author: Pigott, J.

text:
    [878 NE2d 1019, 848 NYS2d 603]
    James J. White, Jr., M.D., Appellant, v Continental Casualty Company, Defendant, and Life Insurance Company of Boston & New York, Respondent.
    Argued October 18, 2007;
    decided November 27, 2007

      POINTS OF COUNSEL

      Bender, Crawford & Bender, LLP, Buffalo (Joanneke K.M. Brentjens of counsel), for appellant.
    I. The Life Insurance Company of Boston & New York’s policy definition of total disability renders the policy illusory. (Allstate Ins. Co. v Zuk, 78 NY2d 41; Slayko v Security Mut. Ins. Co., 285 AD2d 875; Matter of Nationwide Mut. Ins. Co. v Davis, 195 AD2d 561; Cross Props. v Home Indem. Co., 41 Misc 2d 822; Niccoli v Monarch Life Ins. Co., 70 Misc 2d 147, 45 AD2d 737, 36 NY2d 892; Dixon v Pacific Mut. Life Ins. Co., 268 F2d 812, 361 US 948; Blasbalg v Massachusetts Cas. Ins. Co., 962 F Supp 362; Monarch Life Ins. Co. v Brown, 125 AD2d 75; Dawes v First Unum Life Ins. Co., 851 F Supp 118; Primavera v Rose & Kiernan, 248 AD2d 842.) II. The lower court erred in granting Life Insurance Company of Boston & New York’s motion for summary judgment. (Dix v Pines Hotel, 188 AD2d 1007; Rodriguez v Wilson, 176 AD2d 1202; Dal Constr. Corp. v City of New York, 108 AD2d 892; Pontello v County of Onondaga, 94 AD2d 427; Rotuba Extruders v Ceppos, 46 NY2d 223; Dougherty v Kinard, 215 AD2d 521; Blasbalg v Massachusetts Cas. Ins. Co., 962 F Supp 362; Godesky v First Unum Life Ins. Co., 239 AD2d 547; Shapiro v Berkshire Life Ins. Co., 212 F3d 121; Primavera v Rose & Kiernan, 248 AD2d 842.)

      Rupp Baase Pfalzgraf Cunningham & Coppola LLC, Buffalo (James M. Appier III of counsel), for respondent.
    I. The clear and unambiguous terms of the Life Insurance Company of Boston & New York’s policy entitle defendant to summary judgment as a matter of law. (Keith v Houck, 88 AD2d 763; Pepper v Allstate Ins. Co., 20 AD3d 633; Johnson v Travelers Ins. Co., 269 NY 401; Bretton v Mutual of Omaha Ins. Co., 110 AD2d 46.) II. Plaintiff is not “totally disabled” within the meaning of the Life Insurance Company of Boston & New York’s policy. III. The terms of the Life Insurance Company of Boston & New York’s policy are clear and unambiguous. (Michelson v Massachusetts Cas. Ins. Co., 102 AD2d 1003; Jones v St. Paul Fire & Mar. Ins. Co., 295 AD2d 569; Physicians’ Reciprocal Insurers

      v Abraham, 303 AD2d 734; Canfield v Peerless Ins. Co., 262 AD2d 934; Salimbene v Merchants Mut. Ins. Co., 217 AD2d 991; Gates v Prudential Ins. Co. of Am., 240 App Div 444.) IV Plaintiff is bound by the coverage afforded under the Life Insurance Company of Boston & New York’s policy despite his contention that the coverage did not comport with his understanding. (Madhvani v Sheehan, 234 AD2d 652; Noroian v Cohen, 7 AD3d 288; Nicholas J. Masterpol, Inc. v Travelers Ins. Cos., 273 AD2d 817.) V Coverage under the Life Insurance Company of Boston & New York’s policy is not illusory. (Ciesinski v Town of Aurora, 202 AD2d 984; Lawton v Lawton, 239 AD2d 866; Schwartz v State Farm Mut. Auto. Ins. Co., 174 F3d 875; Allstate Ins. Co. v Zuk, 78 NY2d 41; Matter of Nationwide Mut. Ins. Co. v Davis, 195 AD2d 561; Slayko v Security Mut. Ins. Co., 285 AD2d 875; Centennial Life Ins. Co. v Scherrer, 191 AD2d 298; Taterka v Nationwide Mut. Ins. Co., 91 AD2d 568, 59 NY2d 743; Niccoli v Monarch Life Ins. Co., 70 Misc 2d 147, 45 AD2d 737, 36 NY2d 892; Dawes v First Unum Life Ins. Co., 851 F Supp 118.) VI. Public policy does not mandate a finding of coverage. (Slayko v Security Mut. Ins. Co., 98 NY2d 289.)
   OPINION OF THE COURT

Pigott, J.

The principal issue presented in this appeal is whether the definition of “total disability” in a disability income policy is ambiguous and, if not, whether plaintiff satisfies the requirements of that definition. We conclude that the definition is not ambiguous and plaintiff failed to establish his entitlement to benefits under the policy as a matter of law.

In 1992, plaintiff James J. White, Jr., a physician who specialized in orthopedic spinal surgery, purchased a disability income policy from First UNUM Life Insurance Company. In 1996, the policy was transferred to defendant Continental Casualty Company (CNA), and again, in 2001, to defendant Life Insurance Company of Boston & New York (LICOBNY). Prior to the 2001 transfer, the policy provided that plaintiff would be considered totally disabled if he was “unable to perform the substantial and material duties of [his] occupation due to an Injury or Sickness.” After the policy transfer, the definition of total disability was changed by adding a second provision which required that plaintiff not be able to “[perform] the duties of any gainful occupation for which [he is] reasonably fitted by education, training, or experience.” Plaintiff does not dispute that he was notified of the change in the language of the policy.

In December 2001, plaintiff informed defendant LICOBNY (defendant) that he was unable to pursue his occupation as an orthopedic surgeon due to a hip condition and sought disability benefits under the policy. After defendant denied the claim, plaintiff commenced this breach of contract action. Supreme Court granted defendant’s motion for summary judgment dismissing the complaint and the Appellate Division, with two Justices dissenting, affirmed, holding that plaintiff failed, as a matter of law, to meet the policy definition of total disability. Plaintiff appealed to this Court as of right, based on the two-justice dissent on a question of law, arguing that the definition of total disability, particularly the definition’s second provision, is ambiguous and renders coverage illusory. Plaintiff argues that, absent the second provision, he satisfied the definition of total disability as a matter of law. In the alternative, plaintiff contends that a triable question of fact exists on this issue. We conclude that these arguments lack merit and therefore affirm the order of the Appellate Division.

As with any contract, unambiguous provisions of an insurance contract must be given their plain and ordinary meaning (see Teichman v Community Hosp. of W. Suffolk, 87 NY2d 514, 520 [1996]), and the interpretation of such provisions is a question of law for the court (see Bailey v Fish & Neave, 8 NY3d 523, 528 [2007]; Chimart Assoc. v Paul, 66 NY2d 570, 572-573 [1986]). It is well settled that “[a] contract is unambiguous if the language it uses has ‘a definite and precise meaning, unattended by danger of misconception in the purport of the [agreement] itself, and concerning which there is no reasonable basis for a difference of opinion’ ” (Greenfield v Philles Records, 98 NY2d 562, 569 [2002] [brackets in original], quoting Breed v Insurance Co. of N. Am., 46 NY2d 351, 355 [1978], rearg denied 46 NY2d 940 [1979]). “Thus, if the agreement on its face is reasonably susceptible of only one meaning, a court is not free to alter the contract to reflect its personal notions of fairness and equity” (Greenfield, 98 NY2d at 569-570 [citations omitted]). If the terms of a policy are ambiguous, however, any ambiguity must be construed in favor of the insured and against the insurer (see United States Fid. & Guar. Co. v Annunziata, 67 NY2d 229, 232 [1986]).

Here, in order to receive disability income benefits under the policy, plaintiff is required to establish that he is “unable to perform the substantial and material duties” of an orthopedic surgeon and not be “performing the duties of any gainful occupation for which [he is] reasonably fitted by education, training, or experience.” Contrary to plaintiffs assertion, this definition is “reasonably susceptible of only one meaning,” and thus, is clear and unambiguous (Greenfield, 98 NY2d at 570; see Michelson v Massachusetts Cas. Ins. Co., 102 AD2d 1003, 1004 [3d Dept 1984] [holding that similar policy language defining total disability was “clear and unambiguous”]).

In addition, although the question of whether a policyholder’s condition falls within the policy’s definition of total disability is typically one for a jury (see McGrail v Equitable Life Assur. Socy. of U. S., 292 NY 419, 425 [1944]), here, plaintiff failed to present any evidence demonstrating the existence of a triable issue of fact concerning whether he is totally disabled under the policy. Clearly, plaintiff satisfied the first provision of the definition inasmuch as he stopped performing orthopedic surgeries due to medical problems prior to filing a claim under the policy. However, as to the second provision, the evidence in the record demonstrates that plaintiff renders second medical opinions on spinal surgery, performs independent medical examinations and serves as an expert medical witness. Therefore, the courts below correctly determined that, as a matter of law, plaintiff is “performing the duties of [a] gainful occupation for which [he is] reasonably fitted by [his] education, training, or experience,” and thus, he is not totally disabled within the meaning of the policy.

Plaintiffs remaining contentions lack merit.

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

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

Order affirmed, with costs.

       Defendant CNA was granted summary judgment dismissing the complaint against it and is not a party to this appeal.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    [879 NE2d 728, 849 NYS2d 189]
    In the Matter of Sinclair Haberman et al., Appellants, v Zoning Board of Appeals of City of Long Beach et al., Respondents.
    Argued October 16, 2007;
    decided November 19, 2007

      POINTS OF COUNSEL

      Davis Wright Tremain LLP, New York City (Victor A. Kovner and Lacy H. Koonce, III, of counsel), and Duane Morris LLP (Thomas R. Newman of counsel), for appellants.
    I. The Appellate Division erroneously ruled that counsel for a zoning board cannot legally bind the board by entering into an agreement with a developer, ultimately “so ordered” and approved by the Supreme Court, for a reciprocal extension of time in connection with an existing variance. (Collard v Incorporated Vil. of Flower Hill, 52 NY2d 594; Asian Ams. for Equality v Koch, 72 NY2d 121; Matter of Commco, Inc. v Amelkin, 62 NY2d 260; Matter of Jayne Estates v Raynor, 22 NY2d 417; Matter of Tohr Indus. Corp. v Zoning Bd. of Appeals of City of Long Beach, 74 NY2d 575; Matter of Dil-Hill Realty Corp. v Schultz, 53 AD2d 263; Matter of American Red Cross v Board of Zoning Appeals of City of Ithaca, 161 AD2d 878; Matter of New York Life Ins. Co. v Galvin, 35 NY2d 52; Matter of Center Sq. Assn., Inc. v City of Albany Bd. of Zoning Appeals, 19 AD3d 968; Matter of Karmel v Delfino, 293 AD2d 473.) II. The Appellate Division erroneously concluded that a municipal party to a court-ordered settlement stipulation can abandon that stipulation with impunity. (McCoy v Feinman, 99 NY2d 295; Gage v Jay Bee Photographers, 222 AD2d 648; Mitchell v New York Hosp., 61 NY2d 208; Matter of Janet L., 287 AD2d 865; Hallock v State of New York, 64 NY2d 224; Christian v Christian, 42 NY2d 63; Kihl v Pfeffer, 94 NY2d 118.) III. The Appellate Division erroneously concluded that the 1992 extension letter and modification order required formal ratification. (Matter of New York Life Ins. Co. v Galvin, 35 NY2d 52; Matter of Commco, Inc. v Amelkin, 62 NY2d 260; Matter of Dil-Hill Realty Corp. v Schultz, 53 AD2d 263; Matter of Tohr Indus. Corp. v Zoning Bd. of Appeals of City of Long Beach, 74 NY2d 575; Town of Smithtown v Haynes, 278 AD2d 312; Carbone v Town of Bedford, 144 AD2d 420.)

      Corey E. Klein, Corporation Counsel, Long Beach, for Zoning Board of Appeals of City of Long Beach and others, respondents.
    I. The Zoning Board of Appeals of the City of Long Beach has sole and exclusive jurisdiction over an application for a variance. (Matter of Commco, Inc. v Amelkin, 62 NY2d 260; Matter of Real Holding Corp. v Lehigh, 2 NY3d 297; Matter of Emmett v Town of Edmeston, 3 AD3d 816, 2 NY3d 817; Matter of Buckley v Town of Wappinger, 12 AD3d 597; Matter of Jayne Estates v Raynor, 22 NY2d 417; Jaffe v Burns, 64 AD2d 692; Matter of Vergata v Town Bd. of Town of Oyster Bay, 209 AD2d 527, 85 NY2d 802; Carbone v Town of Bedford, 144 AD2d 420; Town of Smithtown v Haynes, 278 AD2d 312; Matter of New York Life Ins. Co. v Galvin, 35 NY2d 52.) II. The Corporation Counsel had no authority to bind the Zoning Board of Appeals of the City of Long Beach. (Hallock v State of New York, 64 NY2d 224; City of New York v Watkins, 757 F Supp 72, 956 F2d 1175; Seif v City of Long Beach, 286 NY 382; City of New York v New York Tel. Co., 108 AD2d 372; Matter of Crennan v Brennan, 265 App Div 1013; Matter of Par Bldrs. v Assessor of Town of Orangetown, 234 AD2d 374; Barry v Town of Glenville, 8 NY2d 1153; Walentas v New York City Dept. of Ports, 167 AD2d 211; B.T. Skating Corp. v County of Nassau, 204 AD2d 586; Town of Oneonta v City of Oneonta, 191 AD2d 891.)

      Davidoff Malito & Hutcher, LLP, Garden City (Michael Zapson of counsel), for Xander Corp., respondent.
    I. Pursuant to CPLR 7804 (f), the builder’s petition was properly dismissed. (Matter of Hop-Wah v Coughlin, 118 AD2d 275, 69 NY2d 791; Matter of 230 Tenants Corp. v Board of Stds. & Appeals of City of N.Y., 101 AD2d 53.) II. The Zoning Board of Appeals of the City of Long Beach may put time limitations in the variance. (Gina Petroleum v Zoning Bd. of Appeals of Town of Wappinger, 127 AD2d 560; Matter of Dil-Hill Realty Corp. v Schultz, 53 AD2d 263; Matter of New York Life Ins. Co. v Murdock, 8 AD2d 191; Matter of Houghwot v Town of Kiantone, 69 AD2d 1011; Matter of New York Life Ins. Co. v Foley, 13 AD2d 768; Matter of Douglaston Civic Assn., Inc. v Board of Stds. & Appeals of City

      of N.Y., 278 App Div 659, 302 NY 920; Matter of Sima v Board of Stds. & Appeals of City of N.Y., 278 App Div 785.) III. The Corporation Counsel cannot modify the conditions of the zoning variance. (Town of Smithtown v Haynes, 278 AD2d 312; Matter of Dayho Motel v Assessor of Town of Orangetown, 229 AD2d 435; Bubeck v Main Urology Assoc., 275 AD2d 909; Walentas v New York City Dept. of Ports, 167 AD2d 211; Matter of Blum v Board of Zoning & Appeals, Town of N. Hempstead, 1 Misc 2d 668; Matter of Commco, Inc. v Amelkin, 62 NY2d 260; Matter of Buckley v Town of Wappinger, 12 AD3d 597; City of New York v Watkins, 757 F Supp 72, 956 F2d 1175; Matter of New York Life Ins. Co. v Murdock, 8 AD2d 191; Carbone v Town of Bedford, 144 AD2d 420.)

      Whiteman Osterman & Hanna LLP, Albany (Howard A. Levine and William S. Nolan of counsel), for New York State Builders Association, Inc., amicus curiae.
    I. The Appellate Division erred in upholding the Zoning Board of Appeals of the City of Long Beach’s (ZBA) legally erroneous and arbitrary determination that the 1992 stipulation extending the time limits in the existing variance required formal ratification by the ZBA after notice and a hearing. (Matter of New York Life Ins. Co. v Galvin, 35 NY2d 52; 420 Tenants Corp. v EBM Long Beach, LLC, 41 AD3d 641; Matter of Halperin v Board of Appeals on Zoning of City of New Rochelle, 24 AD3d 767; Matter of Center Sq. Assn., Inc. v City of Albany Bd. of Zoning Appeals, 19 AD3d 968; Matter of Karmel v Delfino, 293 AD2d 473; Matter of Buckley v Town of Wappinger, 12 AD3d 597; Town of Smithtown v Haynes, 278 AD2d 312; Carbone v Town of Bedford, 144 AD2d 420; Matter of Commco, Inc. v Amelkin, 62 NY2d 260; City of New York v Watkins, 757 F Supp 72, 956 F2d 1175.) II. The Appellate Division erred by applying a deferential standard of judicial review of the Zoning Board of Appeals of the City of Long Beach’s pure errors of law. (Matter of Faith For Today v Murdock, 11 AD2d 718, 9 NY2d 761; Matter of St. Onge v Donovan, 71 NY2d 507; Cornell Univ. v Bagnardi, 68 NY2d 583; Matter of Jayne Estates v Raynor, 22 NY2d 417; Matter of Diocese of Rochester v Planning Bd. of Town of Brighton, 1 NY2d 508; Matter of Clark v Board of Zoning Appeals of Town of Hempstead, 301 NY 86; Matter of Madison-Oneida Bd. of Coop. Educ. Servs. v Mills, 4 NY3d 51; Matter of New York Botanical Garden v Board of Stds. & Appeals of City of N.Y., 91 NY2d 413; Valentin v New York City Police Pension Fund, 16 AD3d 145; Matter of Heimbach v Metropolitan Transp. Auth., 75 NY2d 387.) III. Because no formal ratification hearing was required to extend the time to satisfy the conditions of the variance, the stipulation is binding on the Zoning Board of Appeals of the City of Long Beach. (Matter of New York Life Ins. Co. v Galvin, 35 NY2d 52; Matter of Zaidins v Hashmall, 288 AD2d 316; Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409; Matter of 10 E. Realty, LLC v Incorporated Vil. of Val. Stream, 17 AD3d 472; Festinger v Edrich, 32 AD3d 412; Matter of Martin v C. A. Prods. Co., 8 NY2d 226; Donovan Leisure Newton & Irvine v Zion, 168 AD2d 373; Federal Deposit Ins. Corp. v J & D Einbinder Assoc., 224 AD2d 655; Danciger v Baal Milchamot Realty Corp., 272 AD2d 208; Manhattan Ave. Dev. Corp. v Meit, 224 AD2d 191.)
   OPINION OF THE COURT

Smith, J.

We hold that, where a zoning board of appeals has voted to grant a variance, the board’s lawyer, acting with actual or apparent authority, may agree to extend the time to build the improvements permitted by the variance. A second board meeting and vote are not required.

Facts and Procedural History

Sinclair Haberman sought a variance from the City of Long Beach Zoning Board of Appeals (ZBA) to build a four-tower residential condominium complex. The ZBA granted the variance, but after one of the towers was built a dispute arose about the other three. Haberman brought a lawsuit against the City, the ZBA and the City’s building commissioner, which was settled by a stipulation in 1989.

Paragraph 4 of the stipulation said that Haberman would apply for new variances to permit construction of the remaining three buildings. These variances were to be subject to certain conditions, including time limits in which Haberman must apply for building permits: within five years of the grant of the variance for building 2, 6V2 years for building 3 and seven years for building 4. In paragraph 5 of the stipulation, Haberman agreed to pay $200,000 to the City to fund public improvements for the benefit of his project, including the installation of underground utility lines; and the City agreed to begin construction of the improvements not later than two years after receiving the $200,000.

Haberman did apply for the new variances, and the ZBA granted them on August 4, 1989. Haberman paid the $200,000 to the City in December 1989, so that, under paragraph 5 of the stipulation, the City was required to install the underground utility lines not later than December 1991. That deadline was not met, and the City asked Haberman for an extension of time. Haberman agreed to grant it, on condition that the paragraph 4 time limits, governing his time to apply for building permits, were also extended.

These terms were reflected in a letter dated April 7, 1992 from Haberman to the City’s Corporation Counsel, who represented all the defendants—including the ZBA—in Haber-man’s lawsuit. The letter said, in relevant part:

“The undersigned Plaintiff-Petitioner in the above entitled action does hereby agree to extend the time of The City of Long Beach (‘The City’), to comply with paragraph ‘5’ of the Stipulation of Settlement of the above entitled action, dated March 8, 1989 (‘Stipulation’), without time limitation.
“In consideration for this extension, it is agreed by the parties that the time limitations contained and set forth in paragraph ‘4’ of the Stipulation shall be tolled and shall not run against the Plaintiff-Petitioner until such time as The City has complied with the terms of paragraph ‘5’ of the Stipulation. . . .
“Please indicate all of the defendants’ consent to the foregoing by signing and returning the enclosed copy of this letter.”

The Corporation Counsel signed an acknowledgment that he “consented and agreed to” the April 1992 letter as attorney for all of the defendants, including the ZBA. The letter agreement was then attached to a new stipulation, providing that the 1989 stipulation “be, and hereby is, modified in accordance with the letter dated April 7th, 1992.” The new stipulation was signed by counsel for all parties and “so ordered” by Supreme Court.

For the next decade, it seems, nothing of significance happened. The City did not install the underground utility lines, and Haberman did not apply for a building permit. Finally, in 2002, Haberman’s construction company applied for a permit to begin work on building 2, and in 2003 the City’s Building Department issued the permit. The cooperative corporation that had acquired building 1 back in the 1980s opposed the new construction, and asked the ZBA to revoke the permit; the ZBA did so, relying on Haberman’s failure to meet the schedule contained in the 1989 stipulation. The ZBA rejected the argument that Haberman’s time had been extended by the April 1992 letter agreement, saying that “[s]uch a major change . . . required a ratification by the ZBA after a public hearing.”

Haberman brought this litigation to annul the ZBA’s revocation and reinstate his building permit. Supreme Court annulled the ZBA’s action, but the Appellate Division reversed, holding that the ZBA “had a rational basis for finding that the stipulation purporting to extend the prior variance was unenforceable” (35 AD3d 465, 467 [2006]). We granted leave to appeal, and now reverse the Appellate Division’s order.

Discussion

The only question before us is whether the ZBA is bound by the Corporation Counsel’s agreement, as its attorney, to the April 1992 letter extending Haberman’s time to apply for building permits. Ordinarily, of course, parties to litigation are bound by their lawyers’ agreements on their behalf (see Hallock v State of New York, 64 NY2d 224 [1984]), but the ZBA claims this rule does not apply here, because Haberman’s time could be extended only by a vote of the ZBA itself. We reject the ZBA’s argument.

It is true that, as Haberman concedes, the grant of a variance requires ZBA action (see Matter of Commco, Inc. v Amelkin, 62 NY2d 260 [1984]; Carbone v Town of Bedford, 144 AD2d 420 [2d Dept 1988]). That is, presumably, why the parties’ original stipulation, in 1989, provided for the issuance of new variances by the ZBA. We have held, however, that once a variance has been issued, the same formality is not required to extend the variance’s duration: “It is not required that ... an application [for an extension] be treated as a new application for which public notice and a hearing are mandatory” (Matter of New York Life Ins. Co. v Galvin, 35 NY2d 52, 59 [1974]). The ZBA concedes that, under Galvin, a new notice and hearing were not necessary, but says that an extension should still require a ZBA vote. It cites no authority for this rule, and we see no good reason to adopt it.

The agreement to extend Haberman’s time was entered into in writing, after negotiations between counsel, and was approved by the court. It was a benefit given to Haberman in exchange for a benefit received by the City—an extension of the City’s time to install underground utility lines. It is admitted that the Corporation Counsel was the ZBA’s attorney in the litigation Haberman brought. The ZBA does not claim that, in signing the April 1992 letter agreement and the stipulation adopting it, its lawyer was violating the ZBA’s instructions, or concealing his actions from his client—and clearly no such problem, if it existed, was known to Haberman. In other words, the Corporation Counsel had at least apparent, if not actual, authority to act on the ZBA’s behalf. It would be unfair to hold, many years after the event, that the lawyer’s agreement was a nullity because the parties did not follow a procedure that no statute and no precedent required.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and the matter remitted to the Appellate Division for consideration of issues raised but not determined on the appeal to that court.

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

Order, insofar as appealed from, reversed, etc.


text:
    [879 NE2d 1280, 849 NYS2d 461]
    The People of the State of New York, Respondent, v Temel Greene, Appellant.
    Argued October 18, 2007;
    decided November 20, 2007

      POINTS OF COUNSEL

      Office of the Appellate Defender, New York City (Rosemary Herbert, Richard M. Greenberg and Jonathan Marvinny of counsel), for appellant.
    I. Detective Elliott obtained information about Temel Greene in violation of Mr. Greene’s physician-patient privilege, and where that privilege implicates a constitutionally-protected right, both the information obtained through the initial violation and the fruits of that violation must be suppressed. (People v Figueroa, 173 AD2d 156; People v Petro, 122 AD2d 309; People v Sinski, 88 NY2d 487; Matter of Grand Jury Investigation of Onondaga County, 59 NY2d 130; Matter of Grand Jury Investigation in N.Y. County, 98 NY2d 525; Dillenbeck v Hess, 73 NY2d 278; People v Strawbridge, 299 AD2d 584; People v Patterson, 78 NY2d 711; People v Taylor, 73 NY2d 683; People v Gallina, 66 NY2d 52.) II. The second photo array, the lineup and the identifying witness’s in-court identification of Temel Greene must be suppressed where the second photo array was unduly suggestive, and where it therefore irreparably tainted the lineup and in-court identification. (People v Chipp, 75 NY2d 327; People v Gilbert, 295 AD2d 275; Simmons v United States, 390 US 377; People v Malphurs, 111 AD2d 266; People v Hall, 81 AD2d 644; People v Tindal, 69 AD2d 58.) III. The Appellate Division correctly concluded that the trial court’s Sandoval ruling was erroneous where that ruling permitted inquiry into the locations and dates of Temel Greene’s prior arrests; contrary to the Appellate Division’s ruling, however, that error was not harmless. (People v Sandoval, 34 NY2d 371; People v Coe, 95 AD2d 685; People v Arnold, 298 AD2d 895; People v Moore, 238 AD2d 228; People v Walston, 99 AD2d 847; People v Rivera, 216 AD2d 221; People v Grant, 7 NY3d 421.)

      Robert T. Johnson, District Attorney, Bronx (Peter D. Coddington and Jessica Carmela Darpino of counsel), for respondent.
    I. Appellant’s guilt was proven beyond a reasonable doubt by overwhelming evidence. II. The information obtained from Lincoln Hospital was not privileged and not subject to suppression because the physician-patient privilege is not of constitutional dimension. (Wong Sun v United States, 371 US 471; People v Taylor, 73 NY2d 683; People v Patterson, 78 NY2d 711; Matter of Grand Jury Investigation in N.Y. County, 98 NY2d 525; Dillenbeck v Hess, 73 NY2d 278; Williams v Roosevelt Hosp., 66 NY2d 391; Klein v Prudential Ins. Co. of Am., 221 NY 449; People v Giordano, 274 AD2d 748; Goldin v Mejia, 294 AD2d 231; People v Hedges, 98 AD2d 950.) III. Because the second photo array was not unduly suggestive, it did not taint Tony Coston’s lineup or in-court identification. (People v Jones, 2 NY3d 235; People v Gee, 99 NY2d 158; People v Rodriguez, 64 NY2d 738; People v Gilbert, 295 AD2d 275; People v Dunlap, 9 AD3d 434; People v Quinones, 228 AD2d 796; People v Daniels, 202 AD2d 987; People v Hall, 81 AD2d 644; People v Tindal, 69 AD2d 58; People v Malphurs, 111 AD2d 266.) IV The Appellate Division properly found that any Sandoval error that occurred at trial was harmless. (People v Grant, 7 NY3d 421.)
   OPINION OF THE COURT

Smith, J.

We hold that evidence obtained as a result of a violation of the physician-patient privilege need not be suppressed at a criminal trial.

Facts and Procedural History

Anthony Berrios was shot to death on October 16, 2001. Detective Michael Elliott was assigned to investigate the homicide. Elliott learned from the victim’s aunt that, according to talk on the street, the shooting was the result of a fight on October 13 in which a man had been slashed in the face.

Elliott went to a nearby hospital and asked an administrator “if anyone came in for a slashing to the face on that date.” The administrator gave him defendant’s name and address. With the help of a police computer, Elliott obtained defendant’s arrest record and a photograph of him. A witness to the shooting identified the photograph; the trail thus begun led to more evidence against defendant, and eventually to his conviction for second degree manslaughter.

The main ground for defendant’s appeal is the denial of his motion to suppress all evidence obtained as a result of the hospital’s disclosure of defendant’s name and address to Elliott. Supreme Court held that evidence obtained in violation of the physician-patient privilege need not be suppressed. The Appellate Division affirmed on two alternative grounds: that there was no breach of the privilege, and that even if there was suppression was not required. A Judge of this Court granted leave to appeal, and we now affirm on the second of those two grounds.

Discussion

CPLR 4504 (a) says: “Unless the patient waives the privilege, a person authorized to practice medicine . . . shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity.” We have held that the privilege does not apply to “such ordinary incidents and facts as are plain to the observation of any one without expert or professional knowledge” (Klein v Prudential Ins. Co. of Am., 221 NY 449, 453 [1917]). The People argue that the rule of Klein controls this case, because defendant’s wound was visible to anyone who looked at him. Defendant argues that, while his wound may have been obvious, the cause of it was not; he says that laypeople cannot tell whether a wound is caused by a “slash” or some other kind of injury (cf. Matter of Grand Jury Investigation in N.Y. County, 98 NY2d 525, 531 [2002] [the privilege may turn on “whether particular injuries and their causes would have been obvious to a layperson”]).

We need not decide this issue, because we agree with both courts below that, even if there was a violation of the physician-patient privilege, the suppression of the evidence found as a result is not required. The physician-patient privilege is based on statute, not the State or Federal Constitution (Klein, 221 NY at 453). Our decisions make clear that a violation of a statute does not, without more, justify suppressing the evidence to which that violation leads (People v Patterson, 78 NY2d 711, 716-717 [1991]).

We have made an exception to this rule only when the principal purpose of a statute is to protect a constitutional right (People v Taylor, 73 NY2d 683, 690-691 [1989]; People v Gallina, 66 NY2d 52, 59 [1985]). The statute at issue in Taylor governed the procedure to be followed on an application by police officers for a search warrant; the statute in Gallina governed court-authorized wiretapping. In each case, while a violation of the statute was not necessarily a violation of a constitutional right, the statutes existed to safeguard rights protected by the Fourth Amendment. In those cases, we held that when the statutes were violated, the evidence obtained as a result should be suppressed.

This case is nothing like Taylor or Gallina. There is no constitutional right to privacy in physician-patient communications. The Legislature has created, by statute, several exceptions to the physician-patient privilege (see e.g. Penal Law § 265.25 [doctors must report gunshot wounds and life-threatening knife wounds to the police]; Family Ct Act § 1046 [a] [vii] [physician-patient privilege inapplicable at hearings in child protective proceedings]). It could, if it chose, make another exception for the disclosure in this case.

Indeed, the argument for suppression here is weaker than the argument we rejected in Patterson, for the statute at issue in Patterson, which required return to a criminal defendant of his photograph after charges against him were dismissed, had at least some relation to a constitutionally protected right: the presumption of innocence (see 78 NY2d at 716). The physician-patient privilege, by contrast, does not serve primarily to protect individuals against government conduct; it regulates a private relationship. The primary obligation to comply with CPLR 4504 is the doctor’s—or, in this case, the hospital’s. To suppress evidence resulting from a violation of section 4504 would be to punish the State for a doctor’s or hospital’s misconduct—a punishment unlikely to deter doctors and hospitals, who have little interest in whether criminal prosecutions succeed or not.

Defendant’s other arguments lack merit.

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

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

Order affirmed.


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

text:
    [879 NE2d 1282, 849 NYS2d 463]
    In the Matter of Congregation Yetev Lev D’Satmar, Inc., et al., Appellants, v Jacob (Jeno) (Yaakov) Kahana et al., Respondents. Congregation Yetev Lev D’Satmar, Inc., et al., Appellants, v 26 Adar N.B. Corp. et al., Respondents.
    Argued October 16, 2007;
    decided November 20, 2007

      POINTS OF COUNSEL

      Kirkpatrick & Lockhart Preston Gates Ellis LLP, New York City (Gerald A. Novack and Walter P. Loughlin of counsel), Smith, Buss & Jacobs, LLP, Yonkers (Jeffrey D. Buss of counsel), and Thacher Proffitt & Wood LLP, White Plains (Kevin J. Plunkett of counsel), for appellants.
    I. Respondents’ election is a nullity because it was held in violation of the governing bylaw provisions. (Kuehne & Nagel v Baiden, 36 NY2d 539; Sealey v American Socy. of Hypertension, Inc., 10 Misc 3d 572; Ehrlich v American Moninger Greenhouse Mfg. Corp., 26 NY2d 255; Matter of Venigalla v Alagappan, 307 AD2d 1041; Matter of Sousa v New York State Council Knights of Columbus Found., 10 NY2d 68.) II. There is no First Amendment bar to nullifying respondents’ election. (Watson v Jones, 13 Wall [80 US] 679; Presbyterian Church in U. S. v Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 US 440; Jones v Wolf, 443 US 595; Morris v Scribner, 69 NY2d 418; Park Slope Jewish Ctr. v Congregation B’nai Jacob, 90 NY2d 517; Matter of Kaminsky, 251 App Div 132; Karageorgious v Laoudis, 271 AD2d 653; Matter of Venigalla v Alagappan, 307 AD2d 1041; Sillah v Tanvir, 18 AD3d 223; Trustees of Diocese of Albany v Trinity Episcopal Church of Gloversville, 250 AD2d 282.) III. A holding of nonjusticiability would require the entry of a judgment recognizing the authority of the board elected in the first election. (Matter of Empire State Supreme Lodge of Degree of Honor, 118 App Div 616.)

      Herrick, Feinstein LLP, New York City (Scott E. Mollen and Paul Rubin of counsel), for respondents.
    I. The First Amendment to the United States Constitution requires a civil court to refrain from resolving Congregation Yetev Lev D’Satmar, Inc.’s election controversy. (Serbian Eastern Orthodox Diocese for United States & Canada v Milivojevich, 426 US 696; Kedroff v Saint Nicholas Cathedral of Russian Orthodox Church of North

      America, 344 US 94; Kreshik v Saint Nicholas Cathedral of Russian Orthodox Church of North America, 363 US 190; Presbyterian Church in U. S. v Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 US 440; First Presbyt. Church of Schenectady v United Presbyt. Church in U.S. of Am., 62 NY2d 110; Waller v Howell, 20 Misc 236; Jones v Wolf, 443 US 595; Avitzur v Avitzur, 58 NY2d 108, 464 US 817; Park Slope Jewish Ctr. v Congregation B’nai Jacob, 90 NY2d 517; Matter of George v Holstein-Friesian Assn. of Am., 238 NY 513.) II. The Religious Corporations Law requires the trustees to respect the stated objectives of Congregation Yetev Lev D’Satmar, Inc. and the religious disciplinary rulings of its ecclesiastical leadership. (Kroth v Congregation Chebra Ukadisha Bnai Israel Mikalwarie, 105 Misc 2d 904; Walker Mem. Baptist Church, Inc. v Saunders, 285 NY 462; Serbian Eastern Orthodox Diocese for United States & Canada v Milivojevich, 426 US 696; Waller v Howell, 20 Misc 236; Wall v Mount Calvary Baptist Church, Inc., 188 Misc 350.) III. Appellants are judicially estopped from claiming that this dispute should be decided by a civil court. (Nestor v Britt, 270 AD2d 192; Atlas Drywall Corp. v District Council of N.Y. City & Vicinity of United Bhd. of Carpenters & Joiners of Am., Carpenters Local Union 531, 207 AD2d 762.)
   OPINION OF THE COURT

Pigott, J.

The central issue in this appeal is whether resolution of an election controversy between two rival factions of a religious congregation can be achieved through the application of neutral principles of law without judicial intrusion into matters of religious doctrine. Like the trial court and Appellate Division, we conclude that it cannot.

Congregation Yetev Lev D’Satmar, Inc. is a community of Orthodox Judaism known as Satmar Hasidism located in Brooklyn. The Congregation was founded in 1948 by Grand Rabbi (also referred to as Rebbe) Joel Teitelbaum and formally incorporated in New York. In 1952, bylaws were promulgated setting forth the purpose of the Congregation, the functions of the Grand Rabbi, as well as issues involving membership in the community. The bylaws provided for a board of directors and officers to preside over the Congregation and, among other things, assure compliance with the rules of the Congregation.

In 1974, the Grand Rabbi expanded the Satmar community by establishing a new congregation in Monroe, New York. In 1981, that congregation, named for him, was incorporated in New York as Congregation Yetev Lev D’Satmar of Kiryas Joel, Inc.

In 1979, the Grand Rabbi died and was succeeded by his nephew, Moses Teitelbaum. Moses Teitelbaum, now deceased, appointed his elder son, Aaron Teitelbaum, Chief Rabbi of the Monroe Congregation and his younger son, Zalman Leib Teitelbaum, Chief Rabbi of the Brooklyn Congregation. Some time thereafter, a bitter feud erupted between Rabbi Aaron’s supporters and Rabbi Zalman’s supporters pertaining to who should succeed as Grand Rabbi. As a result, the Brooklyn Congregation split into two rival factions.

Each faction conducted a separate election of the board of directors and officers for the Brooklyn Congregation. The first election, which took place on May 12-13, 2001, resulted in the election of petitioners, with Berl Friedman as president. The second, which took place the same day and is claimed to have been certified by the Grand Rabbi Moses Teitelbaum himself on May 24, 2001, resulted in the election of respondents, with Jacob (Jeno, Jenoe) Kahan as president.

Petitioners brought the instant proceeding pursuant to Not-For-Profit Corporation Law § 618 seeking an order declaring that the respondents’ election is null and void and directing that Congregation property be transferred to Berl Friedman. Petitioners claimed that their election resulted in certain members of the Congregation becoming duly elected officers, including Berl Friedman; that respondents illegally attempted to “remove” these duly elected officers and expel Berl Friedman from membership; and that respondents’ election violated the bylaws and/or the Religious Corporations Law. Respondents challenged the jurisdiction of Supreme Court, arguing that it should refrain from interfering in the internal affairs of the Congregation; and further contended that their election was proper, legal and in accordance with the Congregation’s prior practice and bylaws. Respondents disputed petitioners’ election, arguing it was a sham election for several reasons, including that Berl Friedman had been expelled from the Congregation by the Grand Rabbi.

Supreme Court declined to make a determination as to the validity of respondents’ election, holding that it could not decide the election dispute through the application of neutral principles of law because the resolution of the issues would require it to apply ecclesiastical doctrine in violation of the First Amendment. The Appellate Division, with one Justice dissenting, agreed with Supreme Court that “resolution of the parties’ dispute would necessarily involve impermissible inquiries into religious doctrine and the Congregation’s membership requirements” (31 AD3d 541, 543 [2d Dept 2006]). The Appellate Division subsequently granted leave and certified the following question to us: “Was the decision and order of this court dated July 11, 2006, properly made?” We now affirm.

The First Amendment forbids civil courts from interfering in or determining religious disputes, because there is substantial danger that the state will become entangled in essentially religious controversies or intervene on behalf of groups espousing particular doctrines or beliefs (see Serbian Eastern Orthodox Diocese for United States and Canada v Milivojevich, 426 US 696 [1976]). Civil disputes involving religious parties or institutions may be adjudicated without offending the First Amendment as long as neutral principles of law are the basis for their resolution (see First Presbyt. Church of Schenectady v United Presbyt. Church in U.S. of Am., 62 NY2d 110 [1984]; Park Slope Jewish Ctr. v Congregation B’nai Jacob, 90 NY2d 517, 521 [1997], citing Jones v Wolf, 443 US 595 [1979]). The “neutral principles of law” approach requires the court to apply objective, well-established principles of secular law to the issues (First Presbyt. Church, 62 NY2d at 119-120). In doing so, courts may rely upon internal documents, such as a congregation’s bylaws, but only if those documents do not require interpretation of ecclesiastical doctrine. Thus, judicial involvement is permitted when the case can be “decided solely upon the application of neutral principles of . . . law, without reference to any religious principle” (Avitzur v Avitzur, 58 NY2d 108, 115 [1983]).

Petitioners argue that this case involves nothing more than notice, quorum or other technical challenges to the respondents’ election. At first blush, the arguments raised by the petitioners in their appellate brief to this Court, do not appear to implicate ecclesiastical issues. Indeed, courts have properly adjudicated disputes involving religious elections on neutral principles of law. For example, in Rector, Churchwardens & Vestrymen of Church of Holy Trinity v Melish (3 NY2d 476 [1957]), after determining that the quorum rules of the Religious Corporations Law, by their terms, did not apply to an Episcopalian church’s election of a rector, we held that two meetings held by the church complied with applicable quorum requirements of a church canon. The Appellate Divisions have resolved similar disputes (see Matter of Kaminsky, 251 App Div 132 [4th Dept 1937], affd 277 NY 524 [1938]; Sillah v Tanvir, 18 AD3d 223 [1st Dept 2005], lv denied 5 NY3d 711 [2005]; but see Mays v Burrell, 124 AD2d 714 [2d Dept 1986]). These cases were resolved under neutral principles of law pursuant to the court’s power to adjudicate under the Religious Corporations Law and/or the Not-For-Profit Corporation Law (see e.g. N-PCL 618, 706). In each of those cases, the courts resolved the election dispute by applying those laws as well as the bylaws or rules of the religious organization.

Here, however, as both Supreme Court and the Appellate Division recognized, the dispute between the two factions involves issues beyond mere notice and quorum challenges, such as whether Berl Friedman had been removed or expelled from the Congregation. Respondents claim that Jacob (Jeno, Jenoe) Kahan succeeded Berl Friedman as president and thus Jacob (Jeno, Jenoe) Kahan had the authority to conduct respondents’ election. Specifically, respondents claim that Grand Rabbi Moses Teitelbaum denounced Berl Friedman and another member of his faction for rebelling against the authority of the Grand Rabbi and the Grand Rabbi’s son, resulting in their expulsion from the Congregation. Berl Friedman denies being removed from the Congregation and further argues that an elected corporate officer cannot be removed by a spiritual authority such as the Grand Rabbi, which respondents refute.

It is well settled that membership issues such as those that are at the core of this case are an ecclesiastical matter (Park Slope Jewish Ctr. v Stern, 128 AD2d 847 [2d Dept 1987], appeal dismissed 70 NY2d 746 [1987]; Matter of Kissel v Russian Orthodox Greek Catholic Holy Trinity Church of Yonkers, 103 AD2d 830 [2d Dept 1984]). A decision as to whether or not a member is in good standing is binding on the courts when examining the standards of membership requires intrusion into constitutionally protected ecclesiastical matters. Although courts generally have jurisdiction to determine whether a congregation has adhered to its own bylaws in making determinations as to the membership status of individual congregants, here, the Congregation’s bylaws condition membership on religious criteria, including whether a congregant follows the “ways of the Torah.” Whether Berl Friedman was expelled from membership of the Congregation inevitably calls into question religious issues beyond any membership criteria found in the Congregation’s bylaws (Park Slope Jewish Ctr., 128 AD2d 847 [1987]; Kissel, 103 AD2d 830 [1984]).

Contrary to petitioners’ position, Berl Friedman’s religious standing within the Congregation is essential to resolution of this election dispute. Petitioners ask this Court not only to determine the validity of the respondents’ election but also to recognize that petitioners, including Berl Friedman, are elected officers and the authorized governing body of the Congregation. With such membership issues at the center of this election dispute, matters of an ecclesiastical nature are clearly at issue. These particular issues must be resolved by the members of the Congregation, and cannot be determined by this Court.

Accordingly, the Appellate Division order should be affirmed with costs and the certified question not answered upon the ground that it is unnecessary.

Smith, J. (dissenting).

The majority is of course correct in saying that courts of our state, like other state and federal courts, are forbidden from deciding religious questions. This rule, as applied to disputes over ecclesiastical property, is usually a rule of deference: Civil courts defer to the decisions of religious tribunals, unless the case can be decided on the basis of neutral (i.e., nonreligious) principles. But in cases like this one, there is no religious tribunal to defer to, and the rule becomes one of justiciability; the majority here does not accept the decision of a religious tribunal as binding, but simply refuses to decide the case at all. Such a refusal is a drastic measure, because when a case is nonjusticiable it means the wrong committed, if there is one, cannot be remedied anywhere. Whichever side happens to be the defendant in the case will win.

I believe that courts should hold disputes between religious factions to be nonjusticiable only as a last resort, where it is absolutely clear that no neutral principle can decide the case. I do not think that is true here, and I therefore dissent from the majority’s finding of nonjusticiability and would reach the merits. On the merits, I would reject the claim that Berl Friedman and his allies are the duly elected officers of the Brooklyn Congregation, and would remit the case for Supreme Court to decide whether Jacob (Jeno, Jenoe) Kahan and his allies were validly elected, or whether there must be a new election.

I

The rule that civil courts may not decide ecclesiastical questions has its origin in Watson v Jones (13 Wall [80 US] 679 [1872]), in which the United States Supreme Court decided that the right to use property claimed by contesting factions of a local Presbyterian church must be resolved not by the courts, but by the highest decision-making authority of the Presbyterian Church in the United States. Though the decision was not based on the Constitution, it was based on fundamental principles of religious freedom and state neutrality toward religion:

“In this country the full and free right to entertain any religious belief, to practice any religious principle, and to teach any religious doctrine which does not violate the laws of morality and property, and which does not infringe personal rights, is conceded to all. The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect.” (Id. at 728.)

Watson made clear that its holding applied only to hierarchical organizations like the Presbyterian Church—“large and influential bodies,” each having “a body of constitutional and ecclesiastical law of its own” (id. at 729). The Court said:

“[W]henever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them, in their application to the case before them.” (Id. at 727.)

The Watson Court distinguished the case of a hierarchical church from the case of “a church of a strictly congregational or independent organization, governed solely within itself’ (id. at 724). For congregational churches, Watson did not pronounce a rule of deference, but said: “where there is a schism which leads to a separation into distinct and conflicting bodies, the rights of such bodies to the use of the property must be determined by the ordinary principles which govern voluntary associations” (id. at 725). In applying to congregational churches the rules governing voluntary associations, there could be “no inquiry into the existing religious opinions of those who comprise the legal or regular organization” (id. at 725).

The rule of Watson was recognized in the twentieth century as having a constitutional basis, and was followed in a series of Supreme Court cases, among them Kedroff v Saint Nicholas Cathedral of Russian Orthodox Church of North America (344 US 94 [1952]); Presbyterian Church in U. S. v Mary Elizabeth Blue Hull Memorial Presbyterian Church (393 US 440 [1969]); and Serbian Eastern Orthodox Diocese for United States and Canada v Milivojevich (426 US 696 [1976]). These cases seemed to stand for the proposition that a civil court must always defer to the authoritative decision-making bodies of hierarchical churches, but in Jones v Wolf (443 US 595 [1979]), the Court held that states could decide religious property disputes in civil courts if they did so according to “neutral principles of law” (id. at 602-603). The Court in Jones v Wolf restated the constitutional rule established by several of its earlier cases: “[T]he First Amendment prohibits civil courts from resolving church property disputes on the basis of religious doctrine and practice” (id. at 602).

In First Presbyt. Church of Schenectady v United Presbyt. Church in U.S. of Am. (62 NY2d 110, 121 [1984]), we adopted the “neutral principles” approach, describing it as “preferable to deference.” We also held in First Presbyterian, however, that we were “constitutionally foreclosed” from resolving doctrinal issues, including issues of church government (id. at 124).

All the cases cited so far in this opinion involved hierarchical churches. They established that civil courts may decide church property disputes based on “neutral principles” where they can, but must defer to ecclesiastical authorities when neutral principles will not resolve the case. The problem of how to deal with disputes within congregational religious bodies is harder, and has received less attention. Deference often is not possible, for there is no tribunal of the church hierarchy to defer to. Neutral principles seem the only available option—but what if, as sometimes happens, neutral principles cannot resolve the case? The Supreme Court has said that there are cases in which adjudicating a property dispute “would require the civil court to resolve a religious controversy” (Jones v Wolf, 443 US at 604)— but it said in the same case that civil courts may not do so.

When the dilemma is insoluble, the only remedy is the one the majority adopts here—to dismiss the case as nonjusticiable. This is not the first case in which it has been done (see e.g. Congregation Beth Yitzhok v Briskman, 566 F Supp 555, 557-558 [ED NY 1983]), though I think it is the first in which we have done it, and there is no case in which the United States Supreme Court has endorsed that remedy. It is a remedy that should if possible be avoided.

Nonjusticiability implies that the party having the burden of proof loses; thus it is ordinarily a “defendant wins” rule. It will inevitably produce arbitrary and inconsistent, and sometimes perverse or unjust, results. Here, for example, the Kahan faction is the defendant, and therefore wins, because the status quo is in its favor—it is in de facto control of the Brooklyn Congregation. But if members of the Friedman faction had somehow succeeded in occupying the Congregation’s offices, and the Kahan faction sued to evict them, presumably the majority would say the case is still nonjusticiable and the Friedman faction, being the defendant, would win. Or suppose both factions claimed the corporation’s bank account and the bank, not knowing whose checks to honor, brought an interpleader action. Would the majority say that the interpleader action is nonjusticiable—leaving the bank account frozen indefinitely?

It is to avoid problems like these, I think, that courts try hard to find, and usually succeed in finding, neutral principles to resolve disputes where deference is not an option. In Park Slope Jewish Ctr. v Congregation B’nai Jacob (90 NY2d 517 [1997]), we held that a dispute arising from a schism within a congregation could be resolved by neutral principles, reversing a ruling that it was nonjusticiable. Lower New York courts have removed the management of religious bodies, and ordered new elections under court supervision, without deciding any religious issue (see e.g. St. Matthew Church of Christ, Disciples of Christ v Creech, 196 Misc 2d 843 [Sup Ct 2003]). And in a copyright infringement dispute involving a prayer book, where the defendant argued that the court lacked jurisdiction because the case turned on the validity of a rabbinical court ruling, the Court of Appeals for the Second Circuit concluded that, while defendant’s argument had “some force,” it must be rejected because of the harm that would flow from a holding of nonjusticiability: “we cannot decline jurisdiction on this basis; to do so would permit any party to contend that religious doctrine that it deems authoritative undermines the authority of its adversary’s position” (Merkos L'Inyonei Chinuch, Inc. v Otsar Sifrei Lubavitch, Inc., 312 F3d 94, 100 [2d Cir 2002]).

For similar reasons, I approach this case with a strong reluctance to decline jurisdiction, and I conclude that the case can be decided on neutral principles.

II

Before turning to neutral principles, however, I consider the possibility that deference is an option in this case—that the approach of Watson v Jones and later cases involving hierarchical religious bodies can be applied here. It can be argued—indeed, the Kahan faction seems to argue, and Supreme Court may have found—that the Brooklyn Congregation, however unlike the Catholic or Presbyterian church in its structure, is hierarchical in the relevant sense, because there is a single decision-making body whose authority all adherents have agreed to accept: the Grand Rabbi. The Kahan faction submits a document, which it says was signed by the Grand Rabbi, certifying that the Kahan faction nominees were validly elected. This, the Kahan faction says, ends the matter. I do not think the case can be resolved so easily.

First, as I read the parties’ contentions, the Friedman faction disputes the authenticity of the document and of the Grand Rabbi’s signature on it. But putting that aside, the Friedman faction disputes the Grand Rabbi’s authority to decide the validity of a congregational election; it acknowledges the Grand Rabbi’s supreme authority in spiritual matters, but claims that he has “no secular authority,” and that the validity of the election is a secular question. Central to this argument is article 8 of the bylaws, which speaks of the first Grand Rabbi, Joel Teitelbaum, in terms that the parties agree apply to his successor, Moses Teitelbaum:

“The most revered teacher, Rabbi Yoel Teitelbaum, may he live long and be well, is our local rabbi, may it be for many years to come. Nobody can perform his functions without his consent. He is the only authority in all spiritual matters. No rabbi, ritual slaughterer or teacher can be chosen without his consent. His decision is binding on every member.”

This may mean that all of the Grand Rabbi’s decisions bind every member, or only that they bind every member “in all spiritual matters.” The language seems ambiguous to me, and I do not think the ambiguity can be resolved without deciding a religious question—the scope of a religious leader’s authority over his followers. Indeed, it is one of the ironies of this case that Supreme Court based its finding of nonjusticiability on its interpretation of this bylaw; I think the issue of what the bylaw means is itself nonjusticiable.

Ill

The Friedman faction makes essentially two claims: that its candidates are the validly elected leaders of the Brooklyn Congregation, and that the candidates of the Kahan faction are not. I conclude, applying neutral principles, that we can readily resolve the first of these claims: The Friedman faction has wholly failed to establish that its candidates were validly elected. The question as to whether the election of the Kahan faction’s candidates was valid, I conclude, raises issues of fact that should be resolved by Supreme Court.

A

The basis for the Friedman faction’s claim to control the Brooklyn Congregation is an election held in early May 2001, pursuant to a resolution passed at what the Friedman faction says was a meeting of the Congregation’s board of trustees on January 14, 2001. The Kahan faction says that the Friedman faction’s election was irregular in many ways, and the Friedman faction makes no specific response. Indeed, the Friedman faction does not explain its basis for asserting that the people who met on January 14 were members of the Congregation’s board, and there is considerable reason to doubt the validity of that board meeting. Friedman asserted in an affirmation submitted to Supreme Court that the meeting was attended by “83 board members”—but Religious Corporations Law § 207 provides for a maximum of 72 trustees, and various versions of the Congregation’s bylaws provide for varying numbers, none more than 52.

Without defending the lawfulness of its candidates’ election, the Friedman faction says they must be installed in office

because no timely challenge to that election was brought. This argument fails; that is not the way the Not-For-Profit Corporation Law works.

Section 618 of the Not-For-Profit Corporation Law provides for a proceeding by “any member aggrieved by an election,” but the failure to bring such a proceeding does not mean that any activity called an “election” by its participants becomes binding. Section 618 provides a means of removing from power people who may not have been lawfully elected—not a means of installing claimants who say they have been. On the Friedman faction’s theory, any group of people could hold what they called an “election” for officers of any not-for-profit corporation; wait four months for the statute of limitations to run (see CPLR 217); and, if no section 618 proceeding was brought, march in and take over the corporation. This is an absurd result, and the Friedman faction cites no authority supporting it. No examination of religious doctrine is needed to reject this aspect of the Friedman faction’s case.

B

The Friedman faction’s challenge to the validity of the election on which the Kahan faction relies, an election allegedly authorized at a board meeting held January 18, 2001, presents a harder issue. The Friedman faction says this election is invalid on several grounds. One is that it was called by a board from which Berl Friedman had, allegedly improperly, been excluded. The Kahan faction claims that Friedman was removed by the Grand Rabbi. I have already said that I regard the extent of the Grand Rabbi’s authority as a religious question, and I therefore agree with the majority that, if the Grand Rabbi did in fact remove Friedman, a challenge to the election based on his lack of authority to do so would not be justiciable. The Friedman faction, however, challenges not only the Grand Rabbi’s authority to remove Friedman, but the factual claim that he did so. I agree with Justice Spolzino, dissenting below, that it “requires no inquiry into religious doctrine to ascertain whether the Grand Rebbe said and did what he is purported to have said and done” (31 AD3d 541, 546 [2d Dept 2006]). This issue, at least, can be resolved on neutral principles.

There are other issues that can be so resolved. The Friedman faction’s challenge to the election is not based on Friedman’s exclusion alone. The Friedman faction disputes whether the January 18 board meeting ever occurred, whether it was called on proper notice and whether a quorum was present. It questions whether the resolution calling the election was actually passed. It claims that procedures in the election violated the Religious Corporations Law and the Congregation’s bylaws, specifying alleged flaws relating to proxies, mail-in ballots and write-in votes. It claims that some members were excluded from voting, and some nonmembers permitted to vote.

All these issues, except perhaps the ones relating to membership, can be resolved without examination of any religious issues. The majority points out that some issues relating to membership may be religious, and therefore nonjusticiable. I agree that a civil court may not examine any assertion that a potential voter in the election did or did not follow the “ways of the Torah.” But it does not appear to me from the record that the Friedman faction makes any such assertion. It does raise other issues, including the important one of whether members of the Satmar congregation at Kiryas Joel are also members of the Brooklyn Congregation, a question that should be answerable on neutral principles.

In short, while some nonjusticiable issues may come up in the course of the case, it is not impossible for a civil court to decide the case as a whole, and because it is not impossible I think it should be done. I recognize that, if we were to reach the result I favor, we would be imposing a significant burden on the Kings County Supreme Court, where Justice Barasch and his colleagues have already struggled mightily with this dispute, showing remarkable patience and devotion to duty. This is an enormously difficult case, involving as it does a bitter battle between two factions whose differences are extremely hard for outsiders to understand. It has produced, as Justice Barasch tells us in an epilogue to his opinion, attempts by people claiming allegiance to one faction or the other “to discredit, intimidate and improperly influence” the Supreme Court, with the result “that there are judges who would prefer to decline any assignment involving members of this group of litigants” (5 Misc 3d 1023[A], 2004 NY Slip Op 51515[U], *13, *14). I join Justice Barasch—as, I am sure, do all my colleagues—in saying that this behavior is intolerable, and in expressing the hope that the proper authorities will deal with it.

Despite all this, I would ask Supreme Court to take up this case again, and decide the merits. This would, perhaps, illustrate the rule that no good deed goes unpunished, but I think it would serve a more valuable purpose also. Courts are sometimes most necessary when the parties to a dispute are at their most passionate and irrational. In such cases, the prospect of the parties resolving their differences in court may be unattractive, but the thought of their resolving them elsewhere may be less attractive still. I therefore think that courts should, where they possibly can do so, accept jurisdiction in cases like this, and I dissent from the majority’s decision to decline jurisdiction here.

Chief Judge Kaye and Judges Ciparick, Graffeo and Read concur with Judge Pigott; Judge Smith dissents in a separate opinion; Judge Jones taking no part.

Order affirmed, etc.

      . Respondents contend that Moses Teitelbaum designated his younger son, Rabbi Zalman, to be his successor as Grand Rabbi upon his death.

      . Notably, petitioners’ initial complaints found in their petition and considered by Supreme Court regarding the inadequacies of respondents’ election were different from those now raised to this Court. Specifically, petitioners argued that the proxies and mail-in ballots were wrongly counted, members of the Congregation Kiryas Joel, Monsey and Spring Valley were “disenfranchised” from voting in the election, members were wrongly prohibited from casting write-in votes, and the election was “packed” by new “members” and others unqualified to vote. Petitioners on appeal to this Court attempt to recast the issues, focusing on challenges concerning notice, quorum and resolution requirements found in the Religious Corporations Law in a futile attempt to make this case justiciable.


text:
    [879 NE2d 731, 849 NYS2d 192]
    Congregation Yetev Lev D’Satmar of Kiryas Joel, Inc., et al., Respondents-Appellants, v Congregation Yetev Lev D’Satmar, Inc., by Berl Friedman, President, Appellant-Respondent, and Congregation Yetev Lev D’Satmar, Inc., et al., Respondents, et al., Defendants.
    Argued October 16, 2007;
    decided November 20, 2007

      POINTS OF COUNSEL

      Kirkpatrick & Lockhart Preston Gates Ellis LLP, New York City (Gerald A. Novack, Walter P. Loughlin and Justin H. Roeber of counsel), Smith, Buss & Jacobs, LLP, Yonkers (Jeffrey D. Buss of counsel), and Thacher Proffitt & Wood LLP, White Plains (Kevin J. Plunkett of counsel), for appellant-respondent.
    I. The declaration of Jeno (Jacob, Jenoe) Kahan, Sol Perlstein, Jacob Schoenfeld and Solomon Sander was null and void. II. Berl Friedman was authorized to execute the deed irrespective of his membership status. III. In any event, Berl Friedman was not removed or expelled and therefore was authorized to sign. IV Nunc pro tunc approval should be reinstated. (Church of God of Prospect Plaza v Fourth Church of Christ, Scientist, of Brooklyn, 76 AD2d 712, 54 NY2d 42; Morris v Scribner, 69 NY2d 418.)

      Tarshis, Catania, Liberth, Mahon & Milligram, PLLC, Newburgh (Richard M. Mahon, II, of counsel), for respondents-appellants.
    The transfer was properly approved by Justice Rosenwasser.

      Herrick, Feinstein LLP, New York City (Scott E. Mollen and Paul Rubin of counsel), for Congregation Yetev Lev D’Satmar, Inc. and others, respondents.
    I. The Appellate Division properly voided Justice Rosenwasser’s nunc pro tunc approval of the 2001 deed because plaintiffs failed to satisfy the applicable statutory requirements. (Wilson v Ebenezer Baptist Church, 17 Misc 2d 607; Matter of Margolin v Mount Zion Pentecostal Holy Church, 16 Misc 2d 961; Soho Ctr. for Arts & Educ. v Church of St. Anthony of Padua, 146 AD2d 407; Matter of Barusek [Beth Jacob School of W. Bronx], 1 Misc 2d 950; Associate Presbyt. Congregation of Hebron v Hanna, 113 App Div 12.) II. By respecting First Amendment considerations, the Appellate Division properly reversed the trial court’s findings. (Nunn v Black, 506 F Supp 444, 661 F2d 925; Burgess v Rock Cr. Baptist Church, 734 F Supp 30.) III. Appellants’ defiance of the Appellate Division’s rulings from which they appeal highlights the need for clarity.

      Herzfeld & Rubin, P.C., New York City (David B. Hamm, Herbert Rubin and Linda M. Brown of counsel), for Jenoe (Jacob, Jeno) Kahan, respondent.
    I. This Court should dismiss the appeal, as the order appealed from involved the exercise of the lower court’s discretion. (Wilson v Ebenezer Baptist Church, 17 Misc 2d 607; Matter of Margolin v Mount Zion Pentecostal Holy Church, 16 Misc 2d 961; Rosemont Enters. v Irving, 41 NY2d 829; Amrod v Briarwood Props., 55 NY2d 742; 24 Rock Corp. v Tomasello Bros., 21 NY2d 876.) II. This Court should disregard the brief submitted by purported defendant-appellant Congregation Yetev Lev D’Satmar, Inc., by Berl Friedman, president, for lack of aggrievement under CPLR 5511. (Matter of Schwartz v Morgenthau, 7 NY3d 427; Society of Plastics Indus. v County of Suffolk, 77 NY2d 761; Matter of Times-Union of Capital Newspapers Div. of Hearst Corp. v Harris, 50 NY2d 842; Matter of Wittenberg, 27 NY2d 910.) III. The Appellate Division was correct in invalidating Supreme Court’s nunc pro tunc approval of Berl Friedman’s unauthorized transfer of a one-half interest in the cemetery property to Congregation Yetev Lev D’Satmar of Kiryas Joel, Inc. (Church of God of Prospect Plaza v Fourth Church of Christ, Scientist, of Brooklyn, 76 AD2d 712, 54 NY2d 742; Salesian Socy. v Nutmeg Partners, 271 AD2d 671; Matter of Agudist Council of Greater N.Y. v Imperial Sales Co., 158 AD2d 683; Associate Presbyt. Congregation of Hebron v Hanna, 113 App Div 12; Levovitz v Yeshiva Beth Henoch, 120 AD2d 289; Kroth v Congregation Chebra Ukadisha Bnai Israel Mikalwarie, 105 Misc 2d 904; Matter of Beth Israel of Brownsville, 114 Misc 582; Slater v Gallman, 38 NY2d 1; Flagg v Nichols, 307 NY 96; Maloney v Hearst Hotels Corp., 274 NY 106.) IV This Court has no jurisdiction to consider appellants’ attack upon the validity of defendants’ declaration dated January 18, 2001. V. The Friedman dissidents’ challenge to the authority of the Kahan leadership is nonjusticiable, as it presents ecclesiastical issues which are not the proper subject of judicial review. In any event, the Friedman dissidents’ arguments lack merit.
   OPINION OF THE COURT

Pigott, J.

This action involves a dispute over the ownership of a cemetery located in the Town of Monroe, New York, for members of the Satmar community, a distinct sect of Orthodox Judaism. The cemetery was originally acquired by plaintiff Congregation Yetev Lev D’Satmar of Kiryas Joel, Inc. (Monroe Congregation) in 1981. It contains the grave of the Grand Rabbi Joel Teitelbaum, founder of the Satmar movement. As such, the property holds significant religious import for all Satmar followers. The cemetery was conveyed to defendant Congregation Yetev Lev D’Satmar, Inc. (Brooklyn Congregation) in 1988, and thereafter jointly operated by the two congregations.

Some time thereafter, the Brooklyn Congregation split into two rival factions over matters concerning leadership of the Sat-mar community. The feud resulted in each faction conducting separate elections of the board of directors and officers for the Brooklyn Congregation. On January 14, 2001, Berl Friedman, purporting to act as president of the Brooklyn Congregation, convened a board meeting at which he authorized the transfer of an undivided one-half interest in the cemetery property to the Monroe Congregation. A deed, executed by Berl Friedman on January 19, 2001 and conveying the one-half interest in the cemetery property for nominal consideration, was later recorded in the Orange County Clerk’s Office.

At approximately the same time, Jacob (Jeno, Jenoe) Kahan and other members of the rival faction held a meeting at which they designated themselves the true officers of the Brooklyn Congregation. They sought to restrict the use of the cemetery property by filing a so-called “declaration” with the Orange County Clerk providing that only those designated officers could mortgage, sell or otherwise encumber the property.

In 2005, plaintiffs commenced this action against defendants seeking, among other things, a declaration that the transfer of the one-half interest in the property was lawful under the Religious Corporations Law or, in the alternative, to obtain nunc pro tunc approval of that transfer pursuant to Religious Corporations Law § 12. Defendants answered and asserted counterclaims against plaintiffs alleging, among other things, that Berl Friedman was not authorized to execute the 2001 deed because he had been expelled from the Brooklyn Congregation.

Supreme Court awarded summary judgment to plaintiffs, upholding the validity of the transfer executed by Berl Friedman and vacating the declaration. The Appellate Division reversed, in part, finding that questions of fact existed concerning the conveyance, and that those questions “involve ecclesiastical issues that are beyond the competence of the courts” (31 AD3d 480, 482 [2d Dept 2006]). Upon searching the record, the court voided the conveyance pursuant to the Religious Corporations Law, finding that plaintiffs failed to establish that the transfer promoted the interests of the grantor by furthering a religious or charitable object generally {id. at 483). The Appellate Division subsequently granted leave and certified the following question to us: “Was the decision and order of this court dated July 11, 2006, properly made?” We now affirm.

We conclude that support in the record exists for the Appellate Division’s finding that the transfer was not in the best interests of the Brooklyn Congregation. Thus, plaintiffs were not entitled to retroactive judicial approval of the transfer. A religious corporation may “not sell... its real property without applying for and obtaining leave of the court” (Religious Corporations Law § 12 [1]). When a religious corporation fails to obtain the necessary judicial approval before transferring the real property, the corporation may seek retroactive judicial approval in order to validate the transaction {see Religious Corporations Law § 12 [9]). Where, as here, a religious corporation seeks to “convey the whole or any part of its real property to another religious corporation” for nominal consideration, the corporation must show that “religious or charitable objects generally” would be conserved by the conveyance of the property (Religious Corporations Law § 12 [8]). Here, where the transfer was at least in part plainly designed to advance one side of the factional dispute, the Appellate Division justifiably found that no such showing was made. We need reach no other issue.

Accordingly, the Appellate Division order should be affirmed with costs and the certified question not answered upon the ground that it is unnecessary.

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

Order affirmed, etc.


author: Jones, J.

text:
    [879 NE2d 148, 849 NYS2d 9]
    Donald J. O’Mara III et al., Respondents, v Town of Wappinger, Appellant.
    Argued October 16, 2007;
    decided November 15, 2007

      POINTS OF COUNSEL

      Vergilis, Stenger, Roberts & Davis, LLP, Wappingers Falls (Kenneth M. Stenger of counsel), for appellant.
    I. There is a distinction between land use control imposed by police power and private agreement. (Matter of Friends of Shawangunks v Knowlton, 64 NY2d 387.) II. The 1963 resolution of subdivision approval was an exercise of police power under Town Law § 276. (Asian Am. for Equality v Koch, 129 Misc 2d 67, 128 AD2d 99, 72 NY2d 121; Matter of Kamhi v Planning Bd. of Town of Yorktown, 59 NY2d 385; Matter of Golden v Planning Bd. of Town of Ramapo, 30 NY2d 359; Matter of Brous v Smith, 304 NY 164; Delaware Midland Corp. v Incorporated Vil. of Westhampton Beach, 79 Misc 2d 438, 48 AD2d 681, 39 NY2d 1029.) III. The creation of the buffer areas was a legitimate exercise of police power. (Matter of International Innovative Tech. Group Corp. v Planning Bd. of Town of Woodbury, N.Y., 20 AD3d 531; Matter of Koncelik v Planning Bd. of Town of E. Hampton, 188 AD2d 469.) IV The “open space” notation on the filed map provides an additional level of notice. (Eltman v Harvey, 93 Misc 2d 634.) V The subdivision condition creating parcels B and E as a buffer applies to the land and is enforceable under the provisions of Town Law § 268 irrespective of ownership. (Matter of Weinrib v Weisler, 33 AD2d 923; FGL & L Prop. Corp. v City of Rye, 66 NY2d 111; Matter of Golden v Planning Bd. of Town of Ramapo, 30 NY2d 359; Nehrbas v Incorporated Vil. of Lloyd Harbor, 1 AD2d 1034, 2 NY2d 190; Matter of St. Onge v Donovan, 71 NY2d 507; Matter of Conte v Town of Norfolk Zoning Bd. of Appeals, 261 AD2d 734; Matter of Dexter v Town Bd. of Town of Gates, 36 NY2d 102; Matter of Marx v Planning Bd. of Vil. of

      Mill Neck, 185 AD2d 348; Bringslimark v Town of Clarkstown, 128 AD2d 663; Delaware Midland Corp. v Incorporated Vil. of Westhampton Beach, 79 Misc 2d 438.) VI. The subdivision condition is stated plainly and unambiguously. (Holmes v Planning Bd. of Town of New Castle, 78 AD2d 1.) VII. The Town of Wappinger is not estopped from exercising its police power under Town Law § 268 (2). (Matter of Parkview Assoc. v City of New York, 71 NY2d 274; Town of Putnam Val. v Sacramone, 16 AD3d 669.)

      Bleakley Platt & Schmidt, LLP, White Plains (James W. Glatthaar and Kenneth C. Brown of counsel), for respondents.
    I. The Town of Wappinger’s enforcement of the Planning Board’s open space restriction is void as an ultra vires act because it exceeded its police power by enforcing the restriction without complying with the “open space” provision of General Municipal Law § 247. (Matter of Long v Adirondack Park Agency, 76 NY2d 416; Ryder v City of New York, 32 AD3d 836; Matter of DeTroia v Schweitzer, 87 NY2d 338; Cole v Mandell Food Stores, 93 NY2d 34; Matter of Raritan Dev. Corp. v Silva, 91 NY2d 98; Matter of Dutchess County Dept. of Social Servs. v Day, 96 NY2d 149; Gray v Delpho, 97 Misc 37; Mutual Life Ins. Co. of N.Y. v Dake, 87 NY 257; Yen-Te Hsueh Chen v Geranium Dev. Corp., 243 AD2d 708; Andy Assoc. v Bankers Trust Co., 49 NY2d 13.) II. The open space restriction is not a “zoning regulation” of the Town Board, as the Second Circuit inaccurately referred to it. Thus, the O’Maras are not presumed to have constructive knowledge of the restriction. (Matter of Real Holding Corp. v Lehigh, 2 NY3d 297; Matter of Society of N.Y. Hosp. v Del Vecchio, 70 NY2d 634; North Bay Assoc. v Hope, 116 AD2d 704; Envirogas, Inc. v Town of Westfield, 82 AD2d 117; B & J Invs. Corp. v Town Bd. of Town of Clinton, 56 AD2d 882; Matter of Weisman v Zoning Bd. of Appeals of Vil. of Kensington, 260 AD2d 487; Matter of Marx v Planning Bd. of Vil. of Mill Neck, 185 AD2d 348; Bringslimark v Town of Clarkstown, 128 AD2d 663.) III. The unrecorded open space restriction is not in the O’Maras’ chain of title and, thus, is not enforceable against them under Real Property Law § 291 and General Municipal Law § 247. (Matter of Ioannou v Southold Town Planning Bd., 304 AD2d 578; Witter v Taggart, 78 NY2d 234; Eltman v Harvey, 93 Misc 2d 634; Goldstein v Gold, 66 NY2d 624; Ebling Brewing v Gennaro, 189 App Div 782; Covey v Niagara, Lockport & Ontario Power Co., 286 App Div 341; Pallone v New York Tel. Co., 30 NY2d 865; Webster v Ragona, 7 AD3d 850; Russell v Perrone, 301 AD2d 835.)

      Michael E. Kenneally, Jr., Albany, for Association of Towns of the State of New York, amicus curiae.
    I. A planning board may impose an open space restriction as a condition of approval of a subdivision. (Matter of International Innovative Tech. Group Corp. v Planning Bd. of Town of Woodbury, N.Y., 20 AD3d 531; Matter of Pearson Kent Corp. v Bear, 28 NY2d 396; Matter of Koncelik v Planning Bd. of Town of E. Hampton, 188 AD2d 469.) II. Upon filing with the County Clerk, the contents of a subdivision plat are binding and enforceable as against all purchasers of the lots, blocks, parcels or sites created thereby. (Matter of Koncelik v Planning Bd. of Town of E. Hampton, 188 AD2d 469; Vernon Park Realty, Inc. v City of Mount Vernon, 307 NY 493.) •
   OPINION OF THE COURT

Jones, J.

In 1962 two developers, David Alexander and Fred Lafko, purchased property in the town of Wappinger, Dutchess County, with plans to develop a condominium project to be known as Wildwood Manor. The Planning Board tentatively approved a preliminary layout of the project and conditioned approval, in part, on the creation of a permanent open space on a preliminary plat. At a January 23, 1963 meeting, the Board approved the final plat (1963 Plat), which divided the property into seven parcels, including parcels B and E, which were designated the buffer area where open space would be located. The words “Open Space” were written on parcels B and E of the plat. The Board minutes for the January 23 meeting indicated that the plat was accepted subject to eight conditions, among them that no building permits would be issued for parcels B and E, as indicated on the 1963 Plat. The 1963 Plat and Board minutes were filed with the Town. The 1963 Plat was also filed with the Dutchess County Clerk’s Office. Wildwood Manor was ultimately constructed and continues to be occupied.

Parcels B and E remained undeveloped for nearly 40 years until the circumstances that prompted this litigation arose.* * Plaintiff Absolute Property Management, a corporation owned by brothers Donald and Patrick O’Mara, acquired parcels B and E. On October 18, 2000, Absolute purchased the parcels for $29,500 at an in rem tax sale with the intent to construct 10 single family houses on the property. It took title subject to any existing right-of-way, easement, any and all existing restrictions, conditions and covenants of record. Prior to closing, Patrick O’Mara ordered a title report and obtained title insurance. Attached to the policy was Schedule B. Neither Schedule B nor the title policy made reference to an “Open Space” restriction.

In 2002, the O’Maras, taking steps towards building on the property, retained a licensed land surveyor (Gerald Lynn) who prepared a survey of parcels B and E. Lynn based the survey, in part, on an examination of the 1963 Plat. Lynn observed the "Open Space” notation on parcels B and E, but ignored it and never included the notation on the survey submitted to the Town Building Department. The first house was to be built on parcel B and was to serve as a residence for Donald O’Mara and his family. The Town issued a building permit, a temporary certificate of occupancy and approved both an interim survey for the lot on which the house was to be built and a site plan.

In July 2003, Ronald. Lafko, the son of Fred Lafko (one of the original developers of the land), approached a town councilman to express his concern that the development violated the 1963 Plat. In November 2003, the newly-appointed Town Building Inspector issued a stop work order based on the open space restriction noted on Map 3107. Donald O’Mara protested the issuance of the order and attempted to resolve the matter with the Town. The O’Maras were not aware of the “open space” restrictions on parcels B and E until after the Town issued the order—three years after they purchased the property. The Town permitted Donald O’Mara to complete exterior work but did not vacate the stop work order. On December 2, 2003 an attorney for the Town made a written settlement proposal to the O’Maras’ counsel in which the Town offered to grant a certificate of occupancy for the house provided the rest of parcels B and E were dedicated to the Town. In response, the O’Maras filed an action in the United States District Court for the Southern District of New York.

The O’Maras’ original complaint alleged claims under 42 USC § 1983 and under the Takings Clause of the Federal Constitution, the latter being dismissed on the eve of trial. The complaint was amended to add a claim for a judgment declaring that the O’Maras owned parcels B and E free and clear of the open space restriction. Essentially, the O’Maras argued that the open space restriction had to be recorded under Real Property Law § 291 to be enforceable against them. In further support of that argument, plaintiffs urged that the Town acquired an interest in the property pursuant to General Municipal Law § 247 and upon acquisition of the property by the Town, the recording requirement was triggered. The amended complaint also contained claims for fraud and negligent misrepresentation.

The District Court dismissed the fraud and negligence claims. As to the section 1983 claim, the court held that because the O’Maras had a legitimate claim of entitlement to a certificate of occupancy and the Town’s basis for withholding the certificate was illegal, the Town had violated the O’Maras’ constitutional right to substantive due process, thus entitling them to damages for the loss of use and occupancy of the house. Finally, the court held that the open space restriction was unenforceable against the O’Maras, who were bona fide purchasers for value without notice. The court, citing Real Property Law § 291, determined that the restriction was not properly recorded within Dutchess County. Further, the court, relying on Matter of Ioannou v Southold Town Planning Bd. (304 AD2d 578 [2d Dept 2003]), held that the failure to record any restriction on the use of property precludes enforcement of the restriction.

Upon the Town’s appeal, the United States Court of Appeals for the Second Circuit reversed in part by dismissing the section 1983 claim. Additionally, the court held that “[w]hile . . . the process of approving and filing the 1963 Plat complied with both [Town Law § 276 and Real Property Law § 334], neither section addresses whether a subdivision plat is enforceable against subsequent purchasers” (id. at 699). In light of the foregoing, and given the absence of controlling precedent from this Court, the Second Circuit certified the following question to this Court: “Is an open space restriction imposed by a subdivision plat under New York Town Law § 276 enforceable against a subsequent purchaser, and under what circumstances?” (Id.) Under the circumstances of this case, we answer the certified question in the affirmative. An open space restriction placed on a final plat pursuant to Town Law § 276, when filed in the Office of the County Clerk pursuant to Real Property Law § 334, is enforceable against a subsequent purchaser.

Discussion

Real Property Law § 334, the law applicable to the filing of the 1963 Plat (and applicable today), provides that no real property subdivided into separate lots can be offered for sale to the public without the filing of a map in the Office of the County Clerk or Register of Deeds where the property is located. Additionally, no plat of a subdivision may be recorded (i.e., filed) with the County Clerk or Register until it is approved by a planning board and such approval is endorsed in writing on the plat in the manner designated by the planning board (see Town Law § 278 [now renumbered Town Law § 279 (1)]; § 276 [3]). Thus, the statutory scheme in effect in 1963 provided that (1) no subdivision could be approved except by the planning board, (2) no plat could be filed with the County Clerk unless it had the endorsement of the planning board and (3) the subdivision plat had to be filed in the Office of the County Clerk within 90 days of its approval. Accordingly, no lot subdivided from a larger piece could be sold without planning board approval. By virtue of its filing requirement, this statutory scheme afforded notice to the public.

Plaintiffs argue that the Board cannot enforce the open space restriction on their property unless the restriction is recorded under Real Property Law § 291, which requires that conveyances of real property be recorded. *8 In furtherance of this argument, plaintiffs posit that the Town, in reserving to itself the right to prevent anyone from building anything on these parcels, “acquired” an open space interest pursuant to General Municipal Law § 247 (2) and that this acquisition amounts to a “conveyance” of real property. Plaintiffs submit that because the prior owners (David Alexander and Fred Lafko) had been stripped of all rights to use parcels B and E, except the right to be taxed, the effect was that the property was acquired by the Town through its pervasive and restrictive control of the property. This Court disagrees and finds no evidence that the Town acquired parcels B and E by “purchase, gift, grant, bequest, devise, lease or otherwise” (General Municipal Law § 247 [2]). Further, there is no evidence that there was a “conveyance” within the meaning of Real Property Law § 290 (3). Accordingly, Real Property Law § 291 is inapposite to the case at bar. Moreover, there is no statutory requirement to record a plat in the chain of title.

The system of filing subdivision plats exists throughout New York State. In the instant case, a search of the records filed in the Office of the Dutchess County Clerk would have disclosed the 1963 Plat. When Absolute acquired title at the tax salé, a description of the property was limited to its tax grid number. The tax map only showed two boundaries for the lot conveyed. In order to determine the boundaries of its holdings, Absolute should have searched the County Clerk’s property records until it found the subdivision plat that created its parcel. Had Absolute examined the plat, it would have discovered the open space restriction.

In conclusion, we note that towns are separately bestowed with the authority to regulate land use within their borders (see Town Law § 261). This grant of authority is broad and encompasses a town’s ability to impose reasonable conditions in the course of approving a subdivision (see Town Law § 276; see also Matter of Koncelik v Planning Bd. of Town of E. Hampton, 188 AD2d 469, 471 [2d Dept 1992]). The ability to impose such conditions on the use of land through the zoning process is meaningless without the ability to enforce those conditions, even against a subsequent purchaser.

Accordingly, under the circumstances of this case, the certified question should be answered in the affirmative.

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

Following certification of a question by the United States Court of Appeals for the Second Circuit and acceptance of the question by this Court pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), and after hearing argument by counsel for the parties and consideration of the briefs and the record submitted, certified question answered under the circumstances of this case in the affirmative.

      . Generally, a plat is a map describing a piece of land and its features, such as boundaries, lots, roads, and easements (see Black’s Law Dictionary 1188-1189 [8th ed 2004]). Under Town Law § 276 (4) (b), a “preliminary plat” is
      “a drawing prepared in a manner prescribed by local regulation showing the layout of a proposed subdivision including, but not restricted to, road and lot layout and approximate dimensions, key plan, topography and drainage, all proposed facilities unsized, including preliminary plans and profiles, at suitable scale and in such detail as local regulation may require.”

      . Under Town Law § 276 (4) (d), the “final plat” is
      “a drawing prepared in a manner prescribed by local regulation, that shows a proposed subdivision, containing in such additional detail as shall be provided by local regulation all information required to be shown on a preliminary plat and the modifications, if any, required by the planning board at the time of approval of the preliminary plat if such preliminary plat has been so approved.”
      Further, Town Law § 276 (4) (f) provides as follows:

        “ ‘Final plat approval’ means the signing of a plat in final form by a duly authorized officer of a planning board pursuant to a planning board resolution granting final approval to the plat or after conditions specified in a resolution granting conditional approval of the plat are completed. Such final approval qualifies the plat for recording in the office of the county clerk or register in the county in which such plat is located.”

      . Notwithstanding the Board’s restrictions, at some point, the Wappinger Tax Assessor increased the assessment on the property from $7,500 to $47,500 noting on his records, “No Reason For this very low value. Good Buildable Land.” Thereafter, Fred Lafko’s estate ceased making tax payments on the two parcels.

      . Had Lynn included the notation on the survey, the Building Inspector would have been alerted to the restriction.

      . The Second Circuit in its decision, O’Mara v Town of Wappinger (485 F3d 693 [2d Cir 2007]), held that loannou was inapposite because it addressed the enforceability of “[r]estrictive covenants” and not zoning restrictions “imposed by the Planning Board through its zoning powers” (id. at 697 n 6). Furthermore, the agreement was neither noted on the filed subdivision plat nor recorded in the Office of the County Clerk pursuant to Real Property Law §291.

      . Under Real Property Law § 290 (3), the “term ‘conveyance’ includes every written instrument, by which any estate or interest in real property is created, transferred, mortgaged or assigned, or by which the title to any real property may be affected” (emphasis added).