2) in this breach of contract action seeking payment from defendant New York City School Construction Authority for work it performed. Under the facts and circumstances of this case, we conclude that the notice of claim was not timely because it was not submitted within three months of the accrual of the claims.

In 1993, the New York City School Construction Authority (SCA) and plaintiff entered into a contract in which SCA agreed to pay plaintiff $1 million to perform asbestos abatement work at various city schools. The project included asbestos removal at PS 29 in Staten Island. On December 3, 1993, plaintiff submitted a request for payment for extra work performed at PS 29 in the amount of $151,994.96. SCA apparently approved the request in February 1994, but two months later informed plaintiff that it would not remit payment for the PS 29 job because it determined that plaintiff had overcharged for abatement work at another work site—Bushwick High School.

On May 9, 1994, plaintiff purportedly served a notice of claim on SCA seeking monies it contended were owed under its contract. Plaintiff subsequently issued a notice of dispute on June 30, 1994 requesting to mediate its payment claim with SCA. After mediation failed to resolve the conflict, plaintiff submitted a notice of claim dated September 21, 1994. This notice of claim sought the payment of $595,850 for three categories of work performed by plaintiff: asbestos abatement at PS 29, additional costs incurred in the removal of asbestos from heights in excess of 14 feet, and wet cleaning and encapsulation expenses.

Plaintiff commenced this breach of contract action against SCA in April 1995 to recover damages for the claims outlined in its notice of claim, alleging that it had furnished SCA with notice in June 1994 and again in September 1994. In its answer, SCA interposed an affirmative defense that plaintiff had failed to properly serve a notice of claim. SCA also counterclaimed for the alleged overpayment for work performed at Bushwick High School.

At trial, plaintiff was unable to submit documentary evidence corroborating the service of a notice of claim in May 1994. Its former corporate president testified that all work at PS 29 was completed before December 1993. At the close of plaintiffs case, SCA moved to dismiss the complaint for failure to present a timely notice of claim. Supreme Court granted the motion and dismissed the complaint, holding that plaintiff did not submit a notice of claim within three months of the accrual of its claims. The court also severed SCA’s counterclaim. The Appellate Division affirmed. We granted plaintiff leave to appeal and now concur that plaintiffs complaint must be dismissed.

Section 1744 (2) of Public Authorities Law provides, in part:

“No action or proceeding for any cause whatever, other than the one for personal injury, death, property damage or tort . . . relating to the design, construction, reconstruction, improvement, rehabilitation, repair, furnishing or equipping of educational facilities, shall be prosecuted or maintained against [SCA] . . . unless (i) it shall appear by and as an allegation in the complaint or moving papers, that a detailed, written, verified notice of each claim upon which any part of such action or proceeding is founded was presented to the board within three months after the accrual of such claim . . . .”

A timely notice of claim is a condition precedent to maintaining an action against SCA, and the plaintiff has the obligation to plead and prove that its notice of claim was served within three months after the accrual of its claim (see generally Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 547 [1983]; Rogers v Village of Port Chester, 234 NY 182, 185 [1922]).

It is well settled that a contractor’s claim accrues when its damages are ascertainable (see Matter of Board of Educ. of Enlarged Ogdensburg City School Dist. [Wager Constr. Corp.], 37 NY2d 283, 290 [1975]). Although the determination of the date on which damages are ascertainable may vary based on the facts and circumstances of each particular case, “it generally has been recognized that damages are ascertainable once the work is substantially completed or a detailed invoice of the work performed is submitted” (New York City School Constr. Auth. v Kallen & Lemelson, 290 AD2d 497 [2d Dept 2002] [internal quotation marks and citations omitted]).

Here, plaintiff completed its work at PS 29 some time before December 1993, and finished its rehabilitation project entirely by the close of 1993. Plaintiff also submitted a detailed invoice for work done at PS 29 on December 3, 1993. Therefore, plaintiffs claims were ascertainable and accrued by the end of 1993. Even assuming plaintiff served a notice of claim in May 1994 or that its June 1994 notice of dispute could be viewed as a proper notice of claim, it failed to present statutorily-mandated notice within three months of the accrual of its claims. Thus, the courts below properly dismissed the complaint.

Plaintiff argues that its claims should be deemed to have accrued, at the earliest, when SCA denied payment in April 1994. In support of this argument, plaintiff notes that the Legislature has adopted this rule in Education Law § 3813 (1), which applies to claims against school districts. In 1992, the Legislature amended Education Law § 3813 (1) to provide: “In the case of an action or special proceeding for monies due arising out of contract, accrual of such claim shall be deemed to have occurred as of the date payment for the amount claimed was denied” (L 1992, ch 387). Thus, instead of using the date that damages are ascertainable under the Wager analysis, the three-month notice of claim time period is not triggered until the board of education denies payment. Section 1744 (2) of the Public Authorities Law—in existence at the time of the amendment—was not, however, similarly amended, and we decline plaintiffs invitation to engraft such a provision onto that statute. Any such change should come from the Legislature.

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

R.S. Smith, J.

(concurring). I join the Court’s opinion, but also write separately to express my views on our decision in Matter of Board of Educ. of Enlarged Ogdensburg City School Dist. (Wager Constr. Corp.) (37 NY2d 283 [1975]).

In Wager, we interpreted Education Law § 3813 (1), which, like Public Authorities Law § 1744 (2), provides that a notice of claim must be presented “within three months after the accrual of such claim.” We held in Wager that “accrual” of a “claim” occurs when a contractor’s damages are ascertainable, even if no “cause of action” has yet accrued because no one has disputed the amount of the contractor’s bill. Wager was based on questionable logic, and has led to unfortunate results.

In support of its distinction between accrual of a claim and accrual of a cause of action, Wager cited three Appellate Division decisions: Shalman v Board of Educ. of Cent. School Dist. No. 1 (31 AD2d 338 [3d Dept 1969]), Waterman v State of New York (19 AD2d 264 [4th Dept 1963], affd without op 14 NY2d 793 [1964], 17 NY2d 613 [1966]), and Terrace Hotel Co. v State of New York (19 AD2d 434 [3d Dept 1963]). In each of these cases, the claim was held to have accrued after the cause of action accrued, and the court relied on the distinction between a claim and a cause of action to hold that the contractor’s claim was timely. The gist of the holdings in the three Appellate Division cases is that, when a dispute between the parties has arisen and a cause of action has therefore accrued, the contractor should still not have to submit its claim until it can know what its damages are.

But Wager relied on the distinction between claim and cause of action to reject a contractor’s claim—holding that a contractor must submit a notice of claim within 90 days of determining the amount it is owed, even when the obligation to pay that amount has never been disputed. We did not explain in Wager, and so far as I know no one has ever explained, why this result makes sense. It might have been logical to hold that a claim accrues upon the later of the two events—accrual of a cause of action and ascertainment of damages—but we did not discuss that possibility in Wager.

The result of the Wager holding is that contractors sometimes find themselves in the position of plaintiff in this case, whose claim was time-barred before there was any reason to expect litigation. This anomaly has troubled the courts (see e.g., Koren-DiResta Constr. Co. v New York City School Constr. Auth., 293 AD2d 189 [1st Dept 2002]); indeed, both Supreme Court and the Appellate Division in this case expressed distaste for the result they were forced to reach. The Legislature was troubled too, and in 1992 it amended Education Law § 3813 (1) to provide that “accrual” of a claim “shall be deemed to have occurred as of the date payment for the amount claimed was denied” (L 1992, ch 387). The sponsors’ mémorandum in support of this amendment was highly critical of cases applying the rule of Wager: “The courts’ interpretation . . . makes no sense” (Mem in Support, Bill Jacket, L 1992, ch 387). But while Wager, insofar as it applies to Education Law cases, was thus legislatively overruled, the Legislature made no corresponding amendment to Public Authorities Law § 1744 (2), the statute involved in this case.

We hold today that Wager remains the law. It has stood for 30 years, and the Legislature, while overruling it in the Education Law context, has left the corresponding provision of the Public Authorities Law unaltered. There is no obvious reason, however, why the Legislature should not amend the latter statute in the same way it amended the former, and thus put an end to the Wager rule.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Read and R.S. Smith concur with Judge Graffeo; Judge R.S. Smith concurs in a separate concurring opinion.

Order affirmed, with costs.

       Plaintiffs former corporate president testified that SCA initially refused to pay any contractor for wet cleaning and encapsulation costs, but that, at some point “[l]ater on,” it changed its posture in a letter and allowed such costs. Plaintiff did not place this correspondence in evidence or otherwise offer testimony as to the date of this change in position. Even if, as plaintiff suggests, the date of such change in position constituted the accrual date for this category of work claimed, plaintiff failed to satisfy its burden of establishing that its September 1994 notice of claim—the only notice that mentioned wet cleaning and encapsulation costs—was submitted within three months of the alleged modification by SCA regarding work eligible for payment.


source: Caselaw Access Project

author: Read, J.

license: Public Domain

text:
    [833 NE2d 698, 800 NYS2d 363]
    In the Matter of Katherine B. et al., Appellants, v John Cataldo et al., Respondents.
    Argued June 2, 2005;
    decided July 6, 2005

      POINTS OF COUNSEL

      Law Offices of Stephen W. Edwards, Brooklyn (Stephen W. Edwards of counsel), for appellants.
    I. Unsealing dismissed cases for sentencing purposes served no interest of justice since dismissed cases are a nullity which the court has held do not become part of an accused’s criminal pedigree. (Matter of Alonzo M. v New York City Dept. of Probation, 72 NY2d 662; People v Villanueva, 144 AD2d 285, 73 NY2d 897; People v Key, 45 NY2d 111; Hollender v Trump Vil. Coop., 58 NY2d 420; People v Smith, 305 AD2d 432; People v Ferere, 294 AD2d 596; People v Ramsey, 288 AD2d 240; People v Innis, 288 AD2d 236; People v Santiago, 277 AD2d 258; People v Varlack, 259 AD2d 392.) II. The dismissal of appellants’ CPLR article 78 petition was procedural error as the petition fell squarely within article 78 jurisprudence. (Matter of Lee v County Ct. of Erie County, 27 NY2d 432; Matter of Culver Contr. Corp. v Humphrey, 268 NY 26; Matter of Blake v Hogan, 25 NY2d 747; Matter of Watts v Supreme Ct. of State of N.Y., 36 AD2d 17, 28 NY2d 714; La Rocca v Lane, 37 NY2d 575, 424 US 968; People v Hines, 260 AD2d 646; Matter of Wiley v Altman, 52 NY2d 410; Matter of Barber v Rubin, 72 AD2d 347; Matter of Alonzo M. v New York City Dept. of Probation, 72 NY2d 662.) III. Allowing the unsealing ex parte violated appellants’ fundamental right to be present at proceedings affecting guilt or punishment. (People v Antommarchi, 80 NY2d 247; People v Sloan, 79 NY2d 386; People v Blount, 116 Misc 2d 975.)

      Robert M. Morgenthau, District Attorney, New York City (Larry

      A. Glasser, Mark Dwyer and Sean J. Sullivan of counsel), for respondents.
    I. CPLR article 78 is not a proper procedure for petitioners to seek relief. (Matter of Lipari v Owens, 70 NY2d 731; Matter of Legal Aid Socy. of Sullivan County v Scheinman, 53 NY2d 12; La Rocca v Lane, 37 NY2d 575; Matter of State of New York v King, 36 NY2d 59; Matter of Hynes v Karassik, 47 NY2d 659; People v Anonymous, 7 AD3d 309; People v Public Serv. Mut. Ins. Co., 37 NY2d 606; People v Purley, 297 AD2d 499; Matter of Veloz v Rothwax, 65 NY2d 902; Matter of Dondi v Jones, 40 NY2d 8.) II. Regardless of whether petitioners raise these issues in a CPLR article 78 proceeding or on direct appeal, respondents’ actions were entirely proper. (Hollender v Trump Vil. Coop., 58 NY2d 420; Matter of Joseph M., 82 NY2d 128; Matter of Hynes v Karassik, 47 NY2d 659; Matter of Alonzo M. v New York City Dept. of Probation, 72 NY2d 662; People v Patterson, 78 NY2d 711; Matter of Wayne M., 121 Misc 2d 346; People v Villanueva, 144 AD2d 285; People v Naranjo, 89 NY2d 1047; People v Mason, 299 AD2d 724; People v Bratcher, 291 AD2d 878.) III. Petitioners’ arguments that their due process and privacy rights were violated and that CPL 160.50 is unconstitutional are unpreserved and without merit. (People v Kello, 96 NY2d 740; People v Salazar, 136 Misc 2d 992; People v Blount, 116 Misc 2d 975; People v Antommarchi, 80 NY2d 247; People v Sloan, 79 NY2d 386.)

      Legal Aid Society, New York City (Steven Banks and Robert C. Newman of counsel), amicus curiae.
    I. The unsealing of the records of appellants’ previously dismissed cases, under the circumstances presented by this appeal, clearly violated New York law. (Matter of Alonzo M. v New York City Dept. of Probation, 72 NY2d 662; Matter of Hynes v Karassik, 47 NY2d 659; People v Felix, 58 NY2d 156; Matter of New York State Police v Charles Q., 192 AD2d 142; Matter of Police Commr. of City of N.Y. v Patrick M., 131 Misc 2d 695; People v Blount, 116 Misc 2d 975; People v Castillo, 80 NY2d 578; Matter of Joseph M., 82 NY2d 128; Matter of Dondi, 63 NY2d 331; People v Perez, 195 Misc 2d 171.) II. CPLR article 78 is an appropriate vehicle for granting appellants relief from Justice Cataldo’s unlawful order unsealing the records. (Matter of Pirro v Angiolillo, 89 NY2d 351; Matter of Alonzo M. v New York City Dept. of Probation, 72 NY2d 662; Matter of Rush v Mordue, 68 NY2d 348; Matter of Dondi v Jones, 40 NY2d 8; People v Michael, 48 NY2d 1.) III. This Court should hold that the Criminal Court, when sentencing appellants, may not consider any information or allegations derived from the improperly unsealed case files. (People v

      Naranjo, 89 NY2d 1047; Matter of Alonzo M. v New York City Dept. of Probation, 72 NY2d 662; People v Patterson, 78 NY2d 711.)
   OPINION OF THE COURT

Read, J.

This appeal calls upon us to decide whether CPL 160.50 (1) (d) (ii) authorizes a superior court to make sealed records available to a prosecutor for purposes of making sentencing recommendations. In light of the limitations placed by the Legislature on unsealing, we conclude that it does not.

I.

On March 26, 2003, the four petitioners participated in a political demonstration near the intersection of Fifth Avenue and 47th Street in Manhattan, staged at the height of the morning rush hour. Wearing matching shirts with identical, preprinted signs and dabbed with fake blood, 11 demonstrators lay down across Fifth Avenue, their arms yoked together by an elaborate system of custom-cut plastic piping, metal chains, carabiners and handcuffs. A demonstrator at one end of this human chain padlocked his free hand around a fixed garbage can on the sidewalk. The demonstrator at the other end was in the midst of doing the same thing when police arrived. Other demonstrators stood in the street, holding up stop signs in the face of oncoming traffic. Demonstrators also positioned a “bulldozer” that they had fabricated out of wood and metal in the center lanes of Fifth Avenue, and one of the petitioners padlocked herself to it.

This eye-catching scene, orchestrated to take New York City officials by surprise, effectively shut down Fifth Avenue, creating massive traffic disruptions in midtown Manhattan and diverting large numbers of police and other public safety officials from their regular duties. In order to clear the street, emergency services officers were forced to use electric saws to cut through the plastic piping linking the human chain.

Nearly a year later, on March 22, 2004, and following a week-long trial in Criminal Court, a jury found each of the four petitioners and 12 fellow demonstrators guilty of one count of obstructing governmental administration in the second degree (Penal Law § 195.05) and two counts of disorderly conduct (Penal Law § 240.20 [5], [6]). Obstructing governmental administration in the second degree is a class A misdemeanor punishable by a sentence of imprisonment not to exceed one year; disorderly conduct is a violation punishable by a sentence of imprisonment not to exceed 15 days.

Criminal Court adjourned sentencing and directed the People to supply it with updated criminal histories or “rap sheets” in support of their sentencing recommendations. To comply with Criminal Court’s instruction, the assistant district attorney conducted a computer search, which revealed numerous docket numbers for prior criminal cases involving petitioners. The search results, however, included no factual information relating to these cases, and, in fact, indicated that the records were sealed. Accordingly, on March 29 and March 31, 2004, the People moved ex parte in Supreme Court pursuant to CPL 160.50 (1) (d) (ii) and 160.55 (1) (d) (ii) to unseal records corresponding to docket or arrest numbers associated with petitioners.

The People advised Supreme Court that justice required the unsealing of petitioners’ records because “[t]he details of these matters, and their dispositions, [were] pertinent and relevant information for the [Criminal] Court to consider in determining an appropriate sentence,” citing CPL 380.50 (1) and 390.40 (1). Supreme Court granted the People’s motions and issued the unsealing orders. The unsealed records related to convictions for violations, adjournments in contemplation of dismissal and procedural dismissals.

On April 9, 2004, the People submitted sentencing recommendations to Criminal Court for petitioners as well as for the 12 other convicted demonstrators. The People informed the court of more than 20 prior acts of civil disobedience undertaken by petitioners, based principally on allegations taken from complaints filed with Criminal Court at petitioners’ arraignments in the unsealed cases. The People argued that, in light of these past experiences, petitioners certainly knew that their actions on March 26, 2003 would disrupt and affect thousands of people and force the police department to expend substantial resources to apprehend them. Accordingly, the People differentiated between petitioners and other convicted demonstrators, recommending an unspecified period of incarceration as part of petitioners’ sentences.

By order to show cause, petitioners on April 28, 2004 asked Supreme Court to vacate its unsealing orders, to reseal petitioners’ records, and to preclude the People from using information obtained from the sealed records in the pending Criminal Court sentencing. On May 14, 2004, Supreme Court issued a written decision and order rejecting petitioners’ contention that CPL 160.50 (1) (d) (ii) and 160.55 (1) (d) (ii) authorize unsealing only “for investigatory purposes rather than to assist a court in a sentencing proceeding upon a subsequent conviction.” Supreme Court cautioned, however, that “[i]t remains the domain of the sentencing judge ... to ascertain . . . whether the factual allegations obtained from the unsealed dockets meet[ ] the test of reliability and accuracy necessary to merit any consideration by that court.”

On May 23, 2004, petitioners filed a CPLR article 78 petition in the Appellate Division, which the Court dismissed on September 21, 2004 “without prejudice to raising the same or similar arguments on direct appeal from a judgment of conviction” (10 AD3d 544 [1st Dept 2004]). We subsequently granted leave to appeal,and now reverse.

II.

As relevant to this appeal, CPL 160.50 provides that upon termination of a criminal action or proceeding in favor of the accused, “the record of such action or proceeding shall be sealed” by the clerk of the court “unless the court has directed otherwise” in the interests of justice upon motion of the district attorney or on its own motion and for reasons stated on the record (CPL 160.50 [l]). The sealing covers “all official records and papers, including judgments and orders of a court but not including published court decisions or opinions or records and briefs on appeal, relating to the arrest or prosecution, including all duplicates and copies thereof, on file with the division of criminal justice services, any court, police agency, or prosecutor’s office” (CPL 160.50 [1] [c]; see Matter of Harper v Angiolillo, 89 NY2d 761 [1997] [there are no bright-line rules defining those items qualifying as “official records and papers”]).

“The sealing requirement was designed to lessen the adverse consequences of unsuccessful criminal prosecutions by limiting access to official records and papers in criminal proceedings which terminate in favor of the accused” (Harper, 89 NY2d at 766). “That detriment to one’s reputation and employment prospects often flows from merely having been subjected to criminal process has long been recognized as a serious and unfortunate by-product of even unsuccessful criminal prosecutions. The statute’s design is to lessen such consequences” (Hynes, 47 NY2d at 662 [citations omitted]).

Consistent with this design and the “plain intendment of the statutory scheme,” the “general proscription against releasing sealed records and materials [is] subject only to a few narrow exceptions” (Matter of Joseph M. [New York City Bd. of Educ.], 82 NY2d 128, 134 [1993] [confining inherent judicial authority to unseal records, which exists in the absence of statutory authorization and was recognized in Hynes and endorsed in Matter of Dondi (63 NY2d 331 [1984]), to Appellate Division’s responsibility for discipline of attorneys pursuant to Judiciary Law § 90]; see also Harper, 89 NY2d at 767 [“CPL 160.50 balances the rights of a former defendant to restrict and obtain access to official records and papers in favorably terminated criminal proceedings, against the interests of various law enforcement agencies and representatives in the same materials,” and “strikes the balance by requiring sealing in a wide variety of contexts and providing for the disclosure of sealed files in only limited circumstances”]).

Accordingly, in addition to the accused or his designated agent, a court may make sealed records available only to a “prosecutor in any proceeding in which the accused” has moved for an adjournment in contemplation of dismissal in a case involving marijuana charges below felony grade (CPL 160.50 [1] [d] [i]), a benefit that the accused may obtain only once (see CPL 170.56, 210.46); to “a law enforcement agency upon ex parte motion in any superior court, if such agency demonstrates to the satisfaction of the court that justice requires” disclosure (CPL 160.50 [1] [d] [ii]); to state or local gun licensing agencies when the accused applies for a gun license (CPL 160.50 [1] [d] [iii]); to the New York State Division of Parole when the arrest occurred while the accused was under parole supervision (CPL 160.50 [1] [d] [iv]); to the prospective employer of a police officer or peace officer, provided that the applicant shall be furnished a copy of all records obtained and given an opportunity to explain (CPL 160.50 [1] [d] [v]); and to any probation department responsible for the accused’s supervision when the arrest occurred (CPL 160.50 [1] [d] [vi]).

These six statutory exceptions are precisely drawn. This underscores the Legislature’s commitment to prohibiting disclosure of sealed records—once initial sealing has not been forestalled by the court in the interests of justice—except where the statute explicitly provides otherwise. Thus, this case boils down to whether the “law enforcement agency” exception in CPL 160.50 (1) (d) (ii) is broad enough to encompass an ex parte request by a prosecutor to unseal records for purposes of making sentencing recommendations. We conclude that it is not.

This exception allows sealed records to be made available to a “law enforcement agency,” a term undefined in section 160.50 and in CPL 1.20, which includes terms of general usage in the chapter. Within section 160.50 itself, the term “law enforcement agency” always appears in conjunction with the terms “police department” and/or “the division of criminal justice services,” except in subdivision (1) (d) (ii) (see e.g. CPL 160.50 [1] [clerk of court must give notice of favorable termination to “the commissioner of the division of criminal justice services and the heads of all appropriate police departments and other law enforcement agencies” (emphasis added)]; see also CPL 160.50 [1] [a], [b]; [3] [h], [i]). The term “law enforcement agency” therefore includes law enforcement entities in addition to police departments and the Division of Criminal Justice Services.

The legislative history of section 160.50 (1) (d) confirms that a broad range of law enforcement entities have been viewed as eligible to make ex parte motions to superior courts for unsealing orders for a variety of law enforcement purposes. In fact, the burden of proceeding under CPL 160.50 (1) (d) (ii) is what prompted the Legislature to carve out the exceptions in CPL 160.50 (1) (d) (iv), (v) and (vi). Proponents of these three exceptions successfully argued that they should enjoy automatic exemption because evaluating applicants for police or peace officer positions or keeping tabs on parolees and probationers required routine access to sealed records, and resort to the “law enforcement agency” exception was time-consuming and unnecessary (see e.g. Mem of Division of Parole, Bill Jacket, L 1981, ch 122 [with responsibility for roughly 19,000 parolees or conditional releasees annually, “the present provision for obtaining (sealed) records (under CPL 160.50 [1] [d] [ii]) ... is cumbersome, time-consuming and an unreasonable burden”]; see also Letter from Suffolk County Deputy County Executive Howard DeMartini to Gerald C. Crotty, Counsel to the Governor, June 6, 1985, Bill Jacket, L 1985, ch 208, at 24 [“To perform an adequate investigation of the applicant (for a police officer position), all pertinent information should be made available .... However, under existing law, an applicant can have sealed court records kept out of the legal reach of the (Suffolk County Police Department Investigation) Unit. If the Unit wishes to see the sealed records, they must get special court authorization for each case”]; Letter from Assemblyman Daniel Feldman to Governor Mario M. Cuomo, June 26, 1986, Bill Jacket, L 1986, ch 294, at 10 [“Information contained in these (sealed) records is often relevant to determinations concerning the conduct of the individuals whose supervision is the responsibility of the probation departments, and immediate access would greatly enhance the value to (sic) this information. This is especially the case when a ‘violation of probation’ proceeding is being contemplated’ ’]).

The statute’s provisions strongly suggest that its primary focus is the unsealing of records for investigatory purposes. By way of analogy, for example, applications for eavesdropping or video surveillance warrants—always used as investigative tools and always filed prior to commencement of a criminal proceeding—are similarly directed to “a justice . . . upon ex parte application” (CPL 700.10 [1]). The same is true for applications for a pen register and trap and trace devices (see CPL 705.15 [1]). More to the point for purposes of this appeal is the contrast between CPL 160.50 (1) (d) (i) and CPL 160.50 (1) (d) (ii). The former authorizes disclosure to a “prosecutor” in a “proceeding”; the latter simply to a “law enforcement agency”; the word “proceeding” does not appear in clause (ii). Thus, the Legislature has limited a court’s authority to make sealed records available to a prosecutor after commencement of a criminal proceeding to the singular circumstance delineated in CPL 160.50 (1) (d) (i)—where the accused has moved for an adjournment in contemplation of dismissal in a case involving marijuana charges below felony grade, a benefit that an accused may obtain only once.

Accordingly, the order of the Appellate Division should be reversed, without costs, the unsealing orders vacated and the records resealed.

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

Order reversed, etc.

      . CPLR article 78 is not the proper procedural vehicle for the relief sought here because petitioners do not challenge a public official’s ministerial acts or actions taken in excess of authority (see Matter of Crain Communications v Hughes, 74 NY2d 626 [1989]). As the People acknowledge, petitioners could have properly sought judicial review of the unsealing of petitioners’ records by timely civil appeal (see Matter of Hynes v Karassik, 47 NY2d 659, 661 n 1 [1979]; see also People v McLoughlin, 65 NY2d 687 [1985]). Contrary to the People’s position, however, the initial unsealing orders were not the proper appealable papers because they were obtained by ex parte application (see Sholes v Meagher, 100 NY2d 333, 335 [2003]). In order to create an appealable paper, a motion on notice to vacate was needed (see Siegel, NY Prac § 244, at 412 [4th ed]), and petitioners promptly made such a motion. Petitioners filed their CPLR article 78 petition nine days after Supreme Court issued its decision and order denying their motion to vacate and reseal. Moreover, petitioners served the petition on the same individuals who would have been parties on appeal and included the same materials in the petition as would have comprised the appellate record. In light of these particular circumstances, we have converted this CPLR article 78 proceeding into the proper form, which is a civil appeal (see CPLR 103 [c]).

      . The Appellate Division granted petitioners a stay of sentencing pending its decision. The People consented to a continuing stay pending resolution of this appeal.

      . As previously noted, the People also sought and obtained unsealing orders pursuant to CPL 160.55 (1) (d) (ii). CPL 160.55 covers the sealing of arrest and prosecution records related to convictions of petty offenses with some exceptions. Petitioners do not on this appeal contest any unsealing orders issued by Supreme Court pursuant to CPL 160.55 (1) (d) (ii), which is identical to CPL 160.50 (1) (d) (ii).

      . As originally enacted (see L 1976, ch 877), section 160.50 called for sealing unless the district attorney moved to prevent it or another criminal action or proceeding was pending against the accused. When the Legislature amended the statute in 1977 to correct various deficiencies and inconsistencies, the broad authorization for a court sua sponte to prevent sealing was substituted for the exception to sealing where there was a pending criminal action or proceeding (see L 1977, ch 905, § 1; Governor’s Program Bill Mem, Bill Jacket, L 1977, ch 905 [“The determination of this fact (that another criminal action is pending) is a difficult one and the statute offers no guidance as to who bears the burden of presenting this evidence to the court. As a result, many judges refuse to enter seal and return orders because there may be an action pending against the defendant”]). Vesting courts with discretion to preclude sealing in the interests of justice was not universally applauded (see Letter from Assemblyman Richard N. Gottfried to Honorable Judah Gribetz, Counsel to the Governor, July 21, 1977, Bill Jacket; Letter from Milton Beller, Legislative Director, The Legal Aid Society, to Honorable Judah Gribetz, Counsel to the Governor, July 28, 1977, Bill Jacket).

      5. CPL 1.20 (31) defines a “[p]rosecutor” as “a district attorney or any other public servant who represents the people in a criminal action.”

      . The Legislature amended section 160.50 (1) (d) in 1981 to add clause (iv) (see L 1981, ch 122, § 1); in 1985 to add clause (v) (see L 1985, ch 208, § 1); and in 1986 to add clause (vi) (see L 1986, ch 294, § 1).


author: Per Curiam.

text:
    [833 NE2d 1204, 800 NYS2d 529]
    In the Matter of Michael H. Feinberg, as Surrogate of Kings County, Petitioner. State Commission on Judicial Conduct, Respondent.
    Argued June 9, 2005;
    decided June 29, 2005

      POINTS OF COUNSEL

      Greenberg Traurig, LLP, Albany (Henry Greenberg and Cynthia Evans Neidl of counsel), for petitioner.
    I. The Court has plenary power to review the facts and the law. (Matter of Greenfield, 76 NY2d 293; Matter of Quinn v State Commn. on Jud. Conduct, 54 NY2d 386.) II. Surrogate Feinberg’s admitted error of law in awarding fees without obtaining affidavits of legal services does not constitute judicial misconduct. (Matter of Reeves, 63 NY2d 105; Matter of Sardino v State Commn. on Jud. Conduct, 58 NY2d 286; Matter of Bauer, 3 NY3d 158; Matter of Roberts, 91 NY2d 93; Matter of Hamel, 88 NY2d 317; Matter of Esworthy, 77 NY2d 280; Matter of McGee v State Commn. on Jud. Conduct, 59 NY2d 870; Matter of LaBelle, 79 NY2d 350.) III. Surrogate Feinberg’s award of uniform fees without case-by-case weighing of statutory factors does not constitute judicial misconduct. (Matter of LaBelle, 79 NY2d 350; People v Mobil Corp., 48 NY2d 192; Matter of Jakobson, 304 AD2d 579; Matter of La Corte, 7 AD3d 909; Matter of Potts, 213 App Div 59, 241 NY 593; Matter of Freeman, 40 AD2d 397, 34 NY2d 1.) IV The State Commission on Judicial Conduct erred in finding that Surrogate Feinberg committed misconduct on the ground that his conduct gave rise to an appearance of favoritism and friendship. (Matter of Going, 97 NY2d 121; Matter of Romano, 93 NY2d 161; Matter of Duckman, 92 NY2d 141; Matter of Lonschein, 50 NY2d 569.) V The State Commission on Judicial Conduct erred in finding that Surrogate Feinberg awarded excessive fees. (Matter of Gelfand, 70 NY2d 211; Matter of Shapiro v Board of Regents of Univ. of State of N.Y., 16 NY2d 783; Matter of Benson v Board of Educ. of Washingtonville Cent. School Dist., 183 AD2d 996, 80 NY2d 756; Matter of Brown v Saranac Lake Cent. School Dist., 273 AD2d 785; Matter of Schiff 83 NY2d 689; Matter of LaBelle, 79 NY2d 350; Brooklyn Pub. Lib. v City of New York, 250 NY 495; City of New York v New York City Ry. Co., 193 NY 543.) VI. If Surrogate Feinberg is found to have committed misconduct, he should be admonished or at most censured by this Court. (Matter of Skinner, 91 NY2d 142; Matter of Quinn v State Commn. on Jud. Conduct, 54 NY2d 386; Matter of Cohen, 74 NY2d 272; Matter of Watson, 100 NY2d 290; Matter of LaBelle, 79 NY2d 350; Matter of Edwards, 67 NY2d 153; Matter of Kelso, 61 NY2d 82; Matter of Cunningham, 57 NY2d 270; Matter of Rogers v State Commn. on Jud. Conduct, 51 NY2d 224; Matter of Rater, 69 NY2d 208.)

      Robert H. Tembeckjian, New York City, and Alan W. Friedberg for respondent.
    I. Petitioner’s persistent failure to abide by fundamental provisions of surrogate’s law, to the detriment of the estates entrusted to his care, constitutes serious misconduct. (Matter of Greenfeld, 71 NY2d 389; Matter of La Corte, 7 AD3d 909; Matter of Freeman, 40 AD2d 397, 34 NY2d 1; Matter of Potts, 213 App Div 59, 241 NY 593; Matter of Reeves, 63 NY2d 105; Matter of VonderHeide, 72 NY2d 658; Matter of Bauer, 3 NY3d 158.) II. Petitioner’s award of a flat 8% fee to Louis Rosenthal, and his approval of more than $9 million in fees to Rosenthal in 5xk years, were excessive. III. Petitioner’s conduct is permeated with impropriety, the appearance of impropriety and the appearance of favoritism. IV Petitioner’s misconduct is aggravated by his incredible, evasive and uncandid testimony. (Matter of Mason, 100 NY2d 56; Matter of Intemann, 73 NY2d 580; Matter of Kiley, 74 NY2d 364; Matter of Gelfand, 70 NY2d 211.) V Petitioner and amicus make other mistaken or unsubstantiated claims. VI. Petitioner’s conduct was egregious and warrants his removal from judicial office. (Matter of Petrie, 54 NY2d 807; Matter of Cooley, 53 NY2d 64; Bartlett v Flynn, 50 AD2d 401; Matter of Vincent, 70 NY2d 208; Matter of Rater, 69 NY2d 208; Matter of Cohen, 74 NY2d 272; Matter of Sims, 61 NY2d 349; Matter of Steinberg, 51 NY2d 74.)

      Whiteman Osterman & Hanna LLP, Albany (Howard A. Levine and James B. Ayers of counsel), for Surrogate’s Association of the State of New York, amicus curiae.
    The errors of law, if any, committed by the Surrogate were not sufficient to constitute judicial misconduct. (Matter of LaBelle, 79 NY2d 350; Matter of Greenfield, 76 NY2d 293; Matter of Duckman, 92 NY2d 141; Matter of Esworthy, 77 NY2d 280; Matter of Reeves, 63 NY2d 105; Matter of Tyler, 75 NY2d 525; Matter of Sardino v State Commn. on Jud. Conduct, 58 NY2d 286; Matter of McGee v State Commn. on Jud. Conduct, 59 NY2d 870; Matter of VonderHeide, 72 NY2d 658; Matter of Hamel, 88 NY2d 317; Matter of Conti, 70 NY2d 416.)
   OPINION OF THE COURT

Per Curiam.

Michael H. Feinberg, Surrogate of Kings County, asks this Court to reject the determination of the Commission on Judicial Conduct that he be removed from office on grounds of systematic failure, over a period of more than five years, to apply statutory requirements regarding the award of legal fees to counsel for the Public Administrator, and conduct that conveyed an appearance of impropriety. We accept the Commission’s determined sanction.

Background Law

Article VI, § 12 (d) of the New York State Constitution confers upon the elected surrogates of each county jurisdiction over all proceedings and actions “relating to the affairs of decedents, probate of wills [and] administration of estates.” Most relevant here, the Surrogate’s Court Procedure Act (SCPA)—in an article entitled “Public Administrators of the Counties Within the City of New York”—provides that each surrogate within the City’s five counties can appoint a public administrator to administer the estates of citizens who die intestate without an heir willing and able to do so. The salary of the public administrator, paid by the City, is fixed at two thirds the amount paid to the New York City surrogates (SCPA 1105).

The statute also allows a New York City surrogate to appoint one or more counsels to the public administrator (SCPA 1108 [2] [a]). While the public administrator is a salaried employee paid by the City, counsel is entitled to “reasonable compensation” paid out of the estate (SCPA 1108 [2] [b]). The Surrogate’s Court Procedure Act offers no schedule or guideline as to what compensation is reasonable.

Over the years, excessive, undocumented fee awards to counsels for New York City public administrators have been the subject of investigation by the New York State Attorney General and the State Comptroller. Their 1992 joint report suggested that, having unsuccessfully “made repeated attempts to obtain voluntary compliance with our recommendation that legal fees should be charged based on actual services provided for each estate,” counsel be required to submit affidavits of legal services performed in each estate to support fee requests (New York State Attorney General and State Comptroller, Estate Assets Continue to be at Risk, at 32 [July 1992]; see also New York State Attorney General and State Comptroller, New York City Public Administrators: An Operational Review [Nov. 1987]). In addition, the Attorney General twice in the past attempted to rein in counsel fees approved by the Kings County Surrogate, reaching agreements in 1988 and 1994 with then-counsel to limit fee awards to six percent of an estate’s value, with additional payment only in special cases.

Responding to the reports and recommendations, and concerned about “the imposition of questionable fees by the . . . [public administrators’] outside counsel,” in 1993 the Legislature amended Surrogate’s Court Procedure Act § 1108 (2) to require in each case documentation establishing that fees are commensurate with the legal services provided (Assembly Mem in Support, Bill Jacket, L 1993, ch 655). This requirement was, in part, designed to ensure that the beneficiaries—often helpless to challenge, or even to know about, excessive legal fees—were being charged appropriately for work actually done on the estates {id.).

The amendment—section 1108 (2) (c) of the Surrogate’s Court Procedure Act—applies plainly and pointedly to counsel for the New York City public administrators. In its entirety, the paragraph reads:

“Any legal fees allowed by the court pursuant to paragraph (b) of this subdivision shall be supported by an affidavit of legal services setting forth in detail the services rendered, the time spent, and the method or basis by which requested compensation was determined. In fixing the legal fees, the court shall consider the time and labor required, the difficulty of the questions involved, the skill required to handle the problems presented, the lawyer’s experience, ability and reputation, the amount involved and benefit resulting to the estate from the services, the customary fee charged by the bar for similar services, the contingency or certainty of compensation, the results obtained, and the responsibility involved.”

The statutory requirements of an affidavit and specification of factors the surrogate must consider when fixing the fee offer assurance that the amount paid out of an estate—and therefore not available as a distribution to beneficiaries—reflects the true and reasonable cost of the services rendered.

In addition, in 1993 the Legislature created an administrative board empowered to “establish guidelines and uniform fee schedules for the operation of the offices of public administrators” (SCPA 1128 [2]). While the board has no oversight responsibility with regard to the appointment of counsel or payment of fees for legal services, in October 2002 it recommended a uniform fee schedule for the counsels to the New York City public administrators—setting a sliding scale of maximum legal fees based on six percent of the estate’s value for the first $750,000, with decreasing percentages charged for estates in inverse proportion to the estate’s size beyond the initial $750,000 (Interim Report and Guidelines of the Administrative Board for the Offices of the Public Administrators [Oct. 2002]). The parties stipulated that, during the period at issue in this proceeding, the other five New York City surrogates calculated counsel fees—capped at six percent—based on a percentage of the total value of the estate. It was also stipulated that prior to approving a fee, in each case the other surrogates reviewed the required affidavits of legal services provided by counsel.

Petitioner as Kings County Surrogate

Petitioner was elected Surrogate in 1996, not long after the 1992 joint report, the 1993 statutory amendment and the Attorney General’s 1994 agreement with the Kings County Surrogate, all specifically aimed at ending abuses in documenting fees for counsel to the public administrator. Upon taking office in January 1997, petitioner formed a committee that conducted a public search for a new public administrator. Petitioner also replaced the firm that had for several decades served as counsel to the Public Administrator, but he did so without any search or interview process, appointing his long-time friend and law school classmate Louis Rosenthal to that lucrative position. Rosenthal had helped to raise funds for petitioner’s election campaign. His experience in Surrogate’s Court practice was limited.

As the record reflects, in the years between January 1997 and mid-May 2002, when an estate came within his purview Rosenthal would generally conduct a review of its assets and liabilities, at which point he would file an initial accounting. Upon filing, the Surrogate’s Court chief clerk would calculate eight percent of the anticipated final value of the estate, and petitioner would approve 60% of that sum. After the accounting, the estate would settle its debts, conduct kinship hearings (if necessary) and make initial distributions to heirs. Counsel would then submit a final decree, which included a line for an additional fee request. That additional fee request was also generally calculated by the Surrogate’s Court chief clerk, though on many occasions by Rosenthal himself, frequently worked out on a post-it note attached to the final decree. The additional fee was calculated to bring the total awarded to a percentage— generally eight percent—of the total value of the estate.

From January 1997 until mid-May 2002, petitioner never required Rosenthal to submit an affidavit of legal services before approving a fee request, nor did he determine fees based on consideration of the statutory factors specified in SCPA 1108 (2) (c). While petitioner claimed to have coincidentally considered factors similar to those codified in section 1108, he repeatedly acknowledged during these proceedings that prior to May 2002 he was unaware of the statutory requirements. He testified that he only “skimmed through” the Surrogate’s Court Procedure Act, never reading the entire Act—the statutory basis for his office and jurisdiction—claiming that it was “quite voluminous” and characterizing his failure to pay greater attention to the statute as an “oversight.” Instead of following the statutory prescription, petitioner relied on the calculations of Rosenthal and the chief clerk as they appeared on the post-it notes. Petitioner did not individually review the estate files himself. In no instance did he reject or reduce a fee request submitted by counsel, and there is no evidence that he ever questioned a request or sought additional information before ruling on it.

As to the application of eight percent, petitioner maintained that he inherited from his predecessor, Surrogate Bernard Bloom, the practice of awarding fees representing a relatively high portion of the estate, because “that was the way it had been done in the Surrogate’s Court for 30 plus years.” However, he never discussed counsel fees with the surrogates of the other New York City counties, nor did he ask any other counsels how their fees were determined. Further, though the chief clerk knew of the 1988 and 1994 agreements with the Attorney General limiting fees, petitioner claimed he did not know the content of those agreements.

Between January 1997 and December 2002, petitioner awarded Rosenthal a total of $8,613,009.35 in legal fees. Of that amount, about $1,935,000 was net income to Rosenthal as counsel to the Public Administrator, apart from other estate-related fees (which totaled $458,824.66 between 1997 and 2002) and his law firm earnings.

In the spring of 2002, petitioner learned that the New York Daily News was about to run an exposé of the Kings County Surrogate, revealing petitioner’s practice of approving counsel’s fee requests without affidavits or individualized review of the cases. In anticipation of the story, petitioner asked Rosenthal to submit affidavits of legal services, retrospectively detailing the work done on each estate. After petitioner received these affidavits, however, not a single fee was adjusted.

Proceedings Below

On March 18, 2003, the State Commission on Judicial Conduct filed a disciplinary complaint against petitioner alleging one charge of misconduct for continuing violations of three Rules of Judicial Conduct: 22 NYCRR 100.3 (B) (1) (a “judge shall be faithful to the law and maintain professional competence in it”); 100.2 (B) (to avoid the appearance of impropriety, a “judge shall not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment”); and 100.3 (C) (3) (a “judge shall not approve compensation of appointees beyond the fair value of services rendered”). The Commission appointed former Justice Felice K. Shea to hear evidence, report findings of fact and make conclusions of law.

Following a seven-day hearing, the Referee first determined that petitioner violated 22 NYCRR 100.3 (B) (1) by awarding legal fees without affidavits of legal services as required by SCPA 1108 (2) (c) and by failing to consider the enumerated statutory factors when fixing counsel fees. Second, she concluded that petitioner violated 22 NYCRR 100.3 (C) (3) by awarding a standard eight percent fee without consideration of the statutory factors when the customary fee in other New York City counties was six percent and when the agreement between prior counsel and the Attorney General set a general limitation on fees of six percent of the estate’s value.

The Commission adopted the Referee’s findings of fact and conclusions of law, adding the violation of 22 NYCRR 100.2 (B) for conveying an appearance of impropriety and favoritism by awarding fees to his long-time friend without giving each case the statutorily required individualized consideration, failing to ensure that the fee requests were supported by affidavits of legal services and setting fees greater than those granted in the other New York City counties. The Commission determined that removal was the appropriate sanction.

Upon our plenary review of the record and consideration of the evidence and arguments, we agree with the Commission’s conclusions that petitioner failed to maintain professional competence in the law and that his conduct conveyed the appearance of impropriety, and we conclude that petitioner’s actions constitute misconduct warranting removal.

Analysis

A judge must maintain professional competence in the law (22 NYCRR 100.3 [B] [1]). Petitioner’s office and duties are governed by the Surrogate’s Court Procedure Act and, whether voluminous or not, he was under an obligation to familiarize himself with the contents of that legislation, the primary authority for practice in the Surrogate’s Court. Petitioner’s repeated explanation that he “just read through sections” or “skimmed” the SCPA, and that his failure—over a period of more than five years—to know of and adhere to the single paragraph requirement of affidavits of legal services and individualized consideration of fee requests was an “oversight,” demonstrate a shocking disregard for the very law that imbued him with judicial authority.

The purpose of the statutory affidavit and individualized consideration requirements is to ensure that beneficiaries of estates that, by definition, lack interested parties capable of offering independent review are paying only for the actual cost of administering the estates. While we recognize a benefit of a fee structure that protects smaller estates from being depleted by hourly legal fees, petitioner’s pro forma practice of awarding eight percent of an estate’s value, approved without attention to the actual work done and unsupported by affidavits of legal services, provides no assurance that the estates benefitted in proportion to the amounts they were charged and violates the clear legal requirement and legislative intent of SCPA 1108 (2) (c). Had petitioner additionally briefed himself on the agreements with the Attorney General’s office, he would have been aware of the State’s concerns about the flat eight percent practice. Disregarding the content of those agreements only further suggests that he did not maintain competence in the responsibilities of his office.

Though petitioner insists that this failure was mere legal error and not misconduct, the two are not necessarily mutually exclusive (see Matter of Reeves, 63 NY2d 105, 109-110 [1984]). Indeed, a judge’s systematic failure to conform to legal requirements may form the basis for removal (see Matter of Bauer, 3 NY3d 158 [2004]). Petitioner disregarded the clear statutory mandates of his office repeatedly over the course of more than five years and 475 proceedings, educating himself on the SCPA requirements only in response to a newspaper’s investigatory series. Petitioner’s consistent disregard for fundamental statutory requirements of office demonstrates an unacceptable incompetence in the law.

Petitioner’s argument that the language of SCPA 1108 (2) (c) stating that a surrogate “shall consider” the factors set forth therein cannot mean that a surrogate “must consider” those factors is unavailing. While the statute vests discretion in the surrogate to make legal fee determinations, the plain language of SCPA 1108 (2) (c) directs a surrogate to review the statutory factors prior to compensating counsel. “Shall” plainly did not mean “may.” Considering the statutory factors does not divest the surrogate of discretionary authority to award fees, but it does satisfy the concern that fees are justified by the services rendered.

Petitioner’s failure was made all the more egregious by his appointment, without considering other candidates, of a close personal friend and political supporter to whom he summarily awarded, between 1997 and 2002, more than $8.5 million, and who personally took home a substantial portion of that amount without the Surrogate’s independent assurance in each case that the compensation was reasonable.

The Rules of Judicial Conduct require that a judge not “allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment” (22 NYCRR 100.2 [B]). A judge’s conduct is under a sterner microscope than other members of the public, as “there is no higher order of fiduciary responsibility than that assumed by a Judge” (Matter of Spector v State Commn. on Jud. Conduct, 47 NY2d 462, 469 [1979]). While appointment of a friend does not itself convey an appearance of impropriety, when, as here, that appointment is coupled with the unsubstantiated award of several million dollars in fees from estates that, by definition, lack adversarial parties to challenge the practice, the taint of favoritism is strong. Here, the record reflects not mere lapses or errors in judgment but a wholesale failure of petitioner’s duty, reflecting an indifference if not cynicism toward his judicial office. Petitioner’s failure to abide by the legal requirements of his office, in a manner that conveyed the appearance of impropriety and favoritism, debased his office and eroded public confidence in the integrity of the judiciary. We conclude that the proper remedy for this misconduct is removal from office.

Accordingly, the determined sanction should be accepted, without costs, and Michael H. Feinberg removed from the office of Surrogate of Kings County.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur in per curiam opinion.

Determined sanction accepted, etc.

      . Outside New York City, public administrators can employ counsels of their choice (SCPA 1206). Public administrators’ offices exist in New York City, Erie, Monroe, Nassau, Onondaga, Suffolk and Westchester counties. Elsewhere, the function of the public administrator is undertaken by the county’s chief fiscal officer (SCPA 1001).

      . In years prior to Rosenthal’s appointment, counsel to the Public Administrator was paid $1,126,250 (1994) and $1,482,860 (1995).

      . The parties submitted 475 estate files, of which petitioner himself selected 21 to serve as representative. Fifteen of those estates reflected legal fees of between 7.999% and 8% five were between 7.8% and 7.97% and one was 8.27%. A few of those fees included payment to the firm that had completed work prior to Rosenthal’s appointment.

      . Petitioner’s failure to procure any affidavits of legal services was apparently unique to him—Surrogate Bloom required affidavits starting in 1993, as do the surrogates in the other four New York City counties. Of course, even the fact that petitioner inherited a lax culture from a predecessor would not excuse such misconduct. “Petitioner was responsible for his own conduct in the discharge of his judicial duties” (Matter of Greenfeld, 71 NY2d 389, 392 [1988]).


author: Chief Judge Kaye.

text:
    [833 NE2d 1213, 800 NYS2d 538]
    Carlo Albanese et al., Respondents, v City of New York et al., Appellants, et al., Defendants.
    Argued June 1, 2005;
    decided July 6, 2005

      POINTS OF COUNSEL

      Smith Mazure Director Wilkins Young & Yagerman, EC., New York City CMark D. Levi of counsel), for appellants.
    The Appellate Division, First Department erred in not dismissing plaintiffs-respondents’ complaint against defendant-appellant, City of New York, and erred in finding it to be an owner under Labor Law §§ 200, 240 (1) and § 241 (6). (Deloach v City of New York, 258 AD2d 384; Nowlin v City of New York, 81 NY2d 81; Gregorio v City of New York, 246 AD2d 275; Astin v City of New York, 278 AD2d 440; Nunez v City of New York, 177 AD2d 394; Michetti v City of New York, 184 AD2d 263; Farrell v Town of N. Salem, 205 NY 453; People ex rel. Carlisle v Board of Supervisors of Onondaga County, 217 NY 424; Willis v City of New York, 107 AD2d 747; Allen v Village of Holley, 226 App Div 294.)

      Schneider, Kleinick, Weitz & Damashek, New York City ('Charles J. Nolet, Jr. of counsel), for respondents.
    Defendant-appellant is, as a matter of controlling law, an “owner” of this arterial highway work site for purposes of the Labor Law. (Nowlin v City of New York, 81 NY2d 81; Matter of City of New York v State of New York, 98 NY2d 740; Rocovich v Consolidated Edison Co., 78 NY2d 509; Quigley v Thatcher, 207 NY 66; Glielmi v Toys “R” Us, 62 NY2d 664; Adimey v Erie County Indus. Dev. Agency, 226 AD2d 1053, 89 NY2d 836; Kane v Coundorous, 293 AD2d 309; Bart v Universal Pictures, 277 AD2d 4; Clute v Ellis Hosp., 184 AD2d 942; Sinzieri v Expositions, Inc., 270 AD2d 332.)
   OPINION OF THE COURT

Chief Judge Kaye.

Plaintiff Carlo Albanese, a carpenter, was at work on a scaffold suspended from a Cross Bronx Expressway ramp over the Bruckner Expressway in the City of New York when a tractor-trailer heading east on the Bruckner struck the bottom of the scaffold. Plaintiff was thrown into the air and fell back down onto the scaffold.

As of the date of the accident, the expressways were under construction as part of a two-year New York State-initiated project that included the comprehensive resurfacing and rehabilitation of the Cross Bronx-Bruckner Interchange, Cross Bronx Expressway, Throgs Neck Expressway-Hutchinson River Parkway resurfacing, and joint restoration and replacement of the Throgs Neck Expressway Bridge over the Cross Bronx Expressway. Through its Department of Transportation, the State contracted for the project with Defoe Corporation, general contractor, and Haks Engineers, P.C., construction manager. The City was not a signatory to the contracts; it did not participate in the selection of, or negotiation with, the contracting parties; and it did not perform any of the work. The City, however, issued work permits for the project, granting the State the authority to “enter upon and restrict the flow of traffic on the Cross Bronx/Bruekner [Expressway] Interchange . . . for the purpose of reconstruction, resurfacing, and highway improvement together with all work incidental thereto,” subject to stipulations imposing conditions on lane closures, traffic flow, storage of materials and the like. The City reserved the right to cancel the permits at any time.

Alleging that the scaffolding was too low, plaintiff and his wife commenced this damages action for violations of Labor Law §§ 200, 240 and 241, as well as common-law negligence, against the City of New York, the Triborough Bridge and Tunnel Authority, Haks Engineers, Haks Construction Management, Inc. and the truck lessors, lessees and driver. (Plaintiffs separately brought a similar action against the State in the Court of Claims.) The City sought summary judgment, arguing that as a matter of law it was not an “owner” of the work site for purposes of Labor Law liability.

Supreme Court denied the City’s motion for summary judgment, finding issues of fact as to all claims. A divided Appellate Division modified, holding that, as a matter of law, the City was an owner within the meaning of the Labor Law; two dissenting Justices agreed with Supreme Court that the issue was (at the least) one of fact. The Appellate Division granted leave to appeal to this Court on a certified question. We now reverse, concluding that the City was not an owner for purposes of the alleged Labor Law violations.

Labor Law §§ 240 and 241 impose absolute liability on “[a]ll contractors and owners and their agents” for any breach of a statutory duty to provide safety measures that proximately cause injury (see Labor Law § 240 [1]; § 241). Plaintiffs contend that the City is an owner because the accident occurred on an arterial highway and therefore, under Highway Law article XII-B, the City and State shared responsibility for the work site. Further, plaintiffs argue that the City actually functioned as an owner on the project, by reviewing plans and specifications for the work, attending meetings, inspecting the site, issuing work permits and retaining authority to suspend or terminate the work.

Nowlin v City of New York (81 NY2d 81 [1993]) is a centerpiece of plaintiffs’ argument. While an automobile accident (not a Labor Law) case, Nowlin also concerned the scope of the City’s responsibility on arterial highways—roadways running through the city that connect to state highways. Our analysis began with article XII-B of the Highway Law (Highway Law §§ 349-b—349-f), enacted in 1944 to create a state-wide system for the use of state and federal funds in the construction and modernization of arterial highways.

As we explained in Nowlin, arterial highways by definition implicate both state and local interests, and the statute pays deference to both. It provides that the State may expend state or federal funds for the purchase, design, construction or reconstruction of arterial routes and thereby may attain ownership of them (Highway Law § 349-c [1], [5], [6]). The State, however, can proceed with construction only “after designs, plans, specifications and estimates of cost thereof have been completed and approved by the city and the commissioner of transportation, and the necessary property has been acquired” (Highway Law § 349-c [3.4]). Once state work is complete, “the commissioner of transportation shall transfer jurisdiction to the city of New York” (id.).

The separation between city and state responsibility, however, is not absolute, even during construction. Recognition of city authority—both the power to regulate its affairs, and the obligation to maintain its property—is a theme sounded throughout the history of article XII-B (see Nowlin, 81 NY2d at 87-88). For example, during state work, the City may itself initiate construction projects and thus take on the function of an owner (Highway Law § 349-c [3.6]); by the same token, the State may—as in Nowlin—retain maintenance responsibilities even after transferring jurisdiction to the City.

Two related, significant facts distinguish this case from Nowlin, where we sustained a damages award against the City for an automobile accident on an arterial highway, the Henry Hudson Parkway. In Nowlin, years before the accident, the State had completed construction and transferred jurisdiction to the City. Here, state construction was ongoing at the time of plaintiffs injury. In Nowlin, moreover, where negligent placement of warning signs allegedly created a traffic hazard that caused plaintiffs injury, it was the City that had actually planned and placed the signage on the parkway. Here, the City exercised no comparable function with respect to the scaffolding that was part of the State’s rehabilitation of the Cross Bronx Expressway-Bruckner Interchange. The State was in charge of the project, and the City had no say as to which contractor or consultants were hired. The City did not perform any of the work. The City’s role was largely confined to its regulatory responsibilities arising out of its work permits. That limited involvement cannot subject the City to absolute liability under the Labor Law for an injury allegedly resulting from the height of a scaffold placed by state contractors.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs, the certified question answered in the negative, and the case remitted to Supreme Court for further proceedings in accordance with this opinion.

Judges G.B. Smith, Ciparick, Rosenblatt, Grapfeo, Read and R.S. Smith concur.

Order, insofar as appealed from, reversed, etc.


author: G.B. Smith, J.

text:
    [833 NE2d 1197, 800 NYS2d 522]
    Courtroom Television Network LLC, Appellant, v State of New York et al., Respondents.
    Argued April 27, 2005;
    decided June 16, 2005

      POINTS OF COUNSEL

      Boies, Schiller & Flexner LLP, Armonk and Washington, D.C. (David Boies, Jonathan Sherman, David A. Barrett and George F. Carpinello of counsel), and Douglas P. Jacobs, New York City, for appellant.
    I. The per se ban set forth in Civil Service Law § 52 is unconstitutional. (Estes v Texas, 381 US 532; Westmoreland v Columbia Broadcasting Sys., Inc., 752 F2d 16, 472 US 1017; Chandler v Florida, 449 US 560; Republican Party of Minn. v White, 536 US 765; Butterworth v Smith, 494 US 624; Burson v Freeman, 504 US 191; Richmond Newspapers, Inc. v Virginia, 448 US 555; Wood v Georgia, 370 US 375; Craig v Harney, 331 US 367; Bridges v California, 314 US 252.) II. Under article I, § 8 of the New York State Constitution, the public and press are presumptively entitled to view trial court proceedings by audiovisual means. (Richmond Newspapers, Inc. v Virginia, 448 US 555; Matter of Westchester Rockland Newspapers v Leggett, 48 NY2d 430; Immuno AG. v MoorJankowski, 77 NY2d 235, 500 US 954; People ex rel. Arcara v Cloud Books, 68 NY2d 553; Bellanca v New York State Liq. Auth., 54 NY2d 228, 456 US 1006; People v Ferber, 57 NY2d 256; Matter of Ruben R., 219 AD2d 117; Matter of Johnson Newspaper Corp. v Melino, 77 NY2d 1; People v P.J. Video, 68 NY2d 296.) III. The per se ban in Civil Service Law § 52 is unconstitutional under the First Amendment and the broader protections of New York Constitution, article I, § 8. (Richmond Newspapers, Inc. v Virginia, 448 US 555; Press-Enterprise Co. v Superior Court of Cal., County of Riverside, 478 US 1; Matter of Westchester Rockland Newspapers v Leggett, 48 NY2d 430; Globe Newspaper Co. v Superior Court, County of Norfolk, 457 US 596; Matter of Associated Press v Bell, 70 NY2d 32; Chandler v

      Florida, 449 US 560; Matter of Oliver v Postel, 30 NY2d 171; Nebraska Press Assn. v Stuart, 427 US 539; Stroble v California, 343 US 181; Waller v Georgia, 467 US 39.)

      Eliot Spitzer, Attorney General, New York City (Caitlin Halligan and Gregory Silbert of counsel), for State of New York and others, respondents.
    I. There is no First Amendment right to televise trial proceedings. (Estes v Texas, 381 US 532; Chandler v Florida, 449 US 560; Richmond Newspapers, Inc. v Virginia, 448 US 555; Nixon v Warner Communications, Inc., 435 US 589; Waller v Georgia, 467 US 39; Press-Enterprise Co. v Superior Court of Cal., County of Riverside, 478 US 1; New State Ice Co. v Liebmann, 285 US 262; Globe Newspaper Co. v Superior Court, County of Norfolk, 457 US 596; Press-Enterprise Co. v Superior Court of Cal., Riverside Cty., 464 US 501; United States v Yonkers Bd. of Educ., 747 F2d 111.) II. There is no state constitutional right to televise trial proceedings. (Richmond Newspapers, Inc. v Virginia, 448 US 555; Matter of United Press Assns. v Valente, 308 NY 71; Matter of Westchester Rockland Newspapers v Leggett, 48 NY2d 430; People ex rel. Arcara v Cloud Books, 68 NY2d 553; Matter of Johnson Newspaper Corp. v Melino, 77 NY2d 1; McGowan v Burstein, 71 NY2d 729; People v P.J. Video, 68 NY2d 296; SHAD Alliance v Smith Haven Mall, 66 NY2d 496; Matter of Santiago v Bristol, 273 AD2d 813.) III. Section 52 of the Civil Rights Law passes constitutional muster. (Perry Educ. Assn. v Perry Local Educators’ Assn., 460 US 37; Cornelius v NAACP Legal Defense & Ed. Fund, Inc., 473 US 788; Huminski v Corsones, 396 F3d 53; United States v Grace, 461 US 171; Richmond Newspapers, Inc. v Virginia, 448 US 555; Estes v Texas, 381 US 532; Globe Newspapers v Superior Court, Norfolk County, 457 US 596; Heffron v International Socy. for Krishna Consciousness, Inc., 452 US 640; Chandler v Florida, 449 US 560; Westmoreland v Columbia Broadcasting Sys., Inc., 752 F2d 16.)

      Michael A. Cardozo, Corporation Counsel, New York City (<Janet L. Zaleon, Kristin M. Helmers and Jane R. Goldberg of counsel), for Robert Morgenthau, respondent.
    The dismissal of plaintiff Courtroom Television Network LLC’s (Court TV) complaint against the District Attorney of New York County should he affirmed for the reasons given by the Appellate Division and, moreover, because Court TV has no justiciable controversy against the District Attorney. Court TV failed to show that it has been threatened with prosecution for televising court proceedings. (Fox Wander W. Neighborhood Assn. v Luther

      Forest Community Assn., 178 AD2d 871; Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539; Cherry v Koch, 126 AD2d 346, 70 NY2d 603; Lang v Hanover Ins. Co., 3 NY3d 350; Bolt Assoc. v Diamonds-In-The-Roth, Inc., 119 AD2d 524; James v Alderton Dock Yards, 256 NY 298; People v Zimmer, 51 NY2d 390; People v Di Falco, 44 NY2d 482; People v Eboli, 34 NY2d 281.)

      Mickey H. Osterreicher, Buffalo, and Covington & Burling, Washington, D.C. (Timothy L. Jucovy of counsel), for National Press Photographers Association and others, amici curiae.
    I. Cameras in the courtroom are necessary to maintain the public’s historic right of access to the courts. (Richmond Newspapers, Inc. v Virginia, 448 US 555; ABC, Inc. v Stewart, 360 F3d 90; Press-Enterprise Co. v Superior Court of Cal., Riverside Cty., 464 US 501.) II. Due to significant technological advances in the field of audiovisual coverage since 1952, a video camera’s physical and psychological presence in the courtroom is unobtrusive. (Ward v Rock Against Racism, 491 US 781; Estes v Texas, 381 US 532; ABC, Inc. v Stewart, 360 F3d 90; Katzman v Victoria’s Secret Catalogue, 923 F Supp 580; Members of City Council of City of Los Angeles v Taxpayers for Vincent, 466 US 789; Simon & Schuster, Inc. v Members of N.Y. State Crime Victims Bd., 502 US 105; Richmond Newspapers, Inc. v Virginia, 448 US 555; National Assn. for Advancement of Colored People v Button, 371 US 415.)

      Chadbourne & Parke LLP, New York City (Thomas E. Riley, Philip Pfeffer and Jennifer Wilson of counsel), for New York State Association of Criminal Defense Lawyers, amicus curiae.
    I. The Appellate Division properly affirmed the Supreme Court’s decision upholding Civil Rights Law § 52. II. Under the content-neutral standard of review, this Court should consider the impact of cameras in the courtroom on the trial participants. (Estes v Texas, 381 US 532; People v Rosario, 9 NY2d 286, 368 US 866.) III. The Court should consider the negative impact of programming choices like Courtroom Television Network LLC’s. (Estes v Texas, 381 US 532.)

      Richard Sexton, New York City, amicus curiae.
    I. The Supreme Court in Estes v Texas (381 US 532 [1965]) had fundamental concerns about the televising of court proceedings for transmission to remote mass audiences and its impact on the fairness of trials, the rights of participants in the proceedings and the integrity of the judicial process, and such concerns still apply today. (Chandler v Florida, 449 US 560.) II. In enacting section 52 of the Civil Rights Law, the Legislature had fundamental concerns about the televising of court proceedings for transmission to remote mass audiences and its impact on the fairness of trials, the rights of participants in the proceedings and the integrity of the judicial process, and the reasonableness of such concerns still applies today and militates against the claim of a new constitutional right of television access under New York Constitution, article I, § 8. (Estes v Texas, 381 US 532.)

      Kenneth G. Standard, Albany, Slade R. Metcalf, Kevin W. Goering, Edward J. Klaris and Aimee E. Saginaw for New York State Bar Association, amicus curiae.
    I. The New York State Bar Association supports cameras in the courts. (Littlejohn v Bic Corp., 851 F2d 673.) II. The New York State Bar Association conducted extensive fact-gathering before supporting cameras in courts. III. Jurisprudence supports allowing television access to New York courts. (Richmond Newspapers, Inc. v Virginia, 448 US 555; Matter of Raab, 100 NY2d 305.)

      Jonathan E. Gradess, Albany, and Stephanie J. Batcheller for New York State Defenders Association, amicus curiae.
    Civil Rights Law § 52, prohibiting television cameras in court proceedings, is constitutionally supported by the demands of due process and fair and independent administration of justice. (Estes v Texas, 381 US 532; Sheppard v Maxwell, 384 US 333; Chandler v Florida, 449 US 560; Westmoreland v Columbia Broadcasting Sys., Inc., 752 F2d 16; Nixon v Warner Communications, Inc., 435 US 589; People v Walker, 81 NY2d 661; People v Davis, 43 NY2d 17; United States v Salerno, 481 US 739; People v Tichenor, 89 NY2d 769.)

      McNamee, Lochner, Titus & Williams, PC., Albany (Michael J. Grygiel and Morgan A. Costello of counsel), for Clear Channel Communications, Inc., amicus curiae.
    I. This appeal implicates fundamental legal—not policy—issues which should be determined as a matter of state constitutional law. (Alliance of Am. Insurers v Chu, 77 NY2d 573; Matter of Wood v Irving, 85 NY2d 238; Marbury v Madison, 1 Cranch [5 US] 137; People v LaValle, 3 NY3d 88; Landmark Communications, Inc. v Virginia, 435 US 829; SHAD Alliance v Smith Haven Mall, 66 NY2d 496; McRae v Califano, 491 F Supp 630; Schieffelin v Komfort, 212 NY 520; Boryszewski v Brydges, 37 NY2d 361; Richmond Newspapers, Inc. v Virginia, 448 US 555.) II. A mandatory, absolute ban on audiovisual coverage of in-court proceedings abridges the rights of the press and public protected under article I, § 8 of the New York State Constitution. (Richmond Newspapers, Inc. v Virginia, 448 US 555; Globe Newspaper Co. v Superior Court, County of Norfolk, 457 US 596; People v Harris, 57 NY2d 335, 460 US 1047; Matter of Associated Press v Bell, 70 NY2d 32; Matter of New York Times Co. v Demakos, 137 AD2d 247; Coopersmith v Gold, 156 Misc 2d 594; O’Neill v Oakgrove Constr., 71 NY2d 521; Matter of Beach v Shanley, 62 NY2d 241; Matter of Westchester Rockland Newspapers v Leggett, 48 NY2d 430; Press-Enterprise Co. v Superior Court of Cal., Riverside Cty., 464 US 501.)

      Patterson, Belknap, Webb & Tyler LLP, New York City (Saul B. Shapiro of counsel), for ABC, Inc. and others, amici curiae.
    I. As courts anticipated, courtroom camera technology has advanced and the public has embraced television. (Estes v Texas, 381 US 532; Westmoreland v Columbia Broadcasting Sys., Inc., 752 F2d 16; Cable News Network, Inc. v American Broadcasting Cos., Inc., 518 F Supp 1238; Katzman v Victoria’s Secret Catalogue, 923 F Supp 580; People v Boss, 182 Misc 2d 700.) II. Constitutional jurisprudence adapts with the progress of technology. (Olmstead v United States, 277 US 438; Kyllo v United States, 533 US 27; Denver Area Educ. Telecom. Consortium, Inc. v Federal Communications Commn., 518 US 727; Red Lion Broadcasting Co. v Federal Communications Commn., 395 US 367; Federal Communications Commn. v Pacifica Found., 438 US 726; Joseph Burstyn, Inc. v Wilson, 343 US 495; Columbia Broadcasting System, Inc. v Democratic National Committee, 412 US 94; Turner Broadcasting Sys., Inc. v Federal Communications Commn., 512 US 622; United States v Playboy Entertainment Group, Inc., 529 US 803; Sable Communications of Cal., Inc. v Federal Communications Commn., 492 US 115.) III. New York’s ban on courtroom cameras violates the constitutional presumption that courtrooms are open to the public and press. (Matter of Beach v Shanley, 62 NY2d 241; O’Neill v Oak-grove Constr., 71 NY2d 521; Matter of United Press Assns. v Valente, 308 NY 71; Richmond Newspapers, Inc. v Virginia, 448 US 555; People ex rel. Arcara v Cloud Books, 68 NY2d 553; People v Boss, 182 Misc 2d 700; Katzman v Victoria’s Secret Catalogue, 923 F Supp 580; Blanco v American Tel. & Tel. Co., 90 NY2d 757; People v Bialostok, 80 NY2d 738; Press-Enterprise Co. v Superior Court of Cal., Riverside Cty., 464 US 501.)
   OPINION OF THE COURT

G.B. Smith, J.

The primary issue on this appeal is whether Civil Rights Law § 52, which bans audiovisual coverage of most courtroom proceedings, violates the Federal or State Constitution. We agree with the Supreme Court and the Appellate Division that there is no First Amendment or New York Constitution, article I, § 8 right to televise a trial.

On September 5, 2001, Courtroom Television Network LLC (Court TV) filed a complaint against the State and Robert Morgenthau in his official capacity as District Attorney of New York County seeking a declaratory judgment that Civil Rights Law § 52 is unconstitutional and enjoining the prosecutor’s office from enforcing it. On July 15, 2003, Supreme Court granted summary judgment to defendants stating:

“the court declines to establish a constitutional rule in New York granting the media a right to televise court proceedings. The record is consistent with the traditional approach of New York courts to public access questions, giving great weight to fair trial concerns. The record also is consistent with New York’s statutory scheme which guarantees public trials, but gives primacy to fair trial rights. Moreover, to the extent any changes to the statutory scheme have been put into experimental use, these were initiated and reviewed by the Legislature. A state constitutional rule expanding the rights of the media in New York to include the right to photograph and broadcast court proceedings would derail what is, and always has been, a legislative process.” (1 Misc 3d 328, 375 [2003].)

The Appellate Division affirmed. Court TV appeals as of right on constitutional grounds pursuant to CPLR 5601 (b) (1).

Court TV asserts that section 52 denies it the right of access to trials guaranteed by the First Amendment to the United States Constitution and article I, § 8 of the New York State Constitution. Court TV argues further that most states permit televised trials, that New York stands alone in having an “absolute ban” on televised trials and that the evidence supporting access to information for the general public far outweighs any attendant problems of having cameras in the courtroom. New York State counters that there is no First Amendment right to televised trials, and that the concerns of Court TV are more appropriately directed to the Legislature than to the courts. The State additionally argues that allowing cameras in the courtroom is a discretionary policy determination that may be made by the Legislature.

I. First Amendment

The First Amendment to the United States Constitution guarantees the press and the public a right of access to trial proceedings. Without the right to attend trials, “which people have exercised for centuries, important aspects of freedom of speech and ‘of the press could be eviscerated’ ” (Richmond Newspapers, Inc. v Virginia, 448 US 555, 580 [1980]; see also Globe Newspaper Co. v Superior Court, County of Norfolk, 457 US 596, 605 [1982]; Press-Enterprise Co. v Superior Court of Cal., Riverside Cty., 464 US 501, 510 [1984] (Press Enterprise 7]; Press-Enterprise Co. v Superior Court of Cal., County of Riverside, 478 US 1, 9 [1986] [Press Enterprise 77]).

Though the public acquires information about trials chiefly through the press and electronic media, the press is not imbued with any special right of access. Rather, the media possesses “the same right of access as the public ... so that they may report what people in attendance have seen and heard” (Richmond Newspapers, 448 US at 573). Thus, the press has “no right to information about a trial superior to that of the general public” (Nixon v Warner Communications, Inc., 435 US 589, 609 [1978]), nor any right to information greater than the public (see Houchins v KQED, Inc., 438 US 1, 15 [1978]).

Civil Rights Law § 52 does not prevent the press, including television journalists, from attending trials and reporting on the proceedings. What they cannot do under the statute is bring cameras into the courtroom. This is not a restriction on the openness of court proceedings but rather on what means can be used in order to gather news. The media’s access is thus guaranteed. But it does not extend to a right to televise those proceedings (Westmoreland v Columbia Broadcasting Sys., Inc., 752 F2d 16, 23 [2d Cir 1984]). “There is a long leap . . . between a public right under the First Amendment to attend trials and a public right under the First Amendment to see a given trial televised” (id.).

Estes v Texas (381 US 532 [1965]) is the seminal case on televising a trial. Five Justices concurred in the Court’s holding that the petitioner had been denied due process because of the televising and broadcasting of his trial and held there was no constitutional right of the press to have access to the courtroom during a trial. The Court listed a number of concerns about the presence of cameras at the trial, including the prejudicial impact of pretrial publicity on the jurors, the impact on the truthfulness of the witnesses, responsibilities placed on the trial judge to assure a fair trial and the impact on the petitioner. The Court wrote, “A defendant on trial for a specific crime is entitled to his day in court, not in a stadium, or a city or nationwide arena” (381 US at 549; see also Sheppard v Maxwell, 384 US 333, 355 [1966]). The Court did acknowledge that “the ever-advancing techniques of public communication and the adjustment of the public to its presence may bring about a change in the effect of telecasting upon the fairness of criminal trials” (381 US at 551-552).

Today, television has become a “commonplace . . . affair in the daily life of the average person” {id. at 595 [Harlan, J., concurring]). While the Supreme Court has revisited the effects of televised coverage of trials, concluding that such broadcasts are not a per se violation of fair trial rights, it has never deviated from its holding that “ ‘there is no constitutional right to have [live witness] testimony recorded and broadcast’ ” (Chandler v Florida, 449 US 560, 569 [1981], quoting Nixon v Warner Communications, Inc., 435 US 589, 610 [1978]).

Thus, it is clear that the Federal Constitution does not require courtrooms to be open to televise court proceedings.

II. The New York State Constitution

The New York State Constitution, similarly, does not provide a right to televise trials. Article I, § 8 states, “Every citizen may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.” Court TV argues that Civil Rights Law § 52 is an unlawful “restraint on the press.” It concedes, however, that this Court has not “explicitly” recognized “a state constitutional right to public and press access to trial court proceedings.” While we have in certain circumstances interpreted article I, § 8 more broadly than its federal counterpart (see O’Neill v Oakgrove Constr., 71 NY2d 521, 530-532 [1988] [then Judge Kaye concurring]), we decline to do so here.

In New York, the press, like the public, has a right of access to criminal proceedings (see Matter of Westchester Rockland Newspapers v Leggett, 48 NY2d 430, 437-438 [1979]; Matter of Gannett Co. v De Pasquale, 43 NY2d 370, 376 [1977]; Matter of Associated Press v Bell, 70 NY2d 32, 38 [1987]). This includes access to pretrial hearings (id. [“We conclude, therefore, that the public and the press may have a First Amendment right of access to pretrial suppression hearings”]). Any exception to a public trial should be narrowly construed (Westchester Rockland Newspapers v Leggett, 48 NY2d at 443; People v Hinton, 31 NY2d 71, 75-76 [1972] [“While we reaffirm today the inherent discretionary power of the trial court to close the courtroom, we need only point out that the discretion be sparingly exercised and then, only when unusual circumstances necessitate it” (citation omitted)]).

Court TV relies on courtroom closure cases to suggest that New York has granted the press broader rights than those provided under the First Amendment. But even if the right to access was the equivalent of a right to televise courtroom proceedings, which it is not, our cases do not support appellant’s assertions.

Even prior to Estes, New York did not recognize any independent right of the press beyond that of the public to have access to the court. In Matter of United Press Assns. v Valente (308 NY 71, 84-85 [1954]), this Court held that the press had no independent right to request that the courtroom remain open separate from defendant’s right to make either a request for the court to remain open or closed. In fact, our approach to courtroom closure has been comparable to the federal analysis. In imposing such a restraint on the press, the government must show that there is a legitimate governmental interest which outweighs any constitutional right of access by the press and public (see New York Times Co. v United States, 403 US 713, 715 [1971] [Black, J., concurring] [government has the burden of proving that governmental interest outweighs the constitutional right]).

The primary governmental interest, both state and federal, is guaranteeing that the defendant receives a fair trial (see Estes v Texas, supra; Westchester Rockland Newspapers v Leggett, supra). Consistent with that interest, the court must be concerned with the defendant, jurors, witnesses, attorneys and the public at large (see Waller v Georgia, 467 US 39, 45-46 [1984]; People v Ramos, 90 NY2d 490, 497-498 [1997]).

In Westchester Rockland Newspapers v Leggett, this Court stated, “All court proceedings are presumptively open to the public, but when this would jeopardize the right of the accused to a fair trial, the competing interests must be balanced and reconciled as far as possible” (48 NY2d 430, 438 [1979], supra). The governmental interests of the right of a defendant to have a fair trial and for the trial court to maintain the integrity of the courtroom outweigh any absolute First Amendment or article I, § 8 right of the press or the public to have access to trials.

This Court has clearly and unequivocally held that the state constitutional right of the press to attend a trial is the same as that of any citizen. “The fact that petitioners are in the business of disseminating news gives them no special right or privilege, not possessed by other members of the public. Since the only rights they assert are those supposedly given ‘every citizen’ to attend court sessions (Judiciary Law, § 4), they are in no position to claim any right or privilege not common to ‘every [other] citizen’ ” (see Matter of United Press Assns. v Valente, 308 NY 71, 85 [1954]). The Valente court held that the press had no independent right to request that the courtroom remain open separate from defendant’s right to make either a request for the court to remain open or closed. Thus, under New York State law the press has no right separate from the public to challenge the judge’s order to close the courtroom.

In Matter of Johnson Newspaper Corp. v Melino (77 NY2d 1, 8 [1990]), this Court held that there is no broader protection for the press under State Constitution, article I, § 8, than under the United States Constitution with respect to right of access to judicial proceedings. Even though Johnson specifically addressed disciplinary proceedings which are traditionally closed, and Court TV petitions this Court for a ruling on trials which are presumptively open, Johnson does guide this Court in that it addressed whether or not article I, § 8 gives greater rights than the First Amendment. Johnson also refused to find that there was a greater protection for the press than for the public to have access to the court.

Together, Valente and Johnson hold that there is no additional or broader protection under State Constitution, article I, § 8, than under the First Amendment insofar as access to court proceedings is concerned. Thus, we conclude that Civil Rights Law § 52 withstands state constitutional challenge.

III. The Legislative Prerogative

In New York State, the decision whether or not to permit cameras in the courtroom is a legislative prerogative. The Legislature may and has, under our State Constitution, experimented with rules regarding audiovisual broadcasts of trial proceedings.

Beginning in 1987 with the enactment of Judiciary Law § 218, the Legislature has on four occasions temporarily permitted certain courtroom broadcasts. Specifically, Judiciary Law § 218 (1) permitted the Chief Judge of the State to “authorize an experimental program in which presiding trial judges, in their discretion, may permit audio-visual coverage of civil and criminal court proceedings, including trials” subject to certain conditions and restrictions. Judiciary Law § 218 contained sunset provisions upon which the statute, if not extended, would automatically expire. It also required a committee to review audiovisual coverage to hold public hearings on audiovisual coverage and to issue reports “evaluating the efficacy of the program [of audiovisual coverage] and whether any public benefits accrue from the program, [and] any abuses that occurred during the program,” with recommendations for future legislation (Judiciary Law § 218 [9] [c], as amended by L 1995, ch 8). After each experiment, lasting approximately two to three years, the Legislature reviewed the findings and reports on audiovisual equipment in the courtroom, all of which recommended cameras in the courtroom, and, after each review, rejected the recommendation. On June 30, 1997, the Legislature and Governor allowed Judiciary Law § 218 to sunset. Thus, the ban on televised trials contained in Civil Rights Law § 52 resumed as of July 1, 1997, a ban which continues to the present. Despite the technological improvements to audiovisual equipment, which renders its presence in courtrooms less obtrusive, the Legislature has not seen fit since 1997 to amend section 52 or reenact section 218.

We will not circumscribe the authority constitutionally delegated to the Legislature to determine whether audiovisual coverage of courtroom proceedings is in the best interest of the citizens of this state. “A state constitutional rule expanding the rights of the media in New York to include the right to photograph and broadcast court proceedings would derail what is, and always has been, a legislative process” (1 Misc 3d 328, 375 [2003], supra).

For all of the foregoing reasons, we hold that Civil Rights Law § 52 is constitutional under both the First Amendment to the United States Constitution and article I, § 8 of the New York State Constitution.

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

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

Order affirmed, with costs.

      . Civil Rights Law § 52 provides in part: “No person, firm, association or corporation shall televise, broadcast, take motion pictures or arrange for the televising, broadcasting, or taking of motion pictures within this state of proceedings, in which the testimony of witnesses by subpoena or other compulsory process is or may be taken, conducted by a court, commission, committee, administrative agency or other tribunal in this state . . .

      . Since there is no pending action by the District Attorney of New York County against Court TV there is no justiciable issue before us, and the case against the District Attorney should be dismissed.

      . We note that after Chandler, no Federal Circuit Court has opined that the Federal Constitution guarantees the media a right to televise trials (see e.g. Westmoreland v Columbia Broadcasting Sys., Inc., 752 F2d 16, 24 [1984]; Whiteland Woods, L.P. v Township of W. Whiteland, 193 F3d 177, 181 [3d Cir 1999] [press has no absolute right of access to a criminal trial]; United States v Edwards, 785 F2d 1293, 1295 [5th Cir 1986] [First Amendment does not guarantee a positive right to televise or broadcast criminal trials]; Conway v United States, 852 F2d 187, 188-189 [6th Cir 1988] [no First Amendment right to televise judicial proceedings]; United States v Kerley, 753 F2d 617, 621 [7th Cir 1985] [“exclusion of cameras from federal courtrooms is constitutional”]; Rice v Kempker, 374 F3d 675, 678 [8th Cir 2004] [“the First Amendment does not protect the use of video cameras or any other cameras or, for that matter, audio recorders in the execution chamber”]; California First Amendment Coalition v Woodford, 299 F3d 868, 877 [9th Cir 2002] [reaffirms First Amendment right of access to attend executions]; Combined Communications Corp. v Finesilver, 672 F2d 818, 821 [10th Cir 1982] [“The First Amendment does not guarantee the media a constitutional right to televise.inside a courthouse”]; United States v Hastings, 695 F2d 1278, 1280 [11th Cir 1983] [right of access does not extend to “the right to televise, photograph, record, and broadcast federal criminal trials”]).

      4. Judiciary Law § 4:
      “Sittings of courts to be public
      “The sittings of every court within this state shall be public, and every citizen may freely attend the same, except that in all proceedings and trials in cases for divorce, seduction, abortion, rape, assault with intent to commit rape, criminal sexual act, bastardy or filiation, the court may, in its discretion, exclude therefrom all persons who are not directly interested therein, excepting jurors, witnesses, and officers of the court.”

      . Because we conclude that Civil Rights Law § 52 does not affect a federal or state constitutional right, we need not consider Court TV’s argument that the State’s law should be analyzed under a strict scrutiny standard. Even if we were to consider section 52 under a constitutional lens, however, it would pass constitutional muster. This Court concludes that the statute is narrowly tailored to serve the governmental interests at issue, namely insuring that criminal defendants receive fair trials (see Sheppard v Maxwell, supra), that witnesses are forthcoming in their testimony (see People v Hinton, supra), that the trial court has control of the courtroom and that the integrity of the trial is maintained (see People v Ramos, 90 NY2d at. 504).

      . When Judiciary Law § 218 was in effect, the court system itself exercised control over the means of access to proceedings made available to broadcast media under Rules of the Chief Administrator of the Courts (22 NYCRR) part 131.