text:
    Johnnies Pelham Road Service, Inc., Respondent, v Richard S. Thomas, Appellant.
    Submitted April 30, 2007;
    decided June 12, 2007
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


source: Caselaw Access Project

license: Public Domain

text:
    Daniel Kwa et al., Appellants, v Mark Roberts et al., Respondents.
    Submitted March 26, 2007;
    decided June 12, 2007
   Motion for leave to appeal dismissed upon the ground that simultaneous appeals do not lie to both the Appellate Division and the Court of Appeals (see Parker v Rogerson, 35 NY2d 751, 753 [1974]).


text:
    In the Matter of James Melvin Lee, Appellant, v Judith S. Kaye, as Judge of the Court of Appeals, et al., Respondents.
    Submitted June 4, 2007;
    decided June 12, 2007
   Appeal, insofar as taken from that part of the Appellate Division order that dismissed the petition, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that as to that part of the order no substantial constitutional question is directly involved; appeal, insofar as taken from that part of the Appellate Division order that denied appellant’s motion for poor person relief, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that such portion of the order does not finally determine the proceeding within the meaning of the Constitution.

Chief Judge Kaye taking no part.


text:
    In the Matter of Manufacturers and Traders Trust Company, as Trustee of Securitization Series 1988-1 Agreement Dated 3-1-1998, Respondent, v Robert S. Myers, Appellant, et al., Respondent.
    Submitted April 30, 2007;
    decided June 12, 2007
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain this motion for leave to appeal from the order of the Appellate Division entered in this proceeding commenced in Town Court (see NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]). Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York, Respondent, v Santos Suarez, Also Known as Santo Suarez and as Domingo Suarez, Appellant.
    Submitted April 13, 2007;
    decided June 12, 2007
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no appeal lies as of right from the order of the Appellate Division. The Appellate Division order does not violate the terms of this Court’s remittitur [see 6 NY3d 202]. Motion for assignment of counsel dismissed as academic.


text:
    RB Hempstead, LLC, Appellant, v Incorporated Village of Hempstead et al., Respondents.
    Submitted April 16, 2007;
    decided June 12, 2007
   Motion, insofar as it seeks leave to appeal as against the Incorporated Village of Hempstead Community Development Agency, dismissed upon the ground that as to that party the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion, insofar as it seeks leave to appeal as against the Incorporated Village of Hempstead, denied.


text:
    Richard Stone, Appellant, v Norman Stone et al., Respondents.
    Submitted June 4, 2007;
    decided June 12, 2007
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Injah E. Tafari, Appellant, v Anthony F. Zon, as Superintendent of Wende Correctional Facility, et al., Respondents.
    Submitted April 23, 2007;
    decided June 12, 2007
   Motion for leave to appeal dismissed upon the ground that the order sought t'o be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.

Judge Pigott taking no part.


text:
    Marie C. Vaval, Appellant, v NYRAC, Inc., et al., Respondents.
    Submitted April 23, 2007;
    decided June 12, 2007
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Leroy Williams, Appellant, v Glenn S. Goord, as Commissioner of Social Services, et al., Respondents.
    Submitted April 23, 2007;
    decided June 12, 2007
   Motion for leave to appeal denied. Motion for poor person relief dismissed as academic. Motion for a stay dismissed as academic.


author: Jones, J.

text:
    [872 NE2d 842, 840 NYS2d 730]
    Richard A. Williamson, as Successor Liquidating Trustee on Behalf of Lipper Convertibles, L.P., and Lipper Fixed Income Fund, L.P., Respondent, v PricewaterhouseCoopers LLP, Appellant.
    Argued April 25, 2007;
    decided June 7, 2007

      POINTS OF COUNSEL

      Orrick, Herrington & Sutcliffe LLP, New York City (J. Peter Coll, Jr., Sherene D. Hannon and Thomas H. Godwin of counsel), and Andrew J. Plunkett for appellant.
    I. The First Department decision should be reversed because PricewaterhouseCoopers LLP’s consecutive annual audits do not amount to continuous representation which would toll the statute of limitations. (Borgia v City of New York, 12 NY2d 151; Shumsky v Eisenstein, 96 NY2d 164; Glamm v Allen, 57 NY2d 87; Greene v Greene, 56 NY2d 86; Gordon v Magun, 83 NY2d 881; Young v

      New York City Health & Hosps. Corp., 91 NY2d 291; Nykorchuck v Henriques, 78 NY2d 255; Massie v Crawford, 78 NY2d 516; Charalambakis v City of New York, 46 NY2d 785; Davis v City of New York, 38 NY2d 257.) II. The First Department decision eviscerates the applicable three-year statute of limitations period. (Chase Scientific Research v NIA Group, 96 NY2d 20; Santulli v Englert, Reilly & McHugh, 78 NY2d 700; Ackerman v Price Waterhouse, 84 NY2d 535; McCoy v Feinman, 99 NY2d 295.)

      Labaton Sucharow & Rudoff LLP, New York City (Thomas A. Dubbs, Lisa Buckser-Schulz, Barry Michael Okun and Craig A. Martin of counsel), for respondent.
    I. The First Department’s decision that the applicability of the “continuous representation” doctrine to a series of audits is a question of fact that cannot be determined prior to the development of a full factual record should be affirmed. (Borgia v City of New York, 12 NY2d 151; Ackerman v Price Waterhouse, 252 AD2d 179; Zwecker v Kulberg, 209 AD2d 514; Hall & Co. v Steiner & Mondore, 147 AD2d 225; Kearney v Firley, Moran, Freer & Eassa, 234 AD2d 967; Shumsky v Eisenstein, 96 NY2d 164; Greene v Greene, 56 NY2d 86; Muller v Sturman, 79 AD2d 482; McDermott v Torre, 56 NY2d 399; Young v New York City Health & Hosps. Corp., 91 NY2d 291.) II. The First Department correctly held that the “continuous representation” doctrine and its applicability create questions of fact. (A.J. Temple Marble & Tile v Union Carbide Marble Care, 87 NY2d 574; Greene v Greene, 56 NY2d 86; McDermott v Torre, 56 NY2d 399; Shumsky v Eisenstein, 96 NY2d 164; Hall & Co. v Steiner & Mondore, 147 AD2d 225; Young v New York City Health & Hosps. Corp., 91 NY2d 291; McCoy v Feinman, 99 NY2d 295; Nykorchuck v Henriques, 78 NY2d 255; Massie v Crawford, 78 NY2d 516; Gordon v Magun, 83 NY2d 881.)

      Willkie Farr & Gallagher LLP, New York City (Kelly M. Hnatt and Matthew P. Bosher of counsel), and Richard I. Miller for American Institute of Certified Public Accountants and another, amici curiae.
    I. The relationship between an independent auditor and its client is not susceptible to application of the continuous representation doctrine. (Borgia v City of New York, 12 NY2d 151; Young v New York City Health & Hosps. Corp., 91 NY2d 291; Nykorchuck v Henriques, 78 NY2d 255; Rizk v Cohen, 73 NY2d 98; Greene v Greene, 56 NY2d 86; Glamm v Allen, 57 NY2d 87; Reuben H. Donnelley Corp. v Mark I Mktg. Corp., 893 F Supp 285; Shumsky v Eisenstein, 96 NY2d 164; Massie v

      Crawford, 78 NY2d 516; Davis v City of New York, 38 NY2d 257.) II. Public policy militates against subjecting auditors to an indeterminate limitations period. (United States v Marion, 404 US 307; Duffy v Horton Mem. Hosp., 66 NY2d 473; Connell v Hayden, 83 AD2d 30; Ehrlich-Bober & Co. v University of Houston, 49 NY2d 574; Brothers v Florence, 95 NY2d 290; Ultramares Corp. v Touche, 255 NY 170.)

      Wilentz, Goldman & Spitzer, BA., Woodbridge, New Jersey (Kevin P. Roddy of counsel), for National Association of Shareholder and Consumer Attorneys, amicus curiae.
    I. The investing public places great reliance on audits. (United States v Arthur Young & Co., 465 US 805.) II. The market expects continuous long-term relationships between companies and their auditors. III. Continuous use of the same auditors, while in some ways conducive to audit quality, can lead to mistakes, and then permit them to be repeated year after year.

      Berman DeValerio Pease Tabacco Burt & Pucillo, Boston, Massachusetts and San Francisco, California (Joseph J. Tabacco, Jr., and Nicole Lavallee of counsel), for Professor Ross Fuerman, amicus curiae.
    The contention that auditors would be subjected to unlimited liability if the continuous representation doctrine were applied to them is simply false.
   OPINION OF THE COURT

Jones, J.

We are asked to determine whether the continuous representation doctrine applies to toll the limitations period applicable to plaintiffs auditing malpractice claims against defendant. In the circumstances presented, we conclude that it does not.

Facts and Procedural History

Lipper Convertibles and Lipper Fixed Income Fund (collectively, the Funds) were private investment limited partnerships (hedge funds) managed by Lipper Holdings (Management). Lip-per Convertibles’ primary asset was a portfolio of convertible securities. Lipper Fixed Income invested approximately 60% of its assets in Lipper Convertibles.

Beginning in or around 1990, the Funds annually engaged defendant to perform a number of accounting services with respect to the previous fiscal year, including an audit of and opinion on each Fund’s year-end financial statements. Management was responsible for preparing the financial statements in accordance with generally accepted accounting principles (GAAP) and representing that the statements were devoid of fraud and free of material misstatement. Defendant was responsible for performing audits on the financial statements pursuant to generally accepted auditing standards (GAAS). Defendant performed the audits by referring to the worksheets it prepared for the prior year’s audits; examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements; assessing the accounting principles used and significant estimates made by Management; and evaluating the overall financial statement presentation.

After completing its inspection of the financial statements, defendant issued unqualified opinions for the year audited, stating that the financial statements fairly represented the financial position of the Funds on December 31st of the subject year. Once the annual audit services for a particular fiscal year were complete, defendant did no further work as to that year. On February 26 and March 12, 2001, defendant issued the audit opinions on the year-end 2000 financial statements of Lipper Convertibles and Lipper Fixed Income, respectively. The 2000 audits were the last audits defendant completed on behalf of the Funds.

On January 14, 2002, two key officers of Lipper Convertibles— the comanager of the portfolio and its head of research— unexpectedly resigned in order to start their own hedge fund. In or around February 2002, Management conducted a review of the values it had placed on Lipper Convertibles’ securities as of December 31, 2001 and discovered that the former portfolio manager had used an improper valuation method which materially overstated the securities holdings. Management further discovered that, due to the former portfolio manager’s overstatement of Lipper Convertibles’ securities holdings, the Funds reported increasingly inflated assets, capital and profits in their respective financial statements for the years 1995 through 2000.

In a letter dated February 20, 2002, Management notified the limited partners of Lipper Convertibles that a write-down in the value of the Fund’s portfolio of convertible securities, as of December 31, 2001, would result in a 40% (approximately $400 million) decline in the Fund’s net equity value. After this announcement, many limited partners withdrew their investments from the Funds. On March 26, 2002, Management notified the limited partners that it was dissolving the Funds and began the winding up process. As part of this process, Management, the liquidating trustee of the Funds, liquidated all securities held by the Funds. By petition dated October 3, 2002, Management commenced a proceeding to wind up the Funds in Supreme Court. On July 1, 2003, the court appointed plaintiff Richard A. Williamson as successor liquidating trustee of the Funds. On December 15, 2003, plaintiff and defendant executed a stipulation and tolling agreement (Tolling Agreement) under which they agreed that “all applicable state or federal statutes of limitations and other time-related defenses as to the Claims are tolled from December 15, 2003 through and including [June 30, 2004].”

On July 2, 2004, more than three years after defendant completed its final audits of the Funds’ financial statements and issued its final opinions, plaintiff commenced this action against defendant for malpractice, among other claims, based on defendant’s improper audits of the Funds’ financial statements for the fiscal years 1995 through 2000. Plaintiff alleged that defendant’s services for the Funds incorporated and built upon the services rendered in prior years, and were continuous and performed in the same manner and for the same purpose until early 2002. Regarding the alleged malpractice, plaintiff asserted that: (1) defendant’s audits were not conducted in accordance with GAAS; (2) defendant, beginning with its audits of the Funds’ 1995 financial statements, ignored blatant errors in the portfolio manager’s valuation of Lipper Convertibles’ securities holdings and took as its starting point for each year’s audit the materially incorrect figures it had certified in the previous year; (3) although defendant was aware of these errors, instead of advising Management, it falsely represented to the Funds’ limited partners year after year that the Funds’ financial statements fairly represented the value of the portfolios for Lipper Convertibles and Lipper Fixed Income, and that the statements complied with GAAP; and (4) as a result, the Funds reported increasingly inflated assets, capital and profits in their financial statements year after year, with each year’s statements relying and building upon the errors of the prior year.

Defendant filed a pre-answer motion to dismiss the complaint, arguing that plaintiffs malpractice claims were time-barred by the three-year statute of limitations applicable to claims of professional malpractice (see CPLR 214 [6]). Plaintiff countered that the statute of limitations should be tolled under the “continuous representation” doctrine because each audit was one step in the continuous and interrelated service defendant provided to the Funds over a 12-year period (from 1990 until it was discharged in February 2002).

Supreme Court granted defendant’s motion to dismiss, in part, holding that plaintiff’s malpractice claims were time-barred (see CPLR 203 [a]). The court stated: “[T]he annual audits form the only basis for plaintiffs claims. Taken together, plaintiff’s claims underscore that the audits [defendant] performed constituted the continuation of a general professional relationship. Those audits are insufficient to toll the statute of limitations under the continuous representation doctrine” (2005 NY Slip Op 30084[U], at *13).

The Appellate Division reversed, with two Justices dissenting (32 AD3d 179 [2006]). The majority reinstated the malpractice claims and held that Supreme Court “should have given plaintiff the opportunity to develop through discovery, and to establish, the asserted fact that each audit was merely a step in a continuous and interrelated service that [defendant] provided through the years in question” (id. at 181). The dissenting Justices concluded that, “[i]nasmuch as these were discrete audits conducted on a year-to-year basis, the continuous representation doctrine does not apply to alter the accrual date of these causes of action” (id. at 185). The Appellate Division granted defendant leave to appeal and certified the following question: “Was the order of this Court, which reversed the order of the Supreme Court, properly made?” For the reasons that follow, we answer the certified question in the negative, reverse and reinstate the order of Supreme Court.

Discussion

An action for professional malpractice must be commenced within three years of the date of accrual (see CPLR 214 [6]). A claim accrues when the malpractice is committed, not when the client discovers it (see e.g. Glamm v Allen, 57 NY2d 87, 93 [1982], citing McDermott v Torre, 56 NY2d 399 [1982]).

In Ackerman v Price Waterhouse (84 NY2d 535 [1994]), a case involving an accounting partnership’s alleged negligence and professional malpractice in the preparation of annual tax returns, we held that an accounting malpractice claim “accrues upon the client’s receipt of the accountant’s work product since this is the point that a client reasonably relies on the accountant’s skill and advice” {id. at 541). This is the point “when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court” {id.). Here, plaintiffs malpractice claims for the 1995 through 1999 audits accrued on the date the Funds received defendant’s audit opinions (i.e., in February or March 1996, 1997, 1998, 1999 and 2000). The limitations period for the claim regarding the 1999 audits ran in March 2003. Because this action was not commenced until July 2, 2004, more than a year later, plaintiffs malpractice claims for the years ending 1995 through 1999 are time-barred unless the “continuous representation” doctrine applies.

This case presents our first opportunity to determine the applicability of the continuous representation doctrine in an accounting context. In making this determination, we are guided, in part, by our “continuous treatment” jurisprudence.

The continuous treatment doctrine was first recognized in medical malpractice cases (see Borgia v City of New York, 12 NY2d 151 [1962]), and is codified in CPLR 214-a. The statute provides that an action for medical malpractice must be commenced within 2V2 years from the date of the “act, omission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure” (CPLR 214-a). Thus, under the continuous treatment doctrine, “when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint,” the limitations period does not begin to run until the end of the treatment (Borgia, 12 NY2d at 155). A patient’s “treatment,” for purposes of the doctrine, “does not necessarily terminate upon a patient’s last visit if further care or monitoring of the condition is ‘explicitly anticipated by both physician and patient’ ” (Young v New York City Health & Hosps. Corp., 91 NY2d 291, 296 [1998], quoting Richardson v Orentreich, 64 NY2d 896, 898 [1985]).

The rule of “continuous treatment” does not apply to a continuing general relationship between patient and physician or to situations where the patient initiates routine, periodic examinations to check a condition (see Massie v Crawford, 78 NY2d 516, 519 [1991]; McDermott, 56 NY2d at 406). Similarly, a physician’s failure to take action or provide services in order to protect a patient’s interests, does not, standing alone, constitute treatment for purposes of tolling the limitations period (see e.g. Young, 91 NY2d at 296-297).

The doctrine developed out of the concern that a malpractice cause of action might expire while the plaintiff “was still a patient receiving care and treatment related to the conditions produced by the earlier wrongful acts and omissions” (Borgia, 12 NY2d at 156). Put another way, the toll “enforce[s] the view that a patient should not be required to interrupt corrective medical treatment by a physician and undermine the continuing trust in the physician-patient relationship in order to ensure the timeliness of a medical malpractice action” (Young, 91 NY2d at 296, citing Rizk v Cohen, 73 NY2d 98, 104 [1989]; see Borgia, 12 NY2d at 156). Thus, “a patient who is not aware of the need for further treatment of a condition is not faced with the dilemma that the doctrine is designed to prevent” (Young, 91 NY2d at 296).

The rule of continuous treatment, or more appropriately continuous representation, applies to other types of professionals, such as lawyers (see Greene v Greene, 56 NY2d 86, 94 [1982]; Glamm, 57 NY2d at 93). The continuous representation and treatment doctrines “ ‘recognize[ ] that a person seeking professional assistance has a right to repose confidence in the professional’s ability and good faith, and realistically cannot be expected to question and assess the techniques employed or the manner in which the services are rendered’ ” (Shumsky v Eisenstein, 96 NY2d 164, 167 [2001], quoting Greene, 56 NY2d at 94).

Contrary to plaintiff’s suggestion, the basic principles that inform the continuous treatment doctrine apply to the rule of continuous representation (see e.g. Shumsky, 96 NY2d at 167-168 [using the continuous treatment and representation doctrines interchangeably when discussing their common, underlying rules]; compare Zorn v Gilbert, 8 NY3d 933, 934 [2007] and McCoy v Feinman, 99 NY2d 295, 306 [2002] [holding that the “continuous representation doctrine tolls the statute of limitations . . . where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim”] with Young, 91 NY2d at 296 [holding that the continuous treatment doctrine tolls the limitations period if further care or monitoring of the condition is explicitly anticipated by both physician and patient]). We do, however, agree with plaintiff that Shumsky is instructive in resolving the issue before us.

In Shumsky, defendant attorney, who was retained by plaintiffs for the express purpose of investigating, researching and prosecuting a breach of contract action against a third party, failed to commence the suit before the statute of limitations expired. He also never responded to plaintiffs’ inquiries regarding the status of the case. Eventually, plaintiffs brought a legal malpractice action against defendant; however, as the limitations period had expired, the suit was time-barred unless saved by application of the continuous representation doctrine. This Court held that where (1) plaintiffs and defendant attorney were acutely aware of the need for further representation against the third party (i.e., they had a mutual understanding to that effect), and (2) plaintiffs were under the impression that defendant attorney was actively addressing their legal needs, the continuous representation doctrine tolled the limitations period for plaintiffs’ malpractice claim until plaintiffs were put on notice by defendant’s failure to return calls that he withdrew from representing them (see Shumsky, 96 NY2d at 170-171). In so holding, we noted that “upon signing the retainer agreement, [which essentially established a ‘course of representation’ for continuous representation purposes,] plaintiffs and the defendant reasonably intended that their professional relationship . . . would continue” (id. at 170); and “plaintiffs’ attempt to contact defendant . . . about the status of their case and requesting a letter in response, confirm[ed] this understanding” (id.). Shumsky, therefore, emphasizes that the nature and scope of the parties’ retainer agreement (engagement) play a key role in determining whether “continuous representation” was contemplated by the parties.

Applying the foregoing principles, and accepting, as we must, the facts as alleged by plaintiff on this motion to dismiss, we conclude that the continuous representation doctrine is not available to toll the statute of limitations here.

Plaintiffs allegations make clear that for the years in question, the Funds entered into annual engagements with defendant for the provision of separate and discrete audit services for the Funds’ year-end financial statements, and once defendant performed the services for a particular year, no further work as to that year was undertaken. Taken together, plaintiff s allegations establish defendant’s failures within a continuing professional relationship, not a course of representation as to the particular problems (conditions) that gave rise to plaintiff’s malpractice claims. Plaintiff fails to allege that defendant and the Funds explicitly contemplated further representation regarding the audits. Specifically, the Funds never engaged defendant to provide corrective or remedial services (e.g., to reexamine a prior year’s financial statements or redo a prior year’s audit). Nor were the Funds aware of the need for further representation as to the audits. Thus, the “mutual understanding” required under the doctrine did not exist.

Given the Funds’ lack of awareness of a condition or problem warranting further representation and the fact that no course of representation was alleged, the purpose underlying the continuous representation doctrine would not be served by its application here. Thus, Supreme Court properly granted defendant’s motion to dismiss with respect to the malpractice claims for audits conducted from 1995 through 1999.

Accordingly, the order of the Appellate Division should be reversed, with costs, the order of Supreme Court reinstated, and the certified question answered in the negative.

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

Order reversed, etc.

      . As part of each engagement and incident to each specific audit, defendant was required to render an opinion as to whether Lipper Convertibles’ internal control structure conformed with rule 17a-5 (17 CFR 240.17a-5) promulgated pursuant to the Securities Exchange Act of 1934, and prepare tax returns for the Funds and Schedule K-l’s for the Funds’ limited partners.

      . During oral argument on this motion, defendant acknowledged that plaintiffs malpractice claims based on the 2000 audits were timely under the Tolling Agreement. Thus, defendant only moved on the claims based on the years 1995 through 1999.


author: Pigott, J. Jones, J. (concurring).

text:
    [872 NE2d 1188, 840 NYS2d 882]
    The People of the State of New York, Respondent, v Juan Nieves-Andino, Also Known as Juan Andino-Nieves, Appellant.
    Argued June 6, 2007;
    decided June 28, 2007

      POINTS OF COUNSEL

      Center for Appellate Litigation, New York City (Jonathan M. Kirshbaum and Robert S. Dean of counsel), for appellant.
    The victim’s on-the-scene statement to a police officer, which was made after the incident was over and the assailant had left the scene, and which described in detail the past criminal conduct, was testimonial and barred under the Sixth Amendment pursuant to the Supreme Court’s decision in Davis v Washington (547 US 813 [2006]). (Crawford v Washington, 541 US 36; Lawrence v Chater, 516 US 163; People v Watson, 14 Misc 3d 942; United States v Clemmons, 461 F3d 1057; Matter of German F., 13 Misc 3d 642; People v Bradley, 8 NY3d 124; People v Nieves, 67 NY2d 125.)

      Robert T. Johnson, District Attorney, Bronx (Allen H. Saperstein, Joseph N. Ferdenzi and Nancy D. Killian of counsel), for respondent.
    Defendant’s claim that the statements were testimonial since there was no ongoing emergency is unpreserved for this Court’s review; nor can he establish that, as a matter of law, no emergency situation existed where the seriously wounded shooting victim lay sprawled on the street, and the police arrived a scant 15 minutes after the shooting. (People v Bradley, 8 NY3d 124; People v Kelly, 56 NY2d 873; People v Molnar, 98 NY2d 328; People v Knowles, 88 NY2d 763; People v Lyons, 81 NY2d 753; People v Baumann & Sons Buses, Inc., 6 NY3d 404; People v Gray, 86 NY2d 10; People v Tutt, 38 NY2d 1011; United States v Clemmons, 461 F3d 1057; Lawrence v Chater, 516 US 163.)
   OPINION OF THE COURT

Pigott, J.

Jose Millares was shot in the early hours of November 28, 2000 on the Bronx street where he sold drugs. His associate Michael O’Carroll called 911. Within minutes, two police officers arrived on the scene, and immediately went to Millares, who was lying, half on the street, half on the sidewalk, between two parked cars. There was a small crowd of onlookers. Officer Doyle bent down to observe the victim more closely. He was bleeding and. grimacing with pain. As soon as Officer Doyle had summoned an ambulance, he spoke with Millares, who replied in a low voice. The officer asked for, and Millares gave, his name, address and phone number. The officer then asked Millares what had happened. Millares responded that he had argued with a man named Bori, who had shot him three times, and he told the officer Bori’s address. Officer Riordan, meanwhile, searched the location for shell casings, finding four discharged casings from a .380 caliber pistol.

O’Carroll had witnessed the shooting and, after Millares died of his injuries, he informed the police that he had seen defendant Juan Nieves-Andino, who was known as Bori, shoot Mill-ares. O’Carroll knew defendant, who had sold drugs for Mill-ares; in 1999, defendant apparently ventured out on his own, and the two men quarreled.

After being apprehended in Puerto Rico and returned to New York, defendant was charged with second-degree murder and other crimes. He moved in limine for an order excluding, as hearsay, Millares’s statement that he had been shot by a man named Bori. Citing Crawford v Washington (541 US 36 [2004]), defendant argued that admission of the statement would violate his Sixth Amendment right to confront a witness against him. The People responded that the statement was admissible as an excited utterance and that its admission would not violate the Sixth Amendment. Supreme Court agreed with the People.

At trial, Officer Doyle testified that Millares told him he had been shot by a man named Bori, and that Millares had told him where Bori lived. O’Carroll testified that he saw defendant approach Millares, pull a .380 caliber pistol from the pouch of his “hoodie,” and fire four or five shots at Millares, before running away. In addition, autopsy evidence indicated that the cause of death was complications from a gunshot wound. The jury convicted defendant of second-degree murder.

The Appellate Division agreed with Supreme Court that defendant’s right of confrontation was not violated by the admission of Millares’s response to the officer’s questioning. A Judge of this Court granted leave to appeal, and we now affirm.

Our decision is guided by Crawford v Washington (541 US 36 [2004]) and Davis v Washington (547 US 813 [2006]). In those cases, the Supreme Court held that the Federal Confrontation Clause prohibits the “admission of testimonial statements of a witness who did not appear at trial unless [the witness] was unavailable to testify, and the defendant had had a prior opportunity for cross-examination” (id. at 821). Only statements that are testimonial make the absent declarant a “witness” within the meaning of the Confrontation Clause (see id.). In Davis, the Supreme Court explained that statements made in response to police inquiries are not testimonial when the circumstances “objectively indicat[e] that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency” (id. at 822).

Last year, in People v Bradley (8 NY3d 124 [2006]), we had occasion to apply the “primary purpose of the interrogation” analysis set forth in Davis to a statement, made by a woman to a police officer, that her boyfriend had assaulted her. The officer testified that, following a 911 call, he arrived at the door of an apartment to find the shaken woman who was bleeding profusely and walking with a limp. He asked her what had happened and she said her boyfriend had thrown her through a glass door. The officer then found the defendant in the apartment and observed a broken glass door. We held that “defendant’s right of confrontation was not violated by the admission into evidence of a statement made in response to a question from a police officer, where the officer’s evident reason for asking the question was to deal with an emergency” (8 NY3d at 125). Because the victim’s “statement was made when the officer could reasonably have assumed, and apparently did assume, that he had an emergency to deal with” (8 NY3d at 128), it was not testimonial.

Defendant argues that when the assailant, having left the crime scene, no longer poses a physical threat to the victim, the primary purpose of a police officer’s questioning of the victim cannot be to meet an ongoing emergency. We do not believe that Davis imposed such a restricted interpretation of what constitutes a continuing emergency. Whether an officer’s primary reason for making an inquiry was to deal with an emergency is a fact-based question that must necessarily be answered on a case-by-case basis. Even when the assailant has fled, the circumstances of the police officer’s questioning of the victim may objectively indicate that the officer reasonably assumed an ongoing emergency and acted with the primary purpose of preventing further harm.

Officer Doyle arrived at the scene of a recent shooting and, as soon as he had summoned medical help, asked the victim what had happened. Given the speed and sequence of events, the officer could not have been certain that the assailant posed no further danger to Millares or to the onlookers. His brief solicitation of pedigree information and information about the attacker’s identity was part of Officer Doyle’s reasonable efforts to assess what had happened to cause Millares’s injuries and whether there was any continuing danger to the others in the vicinity. In other words, the primary purpose of his inquiry was to find out the nature of the attack, “so that he could decide what, if any, action was necessary to prevent further harm” (Bradley, 8 NY3d at 127). “[T]he nature of what was asked and answered . . . viewed objectively, was such that the elicited statements were necessary to be able to resolve the present emergency, rather than simply to learn . . . what had happened in the past” (Davis, 547 US at 827). In short, Officer Doyle, like the officer in Bradley, reasonably assumed that there was an ongoing emergency. It follows that Millares’s responses to Officer Doyle’s inquiries were nontestimonial (see Bradley, 8 NY3d at 128) and that their admission did not implicate defendant’s right to confrontation.

Contrary to defendant’s urging, Officer Doyle’s questioning of Millares is distinguishable from the interrogation in the companion case to Davis, Hammon v Indiana, in which the Supreme Court held that the victim’s statement was testimonial. In Hammon, the officers questioned a husband and wife in separate rooms following a report of domestic disturbance, and the wife filled out a battery affidavit (see Davis, 547 US at 820). The husband remained under the control of the police during the wife’s questioning in Hammon, so that the police knew that the emergency had ended when they began their inquiries. By contrast, Officer Doyle had no knowledge of the assailant’s whereabouts when he began questioning Millares.

Our holding today is also consistent with the Supreme Court’s dictum in Davis that statements made by a victim of domestic violence to a 911 operator might be testimonial if they were made after the victim told the operator that the assailant had fled (see Davis, 547 US at 828-829). When a 911 operator or a police officer justifiably believes that the assailant no longer poses a threat to the victim, the purpose of his or her interrogation of the victim may “evolve” from dealing with an ongoing emergency to establishing past events with a view to later criminal prosecution (see Davis, 547 US at 828). On this record, however, the initial purpose of Officer Doyle’s inquiry did not change.

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

Jones, J. (concurring).

I agree with the majority that the Appellate Division’s order upholding defendant’s conviction should be affirmed, and that Millares’s statements regarding his pedigree information were nontestimonial. I write separately, however, because the circumstances objectively indicate that Millares’s statements concerning defendant’s identity, address and past conduct were not elicited by an interrogation designed to assist Officers Doyle and Riordan in meeting an ongoing emergency. To the contrary, they indicate that the primary purpose of the interrogation was to establish or prove past events potentially relevant to a later criminal prosecution. Accordingly, these statements were testimonial under Crawford v Washington (541 US 36 [2004]) and Davis v Washington (547 US 813 [2006]), and defendant’s right of confrontation was violated when the trial court admitted these statements. Nevertheless, I conclude that this error was harmless beyond a reasonable doubt.

I

Officers Doyle and Riordan both testified that on November 28, 2000, at about 4:14 a.m., they received a distress call over their radio stating that a man had been shot at 176th Street and Clay Avenue in the Bronx. Upon arriving at that location, both police officers exited their vehicle. Officer Doyle testified that he “went over to the victim, who was laying down.” Officer Riordan provided more detail as to what he and Officer Doyle did as they exited their vehicle. At trial, the following exchange took place:

“[people]: What, if anything, did you observe your partner do after you parked your car?
“[officer riordan]: Both my partner and myself walked over towards the crowd and I looked down and I saw a male laying down on the sidewalk.
“[people]: What did your partner do?
“[officer riordan]: My partner kneeled down next to the person laying down ....
“[people]: What did you notice about the person, what else?
“[officer riordan]: He was moaning loudly. I believe I heard people in the crowd, one or two saying, you know, that he was shot.
“[people]: Okay. And what, if anything, did you do?
“[officer riordan]: Well, upon hearing that[,] I immediately turned around and turned my flashlight on and started looking on the ground around the general area for any shell casings.”

Officer Riordan also testified that he left Officer Doyle with Millares.

Before speaking to Millares, Officer Doyle had an opportunity to observe that Millares was conscious, bleeding and grimacing in pain. Officer Doyle, who was trained to administer CPR, determined that he could not render any medical assistance to Millares. At trial, he was asked why he could not render medical assistance, to which he responded: “For the seriousness of his injury, I’m not trained to give assistance. I could make things worse.” Instead, Officer Doyle “called for an ambulance to respond to [a] man shot.” After calling the ambulance, Officer Doyle, who testified that he “wanted to get some information from [Millares],” bent down on one knee and began to question Millares. Officer Doyle asked Millares for pedigree information (his name, age, address and phone number) and then asked what happened. According to Officer Doyle’s testimony, Millares said he had an argument with defendant (whom he identified by his nickname “Bori”) and “Bori shot him three times.” Mill-ares also gave Officer Doyle specific information about where defendant resided. The following testimony was elicited at trial:

“[people]: Did the victim ever tell you where this person Bori lived?
“[officer doyle]: I don’t recall. I can’t remember.
“[people]: Would something refresh your memory?
“[officer doyle]: Yes, yes.
“[people]: I ask the witness be shown this piece of paper. . . .
“[people]: Does that refresh your recollection?
“[OFFICER DOYLE]: Yes.
“[people]: And did the victim, Jose Millares, indicate to you where this person Bori lived?
“[OFFICER DOYLE]: YeS.
“[people]: Where was that?
“[officer doyle]: 1818 Clay Avenue, Apartment 1A.”

After the ambulance came and went, Officer Doyle put up crime scene tape and cordoned off the area. When the detectives arrived on the scene, he gave them the information he had received from Millares.

II

The question before this Court is whether, objectively considered, Officer Doyle’s questioning of Millares produced testimonial statements. As explained by the Supreme Court in Davis, “[statements] are testimonial when the circumstances objectively indicate that there is no . . . ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution” (547 US at 822 [emphasis added]). Here, it is clear from the facts and circumstances that Officer Doyle’s interrogation of Millares was part of an investigation into past criminal conduct. One need only consider the actions of Officers Doyle and Riordan upon arriving on the scene to determine that they were not faced with an ongoing emergency or a concern of a future attack by the assailant (nor was there any indication that the assailant was still on the scene).

Right after Officers Doyle and Riordan came upon the crime scene, Officer Riordan immediately began to look for and recover evidence. Officer Doyle, on the other hand, initially sought to ensure Millares’s safety. Although Officer Doyle could not render medical assistance to Millares, he called an ambulance. However, as soon as he made that call, he could do nothing further for Millares except find out Millares’s pedigree information, which could assist the ambulance workers, and stay with him until the ambulance arrived. At this point, although Mill-ares was in extremis, Officer Doyle’s focus properly shifted from managing an emergency to investigating a past crime and gathering key information such as where defendant resided. Put differently, because it was objectively apparent that the emergency (i.e., the threat from the assailant) had passed, when Officer Doyle asked “what happened,” he was not trying to determine “what is happening.” Unlike the police officer in People v Bradley (8 NY3d 124 [2006]), Officer Doyle asked “what happened” not as a means of finding out what caused Millares’s injuries or determining what action needed to be taken in order to prevent further harm to Millares. Officer Doyle already had the answers to those questions before he spoke to Millares.

Thus, Officer Doyle’s interrogation of Millares regarding the crime committed against him, although completely appropriate and necessary, elicited testimonial statements—i.e., statements one would expect a witness to make at trial—which are subject to the constraints of the Confrontation Clause. As stated by the Davis Court:

“Police investigations themselves are, of course, in no way impugned by our characterization of their fruits as testimonial. Investigations of past crimes prevent future harms and lead to necessary arrests. While prosecutors may hope that inculpatory ‘non-testimonial’ evidence is gathered, this is essentially beyond police control. Their saying that an emergency exists cannot make it be so. The Confrontation Clause in no way governs police conduct, because it is the trial use of, not the investigatory collection of, ex parte testimonial statements which offends that provision. But neither can police conduct govern the Confrontation Clause; testimonial statements are what they are” (547 US at 832 n 6).

Recognizing that police officers at a crime scene may shift their focus from addressing an emergency to conducting an investigation, Davis and Bradley contemplate that police interrogations can yield nontestimonial and/or testimonial statements based on the circumstances of the particular case. Here, the majority’s view—that all of the statements made by Mill-ares to Officer Doyle were nontestimonial—fails to follow the Supreme Court’s holding in Davis that what “the circumstances objectively indicate” about the purpose of a particular interrogation is controlling. The circumstances in this case do not objectively indicate that the primary purpose of the interrogation was at all times to assist the police in dealing with an ongoing emergency. In fact, the very existence of an ongoing emergency is belied by the trial testimony of Officers Doyle and Riordan, as well as their collective conduct at the crime scene.

Ill

Violations of a criminal defendant’s Sixth Amendment right of confrontation are subject to a constitutional harmless error analysis (see People v Eastman, 85 NY2d 265, 276 [1995]). Unless the People show that the error is “harmless beyond a reasonable doubt,” such error requires reversal of the conviction and a new trial (Eastman, 85 NY2d at 276). “Such errors are considered harmless when, in light of the totality of the evidence, there is no reasonable possibility that the error affected the jury’s verdict” (People v Douglas, 4 NY3d 777, 779 [2005], citing People v Crimmins, 36 NY2d 230, 240-241 [1975]). In deciding whether the People have met their burden for establishing harmlessness, a reviewing court must “consider both the overall strength of the case against defendant and the importance [of the improperly admitted evidence to that case]” (People v Goldstein, 6 NY3d 119, 129 [2005]).

Here, although it was error to admit Millares’s statements concerning defendant’s identity, address and past conduct, there was no reasonable possibility that the error contributed to defendant’s conviction. O’Carroll’s testimony at trial described the shooting in great detail. Further, much of O’Carroll’s testimony was corroborated by other evidence presented at trial. For example, O’Carroll testified that defendant, a man he knew very well, drew a .380 caliber automatic pistol from his “hoodie” pocket and fired three shots at Millares. According to O’Carroll, Millares fell wounded, but defendant kept firing until the weapon jammed. O’Carroll’s description of how defendant “unjammed” the pistol was corroborated by the People’s ballistic expert at trial. O’Carroll also detailed how defendant stood “Might on top of [Millares]” and twice fired his gun again after the wounded victim had fallen to the ground and crawled a few feet. One of the two bullets fired by defendant ricocheted off the floor of nearby truck and also hit Millares. O’Carroll’s testimony on this point was corroborated by the medical examiner who testified that the three bullet wounds sustained by the victim were consistent with a gunman standing over a prostrate victim and pointing the gun down at him. O’Carroll also testified that after the shooting, he saw Millares bleeding from the back. According to the medical examiner, Millares was shot in the back.

In light of O’Carroll’s testimony and the corroborating evidence presented at trial, there was no reasonable possibility that the trial court’s erroneous admission of the above-mentioned statements influenced the jury’s verdict. Thus, the People have met their burden for establishing that the error was harmless beyond a reasonable doubt.

Chief Judge Kaye and Judges Graffeo and Read concur with Judge Pigott; Judge Jones concurs in result in a separate opinion in which Judges Ciparick and Smith concur.

Order affirmed.

       Accordingly, defendant’s unduly restrictive view of what constitutes an ongoing emergency (see majority op at 15) is unavailing.