author: Pigott, J. Chief Judge Lippman (concurring).

text:
    [937 NE2d 74, 910 NYS2d 410]
    Nocenzo Cusumano et al., Respondents, v City of New York, Appellant.
    Argued September 16, 2010;
    decided October 14, 2010

      POINTS OF COUNSEL

      Michael A. Cardozo, Corporation Counsel, New York City (Elizabeth S. Natrella and Pamela Seider Dolgow of counsel), for appellant.
    I. This Court should direct dismissal of this action in its entirety for failure to establish a prima facie case under General Municipal Law § 205-a, for the reasons stated in the Appellate Division dissenting opinion. Because the handrail requirements of Administrative Code of the City of New York § 27-375 (f) were inapplicable, plaintiffs reliance on that provision to establish a violation of Administrative Code §§ 27-127 and 27-128 was legally barred, and plaintiffs only other evidence was either conclusory or inapplicable as a matter of law. (Cohen v Hallmark Cards, 45 NY2d 493; Giuffrida v Citibank Corp., 100 NY2d 72; Zanghi v Niagara Frontier Transp. Commn., 85 NY2d 423; Galapo v City of New York, 95 NY2d 568; Desmond v City of New York, 88 NY2d 455; Williams v City of New York, 2 NY3d 352; Hotaling v City of New York, 55 AD3d 396, 12 NY3d 862; Dooley v Vornado Realty Trust, 39 AD3d 460; Weiss v City of New York, 16 AD3d 680; Walker v 127 W. 22nd St. Assoc., 281 AD2d 539.) II. Solely in the alternative, a new trial should be granted. (Feblot v New York Times Co., 32 NY2d 486; Bernstein v City of New York, 69 NY2d 1020; Marquart v Yeshiva Machezikel Torah D’Chasidel Belz of N.Y., 53 AD2d 688; Franco v Jay Cee of N.Y. Corp., 36 AD3d 445; People v Duncan, 46 NY2d 74; Cooler & Gell v Hartmarx Corp., 496 US 384; Pullman-Standard v Swint, 456 US 273.)

      Miller & Eisenman, LLP, New York City (Michael P. Eisenman of counsel), for respondents.
    I. Administrative Code of the City of New York §§ 27-127 and 27-128 provide independent predicates upon which liability may be imposed under General Municipal Law § 205-a. (Williams v City of New York, 2 NY3d 352; Giuffrida v Citibank Corp., 100 NY2d 72; Terranova v New York City Tr. Auth., 49 AD3d 10; Brennan v New York City Hous. Auth., 302 AD2d 483; Lustenring v 98-100 Realty, 1 AD3d 574; Rabinowitz v City of New York, 286 AD2d 724; Hart v DiPiazza, 262 AD2d 283.) II. Sufficient evidence was introduced at trial to rationally lead the jury to conclude that defendant violated Administrative Code of the City of New York §§ 27-127 and 27-128.) (Cohen v Hallmark Cards, 45 NY2d 493; Munoz v City of New York, 55 AD3d 697.) III. Once defendant elected to install a handrail in the main stairwell between the basement and the first floor, it had a duty to act reasonably and carefully. (Glanzer v Shepard, 233 NY 236; Marks v Narnbil Realty Co., 245 NY 256; Melodee Lane Lingerie Co. v American Dist. Tel. Co., 18 NY2d 57; Frazer v Bader, 263 App Div 838; Bucek v Merritt, 37 AD2d 905; Parker v Jenkins, 135 Misc 666; Decorato v Cozzoli Bros., LLC, 16 Misc 3d 1108[A], 2007 NY Slip Op 51347[U]; Steelworkers v Rawson, 495 US 362.)
   OPINION OF THE COURT

Pigott, J.

On December 22, 1999, plaintiff Nocenzo Cusumano, a firefighter in the New York City Fire Department attending a first responders training session, fell down a flight of stairs that ran from the first floor to the basement of a building owned by defendant City of New York. Plaintiff commenced this action against the City pursuant to General Municipal Law § 205-a, asserting a statutory cause of action for firefighters who sustain a line of duty injury “as a result of any neglect, omission, willful or culpable negligence of any person or persons in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the . . . city governments” (General Municipal Law § 205-a [1]). To recover under that section, however, a firefighter “must demonstrate injury resulting from negligent noncompliance with a requirement found in a well-developed body of law and regulation that imposes clear duties” (Williams v City of New York, 2 NY3d 352, 364 [2004] [discussing General Municipal Law § 205-e, the sister provision of section 205-a] [internal quotation marks and citations omitted]).

Plaintiff contended at the liability trial that he slipped on debris at the top of the stairs and, due to a poorly constructed handrail, he was unable to grasp the handrail to prevent his fall. He relied on three provisions of the Administrative Code of the City of New York as predicates for his section 205-a claim, namely, sections 27-127, 27-128 and 27-375 (f). The first two are general provisions that require that “[a] 11 buildings and all parts thereof... be maintained in a safe condition,” that “[a]ll service equipment, . . . devices, and safeguards that are required in a building ... be maintained in good working order” and that “[t]he owner shall be responsible at all times for the safe maintenance of the building and its facilities.” Section 27-375, entitled “Interior stairs,” mandates, among other things, that interior stair “[h]andrails shall provide a finger clearance of one and one-half inches” (Administrative Code § 27-375 [f]).

Two experts testified for the plaintiff that the handrail violated section 27-375 (f) and was therefore unsafe. After the parties rested, the City argued at the charge conference that section 27-375 (f) was inapplicable because the stairs constituted “access stairs” pursuant to Administrative Code § 27-232, as opposed to “interior stairs” which must provide egress to the outside. Supreme Court held as a matter of law that the stairs constituted “interior stairs” and prohibited the City from arguing the inapplicability of section 27-375 (f) during summation. Plaintiffs counsel, on the other hand, argued to the jury that the City violated section 27-375 (f)’s height and clearance requirements, and Supreme Court issued a jury charge relative to sections 27-127, 27-128 and 27-375 (f).

In response to separate interrogatories, the jury found that the City violated Administrative Code §§ 27-127 and 27-375 (f); the court did not submit an interrogatory relative to section 27-128. Following a separate damages trial, the City moved to set aside the verdict. As to the liability portion of the motion, the City reiterated, its argument that section 27-375 (f) was inapplicable because the stairs at issue constituted “access stairs,” not “interior stairs.” It further argued that the jury’s finding of liability under section 27-127 was unsustainable because the evidentiary basis for the jury’s finding was the City’s noncompliance with the inapplicable section 27-375 (f). Supreme Court denied the motion, holding that the City should have pleaded as an “affirmative defense” the inapplicability of section 27-375 (f) (2006 NY Slip Op 30626DJ], *3 [2006]).

The Appellate Division, with one Justice dissenting, modified the jury’s damages award to the extent of ordering plaintiff to stipulate to a reduction thereof or face a new trial on that issue (63 AD3d 5, 12 [2d Dept 2009]). It unanimously held, however, that section 27-375 (f) did not apply to the underlying facts because the stairs did not constitute “interior stairs” as defined by the Administrative Code, and that Supreme Court improperly shifted the burden to the City of demonstrating the inapplicability of section 27-375 (f) (id. at 8-9, 14). However, the majority and the dissent parted company as to whether plaintiff presented sufficient evidence independent of the section 27-375 (f) violation to establish that the City violated sections 27-127 and 27-128, with the majority concluding that he had (see id. at 9-10), and the dissent arguing that those sections did not provide a sufficient predicate for liability under General Municipal Law § 205-a (see id. at 17).

The Appellate Division properly concluded that section 27-325 (f) is inapplicable. That code provision applies to “interior stairs,” which are defined as “stair[s] within a building, that serve[ ] as a required exit” (Administrative Code § 27-232). By all accounts, the stairs from where plaintiff fell did not serve as an “exit” as defined by the Administrative Code (see id.), but rather as a means of walking from the first floor to the basement. Therefore, Supreme Court erred in denying the City’s motion to dismiss the section 205-a claim to the extent it was premised on the City’s alleged violation of section 27-375 (f).

The effects of this error are not limited to the claim based on that provision, however, because it cannot be assumed that the jury viewed plaintiffs’ experts’ handrail testimony in a vacuum. Both experts testified that the handrail clearance requirements were governed by section 27-375 (f) and that the City violated those requirements. Further conflating the distinction among the Administrative Code sections was testimony that the City violated sections 27-127 and 27-128 because it violated section 27-375 (f). Supreme Court’s erroneous submission of section 27-375 (f) to the jury, coupled with the expert testimony, renders it impossible to discern the basis of the jury’s verdict.

We decline the City’s invitation to address the issue of whether sections 27-127 and 27-128 form a sufficient independent predicate to support a General Municipal Law § 205-a claim. There is no record evidence that the City contested plaintiffs’ argument that those sections provided an independent predicate, as the record indicates that the City objected to the applicability of those sections only to the extent that they were interwoven with section 27-375 (f).

Accordingly, the order of the Appellate Division should be reversed, with costs, and a new trial ordered. The certified question should not be answered upon the ground that it is unnecessary.

Chief Judge Lippman (concurring).

I agree with the majority that the trial was tainted by testimony regarding New York City Administrative Code § 27-375, and therefore, a new trial is necessary to determine whether plaintiff is entitled to recovery under General Municipal Law § 205-a. Nonetheless, I disagree with the assertion that defendant-appellant City of New York did not preserve the argument that New York City Administrative Code § 27-127 is an insufficient independent predicate for section 205-a liability. The argument was made at the charge conference of the liability trial and again on the motion to set aside the verdict. Accordingly, I believe we are obliged to reach this question on the merits.

For a claim brought under General Municipal Law § 205-a to survive, a plaintiff must demonstrate a line-of-duty injury, which “occurs directly or indirectly as a result of any neglect, omission, willful or culpable negligence of any person or persons in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments” (General Municipal Law § 205-a [1] [emphasis added]). Section 205-a liability therefore does not stand alone but must be predicated on a violation of a separate legal requirement.

The language “directly or indirectly” in section 205-a (1) has been accorded broad application by the courts, “in light of the clear legislative intent to offer firefighters greater protections” (Giuffrida v Citibank Corp., 100 NY2d 72, 80 [2003]). Still, we have established some clear limits on the possible predicates for section 205-a recovery. As we explained in Williams v City of New York (2 NY3d 352, 364 [2004]):

“[A]s a prerequisite to recovery, a [plaintiff] must demonstrate injury resulting from negligent noncompliance with a requirement found in a well-developed body of law and regulation that imposes clear duties. At the same time, a series of amendments . . . teaches us that we should apply this provision expansively so as to favor recovery . . . whenever possible” (emphasis added; internal quotation marks and citations omitted).

At issue here is whether section 27-127 of the Administrative Code is part of a sufficiently “well-developed body of law” that imposes clear duties on a building owner, such that noncompliance with this code section may be the basis for section 205-a recovery. Section 27-127 provides:

“All buildings and all parts thereof shall be maintained in a safe condition. All service equipment, means of egress, devices, and safeguards that are required in a building by the provisions of this code or other applicable laws or regulations, or that were required by law when the building was erected, altered, or repaired, shall be maintained in good working order.”

In concluding that section 27-127 is a proper statutory predicate for plaintiff’s section 205-a recovery here, the Second Department properly relied on ample Appellate Division case law (see Terranova v New York City Tr. Auth., 49 AD3d 10, 17 [2d Dept 2007], lv denied 11 NY3d 708 [2008]; see also Pirraglia v CCC Realty NY Corp., 35 AD3d 234, 235 [1st Dept 2006]; Lynch v City of New York, 14 AD3d 347, 348-349 [1st Dept 2005]; Kelly v City of New York, 6 AD3d 188 [1st Dept 2004]). Further, although this Court has not had a case granting section 205-a recovery through section 27-127, the writings in some of our foundational section 205-a and section 205-e cases assume that such recovery is possible (see Giuffrida, 100 NY2d at 79 n 4; see also Williams, 2 NY3d at 368 [rejecting plaintiffs General Municipal Law § 205-e recovery predicated on section 27-127 because plaintiff did not allege concretely that the building was maintained in an unsafe manner, not because section 27-127 was an insufficient predicate for recovery]).

Moreover, we have stated before that the series of legislative amendments in response to narrow Appellate Division decisions have led us to “apply this provision [i.e., section 205-a] expansively so as to favor recovery by [firefighters] whenever possible” (Williams, 2 NY3d at 364 [internal quotation marks omitted]). The arguments against basing section 205-a recovery on a section 27-127 violation ignore the legislative intent of broad protection of firefighters and also our statement in Giuffrida that “a plaintiff need only establish a ‘practical or reasonable connection’ between the statutory or regulatory violation and the claimed injury” (Giuffrida, 100 NY2d at 81, quoting Mullen v Zoebe, Inc., 86 NY2d 135, 140 [1995]).

Still, the Appellate Division dissent insists that section 27-127 does not impose clear duties or particular mandates that are parts of well-developed bodies of law and regulation, simply because the “safe maintenance” language of section 27-127 does not specifically address handrails or finger clearance in stairwells. It is not contested that a violation of section 27-127 is usually found where a “specific structural or design defect” exists in the building (see Beck v Woodward Affiliates, 226 AD2d 328, 330 [2d Dept 1996]; see also Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559, 566 [1987] [property owner had “both a general responsibility for safe maintenance of the building and its facilities and specific obligations pertaining to minimum handrail clearance” (citations omitted)]).

However, no additional statute is necessary to permit a conclusion in the present case that “two pieces of wood nailed to each other and nailed to the wall” (63 AD3d 5, 10 [2d Dept 2009] [internal quotation marks omitted]), passing for a handrail, constitutes a specific design defect. Instead, a violation of section 27-127 may be proved to a jury with evidence such as Fire Code specifications, architectural standards, and other “industry-wide standards or accepted practices in the field” (Burke v Canyon Rd. Rest., 60 AD3d 558, 559 [1st Dept 2009]; see also Jones v City of New York, 32 AD3d 706, 706-707 [1st Dept 2006] [requiring evidence of a “particular professional or industry standard” to substantiate assertions about the alleged safety practice of anchoring garbage receptacles to sidewalks]).

If this Court were to accept the assertion that plaintiff could not recover in the absence of a statute specifically concerned with the space between a handrail and a wall, the purpose of section 27-127 would be eviscerated. As the Second Department perceptively notes, if this view of section 27-127 were to prevail, the code section would be ‘‘render[ed] . . . inapplicable to all but the most commonplace conditions” (63 AD3d at 10). A trial court would be unable to rule on the existence of a hazardous condition that any casual observer could discern and unanimous expert testimony could confirm, unless an additional statute dictated the precise geometric dimensions of all features of a safe stairwell.

In conclusion, a rejection of section 27-127 as a predicate for plaintiff firefighter’s recovery is at odds with the Legislature’s intent in the revision of section 205-a: to expand the avenues of recovery for injuries in the line of duty. I would therefore confirm that section 27-127 may indeed constitute a proper, independent predicate for section 205-a recovery.

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

Order reversed, etc.

       Both Administrative Code §§ 27-127 and 27-128 were repealed effective July 1, 2008 and replaced by section 28-301.1.

        Williams involved General Municipal Law § 205-e—the counterpart to section 205-a that applies to police officers. The two statutes have been interpreted interchangeably.


source: Caselaw Access Project

author: Graffeo, J.

license: Public Domain

text:
    [937 NE2d 528, 910 NYS2d 771]
    The People of the State of New York, Respondent, v Dana R. Bradford, Appellant.
    Argued September 15, 2010;
    decided October 19, 2010

      POINTS OF COUNSEL

      Timothy P. Donaher, Public Defender, Rochester (Kimberly F. Duguay of counsel), for appellant.
    The Appellate Division misapplied the law of attenuation when: (1) it failed to consider the factors of attenuation in light of the investigatory purpose for the illegal arrest; and (2) it required the presence of egregious police misconduct for application of the exclusionary rule. (People v Morales, 42 NY2d 129; People v Bigelow, 66 NY2d 417; People v Borges, 69 NY2d 1031; People v Centono, 76 NY2d 837; People v Hicks, 68 NY2d 234; People v Yukl, 25 NY2d 585; People v Ryan, 12 NY3d 28; People v Battaglia, 82 AD2d 389, 56 NY2d 558; People v Brnja, 50 NY2d 366; Brown v Illinois, 422 US 590.)

      Michael C. Green, District Attorney, Rochester (Geoffrey Kaeuper of counsel), for respondent.
    The Appellate Division applied the correct legal standard for attenuation and its determination had record support. (People v Rogers, 52 NY2d 527, 454 US 898; United States v Crews, 445 US 463; Silverthorne Lumber Co. v United States, 251 US 385; People v Russell, 269 AD2d 771; People v Boodle, 47 NY2d 398, 444 US 969; People v Martinez, 37 NY2d 662; People v Stith, 69 NY2d 313; People v Jones, 2 NY3d 235; People v Burr, 70 NY2d 354, 485 US 989; People v Conyers, 68 NY2d 982.)
   OPINION OF THE COURT

Graffeo, J.

This appeal requires us to consider whether there is record support for the Appellate Division’s conclusion that the exclusionary rule does not require the suppression of defendant’s confession. Because there is a basis in the record for the Appellate Division’s determination that the confession was sufficiently attenuated from defendant’s initial detention by the police, we affirm.

In November 2003, defendant began a relationship with a young woman he met on a telephone “chat line.” He was a 37-year-old registered sex offender; she was a 16 year old who had been adjudicated a “person in need of supervision” under article 7 of the Family Court Act. In order to visit with Jane, defendant would pick her up near her mother’s house in Ontario County, drive her to his apartment in Monroe County (a 30 to 45 minute trip each way) and then return her home later in the day. During these visits, defendant usually supplied Jane with alcoholic beverages and he engaged in sexual intercourse with her on several occasions.

Defendant and Jane eventually made plans to celebrate New Year’s Eve. On the afternoon of December 31, 2003, Jane and her 15-year-old sister (also adjudicated a “person in need of supervision”) were preparing to leave their house when their mother’s boyfriend overheard Jane on the telephone telling someone that she was going out in 10 minutes. When the mother’s boyfriend left for work shortly thereafter, he noticed a grey Mitsubishi parked around the corner from the house, with a man in the driver’s seat speaking on a cell phone. Because he did not recognize the car or the driver, he jotted down the vehicle’s license plate number before continuing to his workplace.

At around 5:00 p.m. that evening, Jane’s mother left her job, went food shopping and then drove to her boyfriend’s place of employment to bring him dinner. He told her what he had observed earlier that day and provided her with the vehicle’s license plate number. On her way home, she decided to stop at the State Police barracks to give them information about her daughters and the vehicle that her boyfriend had observed. Supplied with this information, the trooper undertook a search of vehicle registration records and learned that the grey Mitsubishi belonged to defendant. The computer search also revealed defendant’s status as a registered sex offender and his home address in Rochester.

When Jane’s mother arrived home at approximately 9:30 p.m., she discovered that neither girl was present, despite their 8:30 p.m. curfew. She telephoned the trooper that she had spoken to earlier and he issued a “file 6” bulletin, which notified police agencies to be on the lookout for two young women suspected as runaways. A short time later, a trooper patrolling in the vicinity of defendant’s residence received a police radio transmission directing him to defendant’s address, where he located the grey Mitsubishi with the identified license plate in the parking lot. The trooper saw defendant exiting the apartment building with two females who matched the description of Jane and her sister. As defendant walked to the parking lot, he noticed the State Police vehicle and changed direction. The trooper immediately approached defendant, confirmed his name, handcuffed him and placed him in the police vehicle. After conferring with Jane and her sister, the trooper called for another police car to transport the girls.

Upon arriving at the State Police barracks at about 11:00 p.m., defendant was taken to a room and issued Miranda warnings. He indicated that he was willing to speak to the trooper but the officer did not engage in further conversation at that point. Jane and her sister were placed in a different room and interviewed. Jane told the police that defendant was her boyfriend and that they had engaged in sexual intercourse on a number of occasions at his apartment. Her sister provided some corroborating information and both young women acknowledged that defendant had supplied them with alcohol.

Defendant was confronted with these statements at approximately 1:00 a.m. He then admitted to the police that he gave Jane alcohol and had intercourse with her once, though he claimed that Jane had represented that she was 17 years old. Defendant eventually revised his story, admitting that he had sex with Jane three times and that both girls had consumed alcohol in his presence. After an investigator prepared his typewritten confession, defendant again waived his Miranda rights and signed the document shortly before 4:00 a.m.

As a result of the admissions he provided and the statements of the sisters, defendant was charged with multiple counts of rape in the third degree (see Penal Law § 130.25 [2]) and endangering the welfare of a child (see Penal Law § 260.10 [1]). Defendant moved to suppress his statements to the police, claiming that his arrest in the parking lot of his apartment building lacked probable cause. County Court denied the motion, concluding that it was proper to detain defendant to conduct a preliminary investigation and that the statements from Jane and her sister justified the arrest. Following a jury trial, defendant was convicted of four counts of statutory rape in the third degree and six counts of endangering the welfare of a child. Defendant was sentenced as a second felony offender to an aggregate 4V2-to-9-year term of imprisonment and orders of protection were issued relating to Jane and her sister.

The Appellate Division modified by amending the length of time that the orders of protection would remain in force, but otherwise affirmed (61 AD3d 1419 [4th Dept 2009]). The court determined that defendant had been arrested without probable cause, but that his inculpatory statements were admissible because they were sufficiently attenuated from the arrest. A Judge of this Court granted leave to appeal (13 NY3d 794 [2009]).

Evidence that is obtained through illegal police action is not automatically subject to the exclusionary rule (see e.g. People v Jones, 2 NY3d 235, 241-242 [2004]; People v Young, 55 NY2d 419, 425 [1982], cert denied 459 US 848 [1982]). For example, a confession that is made after an arrest without probable cause is not subject to suppression if the People adequately demonstrate that the inculpatory admission was “attenuated” from the improper detention; in other words, it was “acquired by means sufficiently distinguishable from the arrest to be purged of the illegality” (People v Conyers, 68 NY2d 982, 983 [1986]). The attenuation doctrine requires a court to consider “the temporal proximity of the arrest and the confession, the presence of intervening circumstances and, particularly, the purpose and flagrancy of the official misconduct” (id.; see Brown v Illinois, 422 US 590, 603-604 [1975]). Because application of the attenuation doctrine is a mixed question of law and fact (see e.g. People v Ryan, 12 NY3d 28, 31 [2009]; People v Divine, 6 NY3d 790, 791 [2006]), our review is limited and the determination of the Appellate Division may be disturbed only if there is no evidence in the record to support it (see People v Paulman, 5 NY3d 122, 129 [2005]).

We hold that the proof in this case is sufficient to support the finding of attenuation. After defendant was initially detained

around 10:30 p.m., he was taken to a police barracks and given Miranda warnings about 30 minutes later (see People v Conyers, 68 NY2d at 983 [post-arrest Miranda warnings are an “important” attenuation factor]; Brown v Illinois, 422 US at 603). Defendant proceeded to waive his Miranda rights and offered to talk to the police. But he was not questioned at that time; rather, his interrogation did not begin until 1:00 a.m.—about 21/2 hours after defendant was first handcuffed (see generally People v Rogers, 52 NY2d 527, 532 [1981] [three hours], cert denied 454 US 898 [1981]).

In the interim, the police secured statements from Jane and her younger sister, which clearly established probable cause for defendant’s arrest. Because those statements were obtained independent of defendant’s detention, they were not subject to suppression. The fact that defendant gave a confession after being confronted with the statements constitutes a “significant attenuating factor” that reasonably could be deemed a “precipitating cause” of his admissions (id. at 534). Defendant was also not subjected to any pre-Miranda interrogation, nor was he mistreated while in police custody (see id.). Thus, it was reasonable for the Appellate Division to conclude that defendant’s confession was the product of the independently obtained statements from Jane and her sister, along with his willingness to speak to the police—not the result of the initial detention in the parking lot.

In addition, there is no demonstrable proof in the record that the initial detention of defendant was motivated by bad faith or a nefarious police purpose (see e.g. People v Borges, 69 NY2d 1031, 1033 [1987]; People v Boodle, 47 NY2d 398, 404 [1979], cert denied 444 US 969 [1979]; People v Martinez, 37 NY2d 662, 670 [1975]). Although the Appellate Division decided that probable cause was lacking when defendant was apprehended—an issue we do not reach—the trooper nevertheless had a “fair basis” (People v Martinez, 37 NY2d at 671) for approaching and detaining defendant: he knew that defendant was a registered sex offender in the company of two teenage girls who had been reported as missing by their mother; that they were at defendant’s apartment complex at approximately 10:30 p.m.; and that defendant’s car had been observed in close proximity to the girls’ residence on the last occasion that they had been seen. While reasonable minds may differ as to the precise level of objective suspicion that was present at that moment and whether the actual extent of police interference was justified, the trooper undoubtedly had a good faith basis for the intervention. Simply put, this is not the type of situation that the exclusionary rule’s deterrence principle was designed to address.

In sum, there is record support for the Appellate Division’s application of the attenuation doctrine in this case and we therefore lack the power to disturb its determination.

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

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

Order affirmed.

       Because the girl’s identity must remain confidential (see Civil Rights Law § 50-b), in this opinion we refer to her as “Jane.”


author: Chief Judge Lippman. Smith, J. (dissenting).

text:
    [938 NE2d 917, 912 NYS2d 484]
    Ronald Geraci, Respondent, v Thomas Probst, Individually and Doing Business as Hendrickson Truck Center, et al, Appellants.
    Argued September 13, 2010;
    decided October 14, 2010

      POINTS OF COUNSEL

      Rivkin Radler LLP, Uniondale (Evan H. Krinick and Harris J. Zakarin of counsel), for appellants.
    I. Admission into evidence of the Newsday article constituted reversible error warranting a new trial. (Persky v Bank of Am. N.A., 261 NY 212; Board of Mgrs. of 195 Hudson St. Condominium v 195 Hudson St. Assoc., LLC, 63 AD3d 523; Firth v State of New York, 98 NY2d 365; Rinaldi v Viking Penguin, 52 NY2d 422; Schoepflin v Coffey, 162 NY 12; Macy v New York World-Tel. Corp., 2 NY2d 416; Karaduman v Newsday, Inc., 51 NY2d 531; Khan v New York Times Co., 269 AD2d 74; Jee v New York Post Co., 176 Misc 2d 253, 260 AD2d 215, 93 NY2d 817; Hoffman v Landers, 146 AD2d 744.) II. Supreme Court improperly determined, as a matter of law, that the June 4, 2002 letter was defamatory per se, thereby removing that ultimate determination from the jury. (Liberman v Gelstein, 80 NY2d 429.) III. Numerous other evidentiary errors, considered either singularly or cumulatively, constitute reversible error, thereby warranting a new trial. (Macy v New York World-Tel. Corp., 2 NY2d 416; Hill v Hayes, 18 AD2d 485, 15 NY2d 986; Reed v State of New York, 78 NY2d 1; Nucci v Proper, 95 NY2d 597; People v Romero, 78 NY2d 355; Neils v Darmochwal, 6 AD3d 589; Mazurek v Home Depot US.A, 303 AD2d 960; Andrea u Amone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C. [Habiterra Assoc.], 5 NY3d 514; Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725; Brill v City of New York, 2 NY3d 648.)

      Hopkins & Kopilow, Garden City (Michael T. Hopkins, Nicholas F. Miraglia and William Geraci of counsel), for respondent.
    I. Defendant is liable for article-related damage. (Garrison v Sun Print. & Publ. Assn., 207 NY 1; Jones v State of New York, 96 AD2d 105; Karaduman v Newsday, Inc., 51 NY2d 531; Macy v New York World-Tel. Corp., 2 NY2d 416; Schoepflin v Coffey, 162 NY 12; Immuno AG. v Moor-Jankowski, 77 NY2d 235;
      Armstrong v Simon & Schuster, 85 NY2d 373; Firth v State of New York, 98 NY2d 365; Hoffman v Landers, 146 AD2d 744; Jee v New York Post Co., 176 Misc 2d 253.) II. Defendant did not preserve the “republication liability cutoff’ argument he has pursued on appeal. (Karaduman v Newsday, Inc., 51 NY2d 531; Macy v New York World-Tel. Corp., 2 NY2d 416; Schoepflin v Coffey, 162 NY 12; Bassell v Elmore, 48 NY 561; Bloodgood v Lynch, 293 NY 308; People v Kozlowski, 11 NY3d 223; Martin v City of Cohoes, 37 NY2d 162.) III. Defendant’s statement “Mr. Geraci shared in that commission” is matter of law defamatory per se. (Liberman v Gelstein, 80 NY2d 429; Garrison v Louisiana, 379 US 64; Matovcik v Times Beacon Record Newspapers, 46 AD3d 636; Kotowski v Hadley, 38 AD3d 499; Gjonlekaj v Sot, 308 AD2d 471; Wasserman v Haller, 216 AD2d 289; Gatz v Otis Ford, 262 AD2d 280; Four Star Stage Light, v Merrick, 56 AD2d 767; Moore v Francis, 121 NY 199; Crane v New York World Tel. Corp., 308 NY 470.) IV The contemplated curative charge “cured” an “ill” related only to falsity, a fact established as a matter of law, obviating need for a charge. (Macy v New York World-Tel. Corp., 2 NY2d 416.) V The record includes evidence sufficient to render letter-investigation causation a jurysubmissible question of fact. (Garrison v Sun Print. & Publ. Assn., 207 NY 1; Cohen v Hallmark Cards, 45 NY2d 493; Dominguez v Manhattan & Bronx Surface Tr. Operating Auth., 46 NY2d 528; Derdiarian v Felix Contr. Corp., 51 NY2d 308; Macy v New York World-Tel. Corp., 2 NY2d 416; Spett v President Monroe Bldg. & Mfg. Corp., 19 NY2d 203.) VI. Andrew Buglione’s testimony regarding out-of-court statements is—regardless of those statements’ truth—relevant proof of damage to plaintiffs reputation, and was used only for this nonhearsay purpose. (People v Yazum, 13 NY2d 302; People v Caviness, 38 NY2d 227.) VII. The court was within its discretion to allow testimony from a witness disclosed, with no apparent prejudice, 74 days before trial. (Diamantstein v Friedman, 199 AD2d 458; Overeem v Neuhoff, 254 AD2d 398; Stark v Semeran, 244 AD2d 894; Beck v Albany Med. Ctr. Hosp., 191 AD2d 854; Andrea v Amone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, PC. [Habiterra Assoc.], 5 NY3d 514; Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725; Brill v City of New York, 2 NY3d 648; Neils v Darmochwal, 6 AD3d 589; Mazurek v Home Depot U.S.A., 303 AD2d 960; Delaney v Philhern Realty Holding Corp., 280 NY 461.)
   OPINION OF THE COURT

Chief Judge Lippman.

The primary issue presented by this libel action is whether it was error to admit into evidence a republication of defendant Thomas Probst’s defamatory statement, made years later without his knowledge or participation. We find that it was error and we therefore modify to vacate the damage award.

Plaintiff Geraci and defendant Probst are former business associates who had been partners in an enterprise engaged in selling fire trucks to fire districts on Long Island. Geraci was also a commissioner of the Syosset Fire District. In March 2002, after the business relationship soured, Geraci sent a letter to the Board of Fire Commissioners stating, among other things, that he “ha[d] not nor [would he] ever profit from any sales related to the Syosset Fire District.”

In response, Probst wrote a letter to the Board of Fire Commissioners disputing Geraci’s representation. Probst wrote that “[t]o be charitable,” plaintiffs statement was “inaccurate.” Probst stated that he was including a commission statement from the manufacturer showing that their business had received a commission from the sale of a Syosset rescue vehicle. Probst further represented that “Mr. Geraci shared in that commission.” It is undisputed that the accusation that Geraci had received any commission relating to sales of Syosset vehicles was false.

Plaintiff commenced this defamation action in March 2003 to recover for damages incurred as a result of Probst’s statement. During the trial, plaintiff sought to introduce into evidence portions of an article that had appeared in Newsday on November 19, 2005—more than 2V2 years after plaintiff brought suit and more than three years after Probst wrote his letter. The article, as redacted, stated that the Nassau County District Attorney’s office was investigating certain transactions involving the sale of fire apparatus to the Syosset Fire District and that a former business partner had alleged that one of the deals “included a hidden commission for Geraci, even though he had told his fellow commissioners that he’d make nothing from it.” The article further stated that “an estranged business partner” had alleged that Geraci had taken a $16,000 commission on one of the truck sales and that, although Geraci denied same, a senior official with the truck manufacturer confirmed that the price of the truck included a $16,000 commission. A large color photograph of Geraci also appeared with the article.

When the parties first discussed the issue of whether the article should be admitted, defense counsel noted the long delay between Probst’s letter and the Newsday article and argued that Probst had nothing to do with the article—he had not contacted Newsday and was not interviewed for the article— and that it would be inflammatory and prejudicial to his client. The court reserved decision, but indicated that it was “not crazy about some further investigative report down the road apiece.” When the parties subsequently revisited the issue, plaintiffs counsel argued that the article was not being offered as a republication, but on the issue of damages to show how far the allegations had circulated. Plaintiffs counsel also argued that, even if it could be considered republication, Probst would still be responsible for it because he should have reasonably anticipated that it would be newsworthy. Defense counsel repeated his earlier arguments and noted that plaintiff could have sued Newsday directly. The court ultimately admitted the article.

The court instructed the jury that Probst’s statement was defamatory per se because it alleged that plaintiff had committed a crime—a violation of the General Municipal Law related to the exercise of his public office—and that the statement was false. The sole question left for the jury on the issue of liability was whether plaintiff had proven by clear and convincing evidence that Probst made the statement with actual malice.

The jury found in plaintiffs favor and awarded him $2,950,000 in present and future damages, including $500,000 in punitive damages. Supreme Court granted defendants’ motion to set aside the jury verdict, finding it excessive, and granted defendants a new trial unless plaintiff consented to a reduced award of $800,000, including $50,000 in punitive damages. Plaintiff consented to the reduced award and both parties appealed.

The Appellate Division affirmed the judgment and dismissed plaintiffs cross appeal for lack of aggrievement (61 AD3d 717 [2d Dept 2009]). The Court found defendants’ argument that the trial court erred by allowing evidence of the republication of Probst’s defamatory statements in the Newsday article unpreserved for review. The Court also rejected defendants’ remaining arguments, including the argument that Supreme Court erred by instructing the jury that Probst’s statement was defamatory per se. This Court granted defendants leave to appeal (13 NY3d 709 [2009]) and we now modify.

As a threshold matter, we disagree with the Appellate Division that defendants’ republication argument is unpreserved for review. As noted above, the parties discussed the issue with the court on more than one occasion and, although defendants did not expressly frame their argument in terms of republication, plaintiff did, and the issue was placed squarely before the court. The arguments were sufficient to alert Supreme Court to the relevant question and sufficiently preserved the legal issue for appellate review.

Our republication liability standard has been consistent for more than one hundred years.

“It is too well settled to be now questioned that one who utters a slander, or prints and publishes a libel, is not responsible for its voluntary and unjustifiable repetition, without his authority or request, by others over whom he has no control and who thereby make themselves liable to the person injured, and that such repetition cannot be considered in law a necessary, natural and probable consequence of the original slander or libel” (Schoepflin v Coffey, 162 NY 12, 17 [1900]).

The rationale behind this rule is that each person who repeats the defamatory statement is responsible for the resulting damages (see Schoepflin, 162 NY at 18). The risk of admitting such evidence is that the jury may “charge against defendant a separate, distinct libel (not pleaded in [the] complaint) by someone else, contrary to the rule that '[t]he original publisher of a libel is not responsible for its subsequent publication by others’ ” (Macy v New York World-Tel. Corp., 2 NY2d 416, 422 [1957]).

Applying this standard, we find that the defendants are not responsible for any harm plaintiff may have suffered from the 2005 Newsday article and that the article should not have been admitted into evidence. Plaintiff failed to demonstrate that Probst had any connection whatsoever with the Newsday article. Notably, the article was published more than three years after Probst wrote the letter to the Board. There is no evidence that Probst contacted anyone at Newsday in order to induce them to print his allegations. Nor is there evidence that anyone at Newsday contacted Probst regarding the story. Finally, there is no indication that Probst had any control over whether or not Newsday published the article. “[A]bsent a showing that [defendant] approved or participated in some other manner in the activities of the third-party republisher” (Karaduman v Newsday, Inc., 51 NY2d 531, 540 [1980]), there is no basis for allowing the jury to consider the article containing the republished statement as a measure of plaintiffs damages attributable to defendants.

Plaintiff asserts that defendants should be liable for the damages caused by the Newsday article because republication was to be reasonably expected. Specifically, plaintiff argues that when allegations of this type of misconduct are made against a public official, it is reasonable as a matter of law to expect that those allegations will be newsworthy and that it would then be a matter for the factfinder as to whether it would be objectively reasonable to expect republication in the media under the facts of a particular case.

It is true that in dicta in Karaduman we left open the possibility that three reporters could have been held legally responsible for the republication of their article in book form “had plaintiff been able to demonstrate that they participated in the original publication with knowledge or a reasonable expectation that republication was likely” (51 NY2d at 541 n 2). This standard also appears in the Restatement (see Restatement [Second] of Torts § 576 [c] [“The publication of a libel or slander is a legal cause of any special harm resulting from its repetition by a third person if, but only if, . . . the repetition was reasonably to be expected”]).

But the Restatement “foreseeability” standard is not nearly as broad as plaintiff or the dissent suggest. Comment d explains that a republication may be foreseeable “[i]f the defamation is repeated by a person to whom it is published” if the originator of the statement “had reason to expect that it would be so repeated.” The obvious example is when a person makes a defamatory statement to a newspaper reporter who, in turn, repeats it in a newspaper article—the fact pattern in Campo v Paar (18 AD2d 364 [1st Dept 1963]), a case we cited in a footnote in Karaduman. The second example in comment d occurs when the originator of a statement “widely disseminated the defamation and thus intimated to those who heard it that he [or she] is not unwilling to have it known to a large number of people.” Neither of these circumstances is present here: Probst never made any statements to Newsday reporters (and News-day apparently did not contact him before publishing the story), nor did Probst “widely disseminate” the allegations concerning plaintiff. Thus, even if we were to adopt the Restatement’s foreseeability standard, it would not lead us to the conclusion urged by plaintiff.

That we did not endorse such a broad standard of foreseeability in Karaduman is evident from our decision the following year in Rinaldi v Viking Penguin (52 NY2d 422 [1981]), where we held that the authors of a book published in hardcover form could not be held liable for republication when the book was reissued as a softcover a year later, even though the author’s rights in the event of such a republication had been addressed in the original publishing contract. We rested our decision—as we do today—on the fact that the authors “had no knowledge of and played no role in” the republication or its implementation (see Rinaldi, 52 NY2d at 435).

Defendants also argue that it was error for the trial court to instruct the jury that Probst’s statement was defamatory per se. Whether particular statements are considered defamatory per se is a question of law (see Golub v Enquirer/Star Group, 89 NY2d 1074, 1076 [1997]). “Generally, a written statement may be defamatory ‘if it tends to expose a person to hatred, contempt or aversion, or to induce an evil or unsavory opinion of him in the minds of a substantial number of the community’ ” (Golub, 89 NY2d at 1076, quoting Mencher v Chesley, 297 NY 94, 100 [1947]). Damages will likewise be presumed for statements that charge a person with committing a serious crime or that would tend to cause injury to a person’s profession or business (see Liberman v Gelstein, 80 NY2d 429, 435 [1992]).

Probst’s statement alleged that plaintiff committed acts constituting a misdemeanor in violation of the General Municipal Law (see General Municipal Law § 801 [1] [“no municipal officer or employee shall have an interest in any contract with the municipality of which he is an officer or employee, when such officer or employee, individually or as a member of a board, has the power or duty to . . . negotiate, prepare, authorize or approve the contract or authorize or approve payment thereunder”]; § 805). The statement could likewise be considered an allegation that would damage plaintiffs professional reputation. As such, there was no error in Supreme Court’s charge to the jury concerning defamation per se.

Defendants’ remaining arguments are without merit.

Accordingly, the order of the Appellate Division should be modified, without costs, by remitting the matter to Supreme Court for a new trial as to damages only and, as so modified, affirmed.

Smith, J. (dissenting).

Under ordinary principles of tort law, Probst’s libel of plaintiff could be found by the jury to be a “legal cause” of the harm plaintiff suffered from the repetition of that libel in the Newsday article. The Restatement says: “The publication of a libel or slander is a legal cause of any special harm resulting from its repetition by a third person if . . . the repetition was reasonably to be expected” (Restatement [Second] of Torts § 576 [c]). We seemed to adopt the Restatement rule in Karaduman v Newsday, Inc. (51 NY2d 531, 541 n 2 [1980]), where we strongly implied that the original publishers of a libel could be “found legally responsible for the republication” if they had “participated in the original publication with ... a reasonable expectation that republication was likely.” But today the majority rejects this rule in favor of one followed in two older cases, Schoepflin v Coffey (162 NY 12 [1900]) and Macy v New York World-Tel. Corp. (2 NY2d 416 [1957]): that one who defames another is not liable for repetition of the defamation without his consent by persons he does not control. The rule the majority adopts was devised for a different world of defamation law, and the justification for it has ceased to exist.

As the majority says, “[t]he rationale behind this rule is that each person who repeats the defamatory statement is responsible for the resulting damages” (majority op at 342, citing Schoepflin, 162 NY at 18). When Schoepflin and Macy were decided, that rationale made sense: then, one whose reputation was damaged by a newspaper story had a reasonable chance of recovering damages from the newspaper, even if the newspaper had innocently repeated an earlier slander or libel. That era ended, at least for public-official plaintiffs like the one in this case, with New York Times Co. v Sullivan (376 US 254, 279-280 [1964]), which held that the First Amendment prohibits a public official from recovering damages for defamation related to his official conduct, unless he proves that the defamatory statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.” Under Times v Sullivan, plaintiff here never had a realistic hope of recovering from Newsday. The damage that plaintiff suffered from the dissemination of a false accusation of corruption to Newsday’s readers must either be paid by defendants or go uncompensated.

No post-Times v Sullivan case in our Court adopts the Schoepflin/Macy rule. Rinaldi v Viking Penguin (52 NY2d 422 [1981]), discussed by the majority (majority op at 344), is not an exception. The issue in Rinaldi was whether a republication was “sufficient to start the . . . Statute of Limitations running anew” (id. at 427). That is not the question we have here. I do not suggest that Newsday’s republication of Probst’s libel was a new tort that would start a new statute of limitations period; I do suggest that the republication was a reasonably foreseeable consequence of the original tort.

The accusation that Probst made against plaintiff is a serious one; a jury has found, on sufficient evidence, that he made it either knowing it to be false or with serious doubt of its truth; and there was sufficient evidence to support a finding that Newsday’s republication of it was reasonably to be expected. I see no good reason why the jury should not have been allowed to award damages based on the republication.

Judges Cipabick, Graffeo, Read, Pigott and Jones concur with Chief Judge Lippman; Judge Smith dissents in a separate opinion.

Order modified, without costs, by remitting the case to Supreme Court, Nassau County, for a new trial as to damages only and, as so modified, affirmed.

      . Plaintiff brought suit against Thomas Probst, individually and doing business as Hendrickson Truck Center, Hendrickson Enterprises, Inc., Hendrickson Transport, Inc., and Hendrickson Truck Parts, Inc.

      . The jury answered the following interrogatory in the affirmative: “Did the plaintiff, Ronald Geraci, prove by clear and convincing evidence that when defendant, Thomas Probst, made the statement the defendant knew the statement was false? or the defendant had serious doubts as to the truth of the statement? or the defendant made the statement with a high degree of awareness that the statement was probably false?”

      . Notably, in a recent case involving the use of electronic media we stated that “[rjepublication . . . occurs upon a separate aggregate publication from the original, on a different occasion, which is not merely ‘a delayed circulation of the original edition’ ” (Firth v State of New York, 98 NY2d 365, 371 [2002] [citation omitted]).


author: Ciparick, J. Smith, J. (dissenting).

text:
    [938 NE2d 931, 912 NYS2d 498]
    In the Matter of Oscar Cintron, Appellant, v Judith A. Calogero, as Commissioner of the Division of Housing and Community Renewal of the State of New York, Respondent.
    Argued September 13, 2010;
    decided October 19, 2010

      POINTS OF COUNSEL

      BAS Legal Advocacy Program, Inc., Bronx (Randolph Petsche of counsel), for appellant.
    I. The existence of a rent reduction order issued pursuant to Rent Stabilization Law (Administrative Code of City of NY) § 26-514 more than four years prior to the filing of a rent overcharge complaint—where the owner had knowledge of the rent reduction order and failed to observe it— creates an exception to the four-year statute of limitations otherwise imposed for the purpose of determining rent overcharge complaints and freezes the rent at the time the order was first issued. (Jenkins v Fieldbridge Assoc., LLC, 65 AD3d 169, 13 NY3d 855; Matter of Condo Units v New York State Div. of Hous. & Community Renewal, 4 AD3d 424; Thornton v Baron, 5 NY3d 175; Matter of 72A Realty Assoc. v State of N.Y. Div. of Hous. & Community Renewal, 298 AD2d 276; Thelma Realty Co. v Harvey, 190 Misc 2d 303; Crimmins v Handler & Co., 249 AD2d 89; Matter of Ador Realty, LLC v Division of Hous. & Community Renewal, 25 AD3d 128; Matter of Zumo Mgt. v State of N.Y. Div. of Hous. & Community Renewal, 183 Misc 2d 107; Matter of Jennings v New York State Off. of Mental Health, 90 NY2d 227.) II. The decision of the Appellate Division is in direct conflict with the decision of the Appellate Division, Second Department, in Jenkins v Fieldbridge Assoc., LLC (65 AD3d 169 [2009]); the Court should adopt the findings oí Jenkins and freeze appellant’s rent from the issuance of the rent reduction order through the statutory four-year period. (Matter of

      Highlawn Assoc. v Division of Hous. & Community Renewal, 309 AD2d 750; Matter of Ador Realty, LLC v Division of Hous. & Community Renewal, 25 AD3d 128; Matter of Condo Units v New York State Div. of Hous. & Community Renewal, 4 AD3d 424; Thelma Realty Co. v Harvey, 190 Misc 2d 303; Matter of Hyde Park Assoc. v Higgins, 191 AD2d 440.)

      Gary R. Connor, General Counsel, New York State Division of Housing and Community Renewal, New York City (Martin B. Schneider of counsel), for respondent.
    The Division of Housing and Community Renewal’s final order, finding the base rent date to be December 11, 1999, and establishing the tenant’s legal base rent as the amount paid on that date and freezing same until February 1, 2004 during a period when rent reduction orders were extant, and directing the owner to refund overcharges collected from the base date to February 1, 2004, inclusive of treble damages, is supported by a rational basis in the record. (Matter of Long v Adirondack Park Agency, 76 NY2d 416; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns ofScarsdale & Mamaroneck, Westchester County, 34 NY2d 222; Thornton v Baron, 5 NY3d 175; Matter of Gilman v New York State Div. of Hous. & Community Renewal, 99 NY2d 144; Zafra v Pilkes, 245 AD2d 218; Matter of Partnership 92 LP v State of N.Y. Div. of Hous. & Community Renewal, 11 NY3d 859; Matter of Hawco v State of N.Y. Div. of Hous. & Community Renewal, 281 AD2d 294; Matter of Silver v Lynch, 283 AD2d 213; Matter of Sessler v New York State Div. of Hous. & Community Renewal, 282 AD2d 262; Matter of Anderson v Lynch, 292 AD2d 603.)

      South Brooklyn Legal Services, Brooklyn (John C. Gray, Edward Josephson and Pavita Krishnaswamy of counsel) and Queens Legal Services, Jamaica (Heejung Kook of counsel), for Pratt Area Community Council and others, amici curiae.
    I. The Appellate Division wrongly held that the four-year statute of limitations precluded the Division of Housing and Community Renewal (DHCR) from giving full effect to the continuing rent reduction order of DHCR. (Matter of ANF Co. v Division of Hous. & Community Renewal, 176 AD2d 518; Matter of Hyde Park Assoc. v Higgins, 149 Misc 2d 682; Crimmins v Handler & Co., 249 AD2d 89; Matter of Condo Units v New York State Div. of Hous. & Community Renewal, 4 AD3d 424; Jenkins v Field-bridge Assoc., LLC, 65 AD3d 169; Thelma Realty Co. v Harvey, 190 Misc 2d 303; Hollis Realty Co. v Glover, 179 Misc 2d 522; Matter of Grossman v Rankin, 43 NY2d 493; Roberts v Tishman

      Speyer Props., L.P., 13 NY3d 270; Thornton v Baron, 5 NY3d 175.) II. The Division of Housing and Community Renewal’s finding that a four-year statute of limitations applied in this instance was erroneous and is not entitled to deference by this Court because the underlying issue is one of pure statutory interpretation best'reserved for this Court to resolve. (Roberts v Tishman Speyer Props., L.P., 13 NY3d 270; Matter of KSLMColumbus Apts., Inc. v New York State Div. of Hous. & Community Renewal, 5 NY3d 303; Matter of Dworman v New York State Div. of Hous. & Community Renewal, 94 NY2d 359; Matter of ATM One v Landaverde, 2 NY3d 472.) III. The rule articulated by the First Department in the instant case, if upheld, will have devastating consequences for tenants who are unaware of the legal rent on their rent-stabilized apartments. (Matter of Rockaway One Co., LLC v Wiggins, 35 AD3d 36; Curry v Battistotti, 5 Misc 3d 1012[A], 2004 NY Slip Op 51355[U], 12 Misc 3d 129[A], 2006 NY Slip Op 51030[U]; 446 Realty Co. v Higbie, 196 Misc 2d 109; Jenkins v Fieldbridge Assoc., LLC, 65 AD3d 169; Matter of Lyndonville Props. Mgt. v Division of Hous. & Community Renewal, 291 AD2d 311; Hollis Realty Co. v Glover, 179 Misc 2d 522; Thelma Realty Co. v Harvey, 190 Misc 2d 303.)

      Legal Aid Society, Brooklyn (Steven Banks, Patrick J. Langhenry, Stephen Myers and Jamila Wideman of counsel), for Met Council, Inc., amicus curiae.
    I. Harmonizing the relevant sections of the Rent Stabilization Law and Rent Stabilization Code requires a holding that rent reduction orders are continuing orders which are not subject to the four-year look-back rule. (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Matter of H.O. Realty Corp. v State of N.Y. Div. of Hous. & Community Renewal, 46 AD3d 103; Matter of Gruber [New York City Dept. of Personnel—Sweeney], 89 NY2d 225; Sanders v Winship, 57 NY2d 391; Matter of ANF Co. v Division of Hous. & Community Renewal, 176 AD2d 518; Matter of Hyde Park Assoc. v Higgins, 149 Misc 2d 682, 191 AD2d 440; Matter of Hyde Park Gardens v State of N.Y., Div. of Hous. & Community Renewal, Off. of Rent Admin., 140 AD2d 351, 73 NY2d 998; Matter of Empress Manor Apts, v New York State Div. of Hous. & Community Renewal, 147 AD2d 642; Thornton v Baron, 5 NY3d 175; Matter of Gilman v New York State Div. of Hous. & Community Renewal, 99 NY2d 144.) II. Since a rent registration that ignores a rent reduction order is a nullity, the existence of a rent overcharge may not be determined by examining the rent registration history. (Thornton v Baron, 5 NY3d 175; People v Rice, 44 AD3d 247, 9 NY3d 992; People v Schonfeld, 74 NY2d 324; Matter of Vlachos v New York City Loft Bd., 118 AD2d 378; Jenkins v Fieldbridge Assoc., LLC, 65 AD3d 169.) III. The Appellate Division’s decision should be reversed because it undermines the rent stabilization system and encourages fraud. (Drucker v Mauro, 30 AD3d 37, 7 NY3d 844; 390 W. End Assoc. v Harel, 298 AD2d 11; Thornton v Baron, 5 NY3d 175; Matter of Grimm v State of N.Y. Div. of Hous. & Community Renewal Off. of Rent Admin., 68 AD3d 29; Matter of ANF Co. v Division of Hous. & Community Renewal, 176 AD2d 518; Matter of Hyde Park Gardens v State of N.Y., Div. of Hous. & Community Renewal, Off. of Rent Admin., 140 AD2d 351, 73 NY2d 998; Matter of Empress Manor Apts, v New York State Div. of Hous. & Community Renewal, 147 AD2d 642.) IV A landlord who has raised the rent notwithstanding a rent reduction order and filed fraudulent rent registrations should be estopped from asserting the four-year look-back rule as a defense. (Thornton v Baron, 5 NY3d 175; Drucker v Mauro, 30 AD3d 37; 390 W. End Assoc. v Harel, 298 AD2d 11; Simcuski v Saeli, 44 NY2d 442.)
   OPINION OF THE COURT

Ciparick, J.

On this appeal, we are asked to interpret the Rent Stabilization Law to ascertain the consequences on a current rent overcharge claim of two rent reduction orders issued prior to, but in effect during, the four-year period preceding the filing of an overcharge claim. We conclude that the Division of Housing and Community Renewal (DHCR) should, in calculating any rent overcharge, honor rent reduction orders that, while issued prior to the four-year limitations period, remained in effect during that period.

I.

In 1986, petitioner Oscar Cintron became a tenant of 2975 Decatur Avenue, apartment 5C, in the Bronx, at an initial stabilized rent of $348.91 per month. The following year, petitioner filed a complaint with DHCR against the building’s then owner, alleging a decrease in services related to, among other things, the apartment’s refrigerator, door lock and fire escape window. As a result of the complaint, DHCR issued an order reducing petitioner’s rent “by the percentage of the most recent guidelines adjustment for the tenant’s lease which commenced before the effective date of th[e] rent reduction [order],” and providing that the owner could not collect any rent increase until a rent restoration order was issued. The rent reduction order did not set a particular level of rent. According to petitioner, the 1987 rent reduction order should have resulted in a reduction of his rent to $326.23 per month.

In 1989, petitioner filed another complaint with DHCR, alleging a roach infestation of the apartment’s stove. DHCR issued another rent reduction order. Despite the 1987 and 1989 rent reduction orders, however, the owner failed to make any repairs and continued to charge petitioner the unreduced rent.

In 1991, when the current owner purchased the building, petitioner allegedly advised him of the rent reduction orders. Although the current owner apparently also failed to make any repairs, petitioner continued to pay the unreduced rent and entered into a series of leases requiring him to pay greater rents.

On December 11, 2003, petitioner filed a complaint alleging that the rent of $579.99 charged in the lease then in effect constituted an overcharge based on the current and prior owners’ failure to comply with the 1987 and 1989 rent reduction orders. A DHCR Rent Administrator determined that the base date to be used was the date four years prior to the filing of the overcharge complaint—December 11, 1999—and established that the legal regulated rent on the base date was $508.99, which was the rent charged by the current owner and paid by petitioner on that date. Although taking notice of the 1987 and 1989 rent reduction orders, the Rent Administrator in establishing the legal stabilized rent calculated the overcharge using the base date of December 11, 1999. The Rent Administrator awarded petitioner a rent refund of $1,008.77, which included interest but did not include treble damages, and prospectively froze the rent at the base date level from December 11, 1999 until February 1, 2004. Effective February 1, 2004, the Rent Administrator removed the 1987 and 1989 rent reduction orders and restored the rent to the full amount of $579.99, which included rent increases.

Petitioner sought administrative review of the Rent Administrator’s order. DHCR granted the petition for administrative review to the extent of modifying the order by (1) reversing the portion of the order that denied treble damages and (2) awarding treble damages beginning two years prior to the filing of the overcharge complaint. DHCR denied the remainder of petitioner’s challenges, concluding that the Rent Administrator properly limited recovery to the four years preceding the overcharge complaint and correctly used the base date rent—$508.99 as of December 11, 1999—rather than the rent established by the 1987 and 1989 rent reduction orders in calculating the overcharge.

Petitioner commenced this CPLR article 78 proceeding seeking to annul DHCR’s order. Supreme Court denied the petition and dismissed the proceeding, concluding that DHCR’s determination was not arbitrary or capricious and had a rational basis.

On petitioner’s appeal, the Appellate Division affirmed, holding:

“The order, finding the base rent date to be December 11, 1999 (four years prior to the filing of the overcharge complaint), establishing the legal base rent as the amount paid on that date, freezing that rent until February 1, 2004, during which time rent reduction orders were extant, and directing the owner to refund overcharges collected from the base rent date inclusive of treble damages, was not arbitrary and capricious, and had a rational basis” (Matter of Cintron v Calogero, 59 AD3d 345, 346 [1st Dept 2009] [citations omitted]).

Petitioner appealed to this Court by permission of the Appellate Division, which certified the following question: “Was the order of this Court, which affirmed the order of the Supreme Court, properly made?” Because the Appellate Division order is final, we need not answer the certified question.

II.

Regardless of the forum in which it is commenced, a rent overcharge claim is subject to a four-year statute of limitations (see Rent Stabilization Law of 1969 [Administrative Code of City of NY] § 26-516 [a] [2] [hereinafter Rent Stabilization Law]; CPLR 213-a). The Rent Regulation Reform Act of 1997 “clarified and reinforced the four-year statute of limitations applicable to rent overcharge claims ... by limiting examination of the rental history of housing accommodations prior to the four-year period preceding the filing of an overcharge complaint” (Thornton v Baron, 5 NY3d 175, 180 [2005], citing Matter of Gilman v New York State Div. of Hous. & Community Renewal, 99 NY2d 144, 149 [2002]; see also Matter of Grimm v State of N.Y. Div. of Hous. & Community Renewal Off. of Rent Admin., 15 NY3d 358 [2010] [decided today]). Notably, the term “rental history” is not defined in the relevant statutes or in DHCR regulations and we need not attempt to define it here. As we have previously explained, the purpose of the four-year limitations or look-back period is to “alleviate the burden on honest landlords to retain rent records indefinitely” (Thornton, 5 NY3d at 181, citing Matter of Gilman, 99 NY2d at 149; see also Jenkins v Fieldbridge Assoc., LLC, 65 AD3d 169, 174 [2d Dept 2009], appeal dismissed 13 NY3d 855 [2009]).

Moreover, Rent Stabilization Law § 26-514, which addresses rent reduction orders, states:

“[A]ny tenant may apply to [DHCR] for a reduction ■ in the rent to the level in effect prior to its most recent adjustment and for an order requiring services to be maintained as provided in this section, and [DHCR] shall so reduce the rent if it is found that the owner has failed to maintain such services. The owner shall also be barred from applying for or collecting any further rent increases. The restoration of such services shall result in the prospective elimination of such sanctions” (emphasis added).

Rent reduction orders thus place a “continuing obligation” upon an owner to reduce rent until the required services are restored or repairs are made (Thelma Realty Co. v Harvey, 190 Misc 2d 303, 305-306 [App Term, 2d Dept 2001]; see also Matter of Condo Units v New York State Div. of Hous. & Community Renewal, 4 AD3d 424, 425 [2d Dept 2004], lv denied 5 NY3d 705 [2005]; Crimmins v Handler & Co., 249 AD2d 89, 91 [1st Dept 1998]). Here, it is alleged that the landlord failed to fulfill his continuing obligation by willfully flouting DHCR rent reduction orders.

The Rent Stabilization Law and Code are unfortunately silent as to the effect that a rent reduction order, issued prior to the four-year limitations period but still in effect during that period, as is the case here, has on a subsequent overcharge complaint based on that order. Petitioner argues that DHCR rent reduction orders must be considered by DHCR in establishing the legal stabilized rent for an apartment for the purposes of an overcharge complaint and that, because the rent reduction orders here remained in effect—and imposed a continuing duty on the landlord to reduce rent—during the relevant four-year period, the four-year look-back rule is no bar to considering those orders for the purposes of calculating the amount by which petitioner was overcharged (see Thornton, 5 NY3d at 180; see also Matter of 508 Realty Assoc., LLC v New York State Div. of Hous. & Community Renewal, 61 AD3d 753, 755-756 [2d Dept 2009]; Jenkins, 65 AD3d at 173). DHCR, on the other hand, argues that its determination is supported by a rational basis and is consistent with the statute as the Legislature intended the four-year limitations/look-back period to be absolute, prohibiting the consideration of earlier rent records for the purpose of calculating a rent overcharge.

In this matter of statutory construction, where deference to an agency’s interpretation is not required (see e.g. Roberts v Tishman Speyer Props., L.P., 13 NY3d 270, 285 [2009]), we find petitioner’s argument more persuasive as it best reconciles and harmonizes the legislative aims of both the four-year limitations/ look-back period as set forth in Rent Stabilization Law § 26-516 (a) (2) and CPLR 213-a and the “continuing obligation” of a landlord to reduce rent and make repairs as per Rent Stabilization Law § 26-514 (see McKinney’s Cons Laws of NY, Book 1, Statutes §§ 95, 96 [in interpreting statutes, the goal is to further the intent, spirit and purpose of a statute, to harmonize all parts of a statute to give effect and meaning to every part]).

Certainly, DHCR can take notice of its own orders and the rent registrations it maintains to ascertain the rent established by a rent reduction order without imposing onerous obligations on landlords. Moreover, refusing to give effect to a rent reduction order’s direction to roll back rent in cases where the order remained in effect during the statutory four-year period would countenance the landlord’s failure to restore required services and thwart the goals of the Legislature in enacting Rent Stabilization Law § 26-514, namely, to “motivate owners of rent-stabilized housing accommodations to provide required services, compensate tenants deprived of those services, and preserve and maintain the housing stock in New York City” (Jenkins, 65 AD3d at 173, citing Matter of Hyde Park Assoc. v Higgins, 191 AD2d 440, 442 [1st Dept 1993]). In short, rent reduction orders impose a continuing obligation on a landlord and, if still in effect during the four-year period, are in fact part of the rental history which DHCR must consider.

We conclude that the purposes of the relevant statutes are best served here if DHCR calculates the amount of rent overcharge by reference to the 1987 and 1989 rent reduction orders, which remained in effect during the four-year limitations period and, accordingly, were part of the rental history that the Rent Stabilization Law permits DHCR to consider.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the case remitted to Supreme Court with directions to remand to respondent DHCR for further proceedings in accordance with this opinion. The certified question should not be answered upon the ground that it is unnecessary.

Smith, J. (dissenting).

The relevant provisions of the Rent Regulation Reform Act of 1997 seem as clear to me as they did when I dissented in Thornton v Baron (5 NY3d 175 [2005]).

“[N]o determination of an overcharge and no award or calculation of an award of the amount of an overcharge may be based upon an overcharge having occurred more than four years before the complaint is filed. . . . This paragraph shall preclude examination of the rental history of the housing accommodation prior to the four-year period preceding the filing of a complaint pursuant to this subdivision” (Rent Stabilization Law [RSL] of 1969 [Administrative Code of City of NY] § 26-516 [a] [2]; see also id. § 26-516 [a] [“Where the amount of rent set forth in the annual rent registration statement filed four years prior to the most recent registration statement is not challenged within four years of its filing, neither such rent nor service of any registration shall be subject to challenge at any time thereafter”]; Rent Stabilization Code [9 NYCRR] § 2526.1 [a] [2]).

In Thornton, this Court, unjustifiably I thought, wrote an exception into the statute, and in this case it writes another one, which I also think unjustified.

I grant that there is some tension between the command of the 1997 Reform Act that rental history going back more than four years may not be considered and the provision of RSL § 26-514 that rent reduction orders based on a failure to provide required services remain in effect until the deficiency in services is cured. There is not such a stark conflict, however, as to justify the majority’s choice to let one statute nullify the other. DHCR has, it seems to me, found a fair solution by ordering that, where the noncompliance goes on for more than four years, the rent is in effect frozen for a rolling four-year period—so that the tenant cannot get the advantage of a rent level more than four years old, but the landlord is never free from the reduction order’s effect. This works no undue hardship on the tenant, who need only file a complaint within four years of being overcharged to avoid any time bar.

It is thus unnecessary to resort to the fiction embraced by the majority that a rent level existing more than four years earlier is transformed by the rent reduction order into a “part of the [more recent] rental history which DHCR must consider” (majority op at 356). I would affirm the order of the Appellate Division.

Chief Judge Lippman and Judges Graffeo, Read, Pigott and Jones concur with Judge Ciparick; Judge Smith dissents and votes to affirm in a separate opinion.

Order reversed, etc.

      . The Appellate Division further held that “DHCR appropriately limited the amount of rent overcharges recoverable to the four years prior to the filing of the overcharge complaint” (59 AD3d at 346). This is not an issue on this appeal as petitioner has abandoned his claim for rent overcharges in excess of four years prior to the filing of his rent overcharge claim with DHCR. Petitioner is merely seeking to have the base rent date set at an earlier time.

      . Rent Stabilization Law § 26-516 (a) (2) states:
      “[A] complaint under this subdivision shall be filed with [DHCR] within four years of the first overcharge alleged and no determination of an overcharge and no award or calculation of an award of the amount of an overcharge may be based upon an overcharge having occurred more than four years before the complaint is filed . . . This paragraph shall preclude examination of the rental history of the housing accommodation prior to the four-year period preceding the filing of a complaint pursuant to this subdivision,”
      and CPLR 213-a states:
      “An action on a residential rent overcharge shall be commenced within four years of the first overcharge alleged and no determination of an overcharge and no award or calculation of an award of the amount of any overcharge may be based upon an overcharge having occurred more than four years before the action is commenced. This section shall preclude examination of the rental history of the housing accommodation prior to the four-year period immediately preceding the commencement of the action.”