text:
    Mohammed Kawoya, Appellant, v Pet Pantry Warehouse, Inc., et al., Respondents, et al., Defendant.
    Submitted March 22, 2004;
    decided April 1, 2004
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the Court of Appeals does not have jurisdiction to entertain this appeal from the order of the Appellate Division where the appeal to the Appellate Division was from an order entered on an appeal from another court (see NY Const, art VI, § 3 [b] [7]; CPLR 5601 [a]).


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of the Claim of Vladimir Keselman, Appellant, v New York City Transit Authority, Respondent. Workers’ Compensation Board, Respondent.
    Submitted February 2, 2004;
    decided April 1, 2004
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed the denial of appellant’s application for full Board review, dismissed upon the ground that such portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Local Government Assistance Corporation et al., Appellants-Respondents, v Sales Tax Asset Receivable Corporation et al., Respondents-Appellants.
    Submitted March 29, 2004;
    decided April 1, 2004
   Judge R.S. Smith taking no part.


text:
    In the Matter of Malta Town Centre I, Ltd., Respondent, v Town of Malta Board of Assessment Review, Appellant.
    Submitted February 9, 2004;
    decided April 1, 2004
   Motion by the New York State Board of Real Property Services for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the proposed brief is accepted as filed.


text:
    Mitsuhiro Honzawa et al., Respondents, v Hirokuni Honzawa et al., Appellants, et al., Defendants.
    Submitted March 22, 2004;
    decided April 1, 2004
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that denied appellants’ motion to enlarge the record and affirmed Supreme Court’s order denying appellants’ motion to vacate the judgment, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Stanley Moore, Appellant, v Brion D. Travis, Respondent.
    Submitted January 5, 2004;
    decided April 1, 2004
   Judge Graffeo taking no part.


text:
    In the Matter of Stanley Moore, Appellant, v Brion D. Travis, Respondent.
    Submitted March 22, 2004;
    decided April 1, 2004
   Judge Graffeo taking no part.


text:
    The People of the State of New York, Respondent, v DaShaun Reed, Appellant.
    Submitted March 1, 2004;
    decided April 1, 2004
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies as of right from the order of the Appellate Division entered in this criminal action (see NY Const, art VI, § 3 [b]; CPLR 5601; CPL 450.90).


author: Memorandum.

text:
    [811 NE2d 33, 778 NYS2d 771]
    In the Matter of Maison Scahill, Respondent, v Greece Central School District, Appellant. In the Matter of John M. Starr, Respondent, v Greece Central School District, Appellant.
    Decided April 6, 2004

      APPEARANCES OF COUNSEL

      Harris Beach LLP, Pittsford {Edward A. Trevvett of counsel), for appellant.

      Chamberlain, D’Amanda, Oppenheimer & Greenfield, Rochester (Michael A. Sciortino of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

In each case, the judgment of the Appellate Division, insofar as appealed from, should be reversed, with costs, and the petition dismissed.

The District’s terminations of petitioners, two long-time employees, were based on their misconduct in selling at least 14,000 untaxed cigarettes on school property and using a school vehicle to store the cigarettes. This misconduct, which occurred over several months, involved the misappropriation of work time and a violation of the District’s trust and policy. Thus, the District did not abuse its discretion in terminating petitioners’ employment as the penalty does not shock judicial conscience (see Matter of Kelly v Safir, 96 NY2d 32, 39-40 [2001]; see also Matter of Pell v Board of Educ., 34 NY2d 222, 233 [1974]).

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

In each case: On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), judgment, insofar as appealed from, reversed, etc.


text:
    [811 NE2d 34, 778 NYS2d 772]
    In the Matter of Dale Malone, Claimant, v Bob Bernhardt Paving et al., Appellants. Workers’ Compensation Board, Respondent.
    Decided April 6, 2004

      APPEARANCES OF COUNSEL

      Levene Gouldin & Thompson, LLP, Binghamton {Jason M. Carlton of counsel), for appellants.

      Eliot Spitzer, Attorney General, Albany {Patrick J. Walsh of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs. The Appellate Division properly upheld the Workers’ Compensation Board’s imposition of a penalty under Workers’ Compensation Law § 25 (3) (f) against the carrier for failure to pay the award within 10 days. The penalty award is consistent with the purpose of the statute “in favor of prompt payment of workers’ compensation benefits to injured employees” (Matter of Keser v New York State Elmira Psychiatric Ctr., 92 NY2d 100, 105 [1998]). The carrier’s mistake in addressing the payment to the wrong street name and number is sufficiently distinguishable from the carrier’s one-letter spelling mistake in the street name in Krug’s Glazing Servs. (WCB No. 8951 2610, 1998 WL 707503, 1998 NYWCLR [LRP] LEXIS 286 [Sept. 16, 1998]) to warrant a different result (see Matter of Charles A. Field Delivery Serv. [Roberts], 66 NY2d 516, 517-520 [1985]).

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.


text:
    Cathyann Caporale, Appellant, v Michael C. Mesbah et al., Respondents.
    Submitted February 23, 2004;
    decided April 6, 2004
   Motion for leave to appeal dismissed upon the ground that the judgment sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for reargument denied [see 1 NY3d 590].


text:
    Edward Harris, Appellant, et al., Plaintiff, v City of New York, Respondent.
    Submitted March 1, 2004;
    decided April 6, 2004
   Motion for leave to appeal dismissed upon the ground that appellant, having stipulated to a reduction in damages at the Appellate Division, is not a party aggrieved (see Whitfield v City of New York, 90 NY2d 777, 780 n [leave dismissed]).


text:
    Helen C. Sieger, Appellant, v Union of Orthodox Rabbis of the United States and Canada, Inc., et al., Respondents.
    Submitted February 17, 2004;
    decided April 6, 2004
   Chief Judge Kaye taking no part.


text:
    [813 NE2d 585, 780 NYS2d 505]
    In the Matter of Headriver, LLC, Respondent, v Town Board of the Town of Riverhead, Appellant.
    Argued March 31, 2004;
    decided May 4, 2004

      APPEARANCES OF COUNSEL

      Smith, Finkelstein, Lundberg, Isler & Yakaboski, LLP, River-head (Frank Isler and Phil Siegel of counsel), for appellant.

      Bracken, Margolin & Gouvis, LLP, Islandia (Linda U. Margolin of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Headriver, LLC, is a contract vendee for a parcel of real property located in Riverhead, New York, on which it intends to build and operate a Lowes Home Center. Headriver was required to apply to the Town Board to obtain a special use permit because the property was considered a lumber yard. As required, because the property fronted on a country road, the Board referred the application to the Suffolk County Planning Commission for its recommendation. After reviewing the application, the Commission recommended that the special use permit be denied. In order to override the Commission’s recommendation, General Municipal Law § 239-m requires that a super-majority vote be obtained by the Board.

After a public hearing, the Board voted 3-2 to grant the special use permit. Since the statutory super-majority requirement was not satisfied, however, the permit was denied. Headriver brought a CPLR article 78 proceeding claiming that the Board’s determination was arbitrary and capricious because the record established that Headriver met every criterion of the Town Code. The Town Board moved to dismiss the petition for failure to include the Commission as a necessary party and for failure to state facts sufficient to grant the relief requested. Supreme Court denied the motion. A divided Appellate Division affirmed, concluding that because the Commission’s decision could be overridden by a super-majority vote, the Commission was not a necessary party. The Appellate Division did not reach the merits of the Board’s argument that its actions could not be considered arbitrary and capricious since General Municipal Law § 239-m mandated the denial notwithstanding that a majority of the Board had voted to approve the application. The Appellate Division granted leave to appeal and certified to us the question, “Was the order of this court dated July 21, 2003, properly made?” We answer in the affirmative.

Riverhead Town Code § 108-3E requires that an application for a special use permit be made to the Town Board and that the Board refer the application “to the (Riverhead) Planning Board, which will transmit its recommendations to the Town Board within sixty (60) days of referral.” General Municipal Law § 239-m (2) required the Town Board to refer the proposed action to the Suffolk County Planning Commission and General Municipal Law § 239-m (4) provides that the Commission “shall recommend approval, modification, or disapproval, of the proposed action.” General Municipal Law § 239-m (5) provides:

“If such county planning agency or regional planning council recommends modification or disapproval of a proposed action, the referring body [the local zoning board] shall not act contrary to such recommendation except by a vote of a majority plus one of all members thereof.”

In the case at hand, a super-majority of the Town Board could have voted to override the Planning Commission’s determination and approve the proposed action, but did not do so. As a result, the Town was compelled to disapprove the project, and its action is the final agency action reviewable in an article 78 proceeding (General Municipal Law § 239-m [1] [b]). As the Appellate Division held, the determination of the Planning Commission was merely advisory. The Town Board is thus the proper party in the proceeding. The Town Board’s remaining contentions are without merit.

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

Order affirmed, etc.


text:
    [812 NE2d 1246, 780 NYS2d 298]
    In the Matter of Inlet Homes Corp., Appellant, v Zoning Board of Appeals of Town of Hempstead, Respondent.
    Decided May 4, 2004
    APPEARANCES OF COUNSEL

      Forchelli, Curto, Schwartz, Mineo, Carlino & Cohn, LLP, Mineóla (<Joseph F. Buzzell and James A. Boglioli of counsel), for appellant.

      Joseph J. Ra, Town Attorney, Hempstead (Charles S. Kovit of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed with costs.

Giving due deference to the broad discretion of zoning boards considering applications for area variances (see Ifrah v Utschig, 98 NY2d 304, 308 [2002]), the denial by respondent Zoning Board of Appeals of petitioner’s application for an area variance to build a single-family dwelling upon an illegally nonconforming substandard parcel had a rational basis and was supported by substantial evidence. The record supports the Board’s finding that the character of the neighborhood is overwhelmingly conforming to the zoning requirements and that a grant of the area variance would have an adverse effect on the surrounding community. As the court below further recognized, the alleged difficulty here was self-created in that when purchasing the property, petitioner was aware that the Board had previously denied to the contract vendor an area variance for the same lot and under the same circumstances.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.


text:
    Blue Cross and Blue Shield of New Jersey, Inc., et al., Plaintiffs-Respondents, v Philip Morris USA Incorporated et al., Defendants-Appellants, et al., Defendants.
    Submitted April 12, 2004;
    decided May 4, 2004
   Motion by Eliot Spitzer, Attorney General of the State of New York, for leave to file a brief amicus curiae on consideration of certified question herein granted and the proposed brief is accepted as filed.


text:
    Carvel Corporation, Appellant, v Elizabeth A. Noonan et al., Respondents, et al., Defendants, et al., Special Masters.
    Submitted April 12, 2004;
    decided May 4, 2004
   Chief Judge Kaye taking no part.


text:
    Local Government Assistance Corporation et al., Appellants-Respondents, v Sales Tax Asset Receivable Corporation et al., Respondents-Appellants.
    Submitted April 12, 2004;
    decided May 4, 2004
   Judge R.S. Smith taking no part.


text:
    The People of the State of New York, Respondent, v Donnell Hofler, Appellant.
    Submitted April 12, 2004;
    decided May 4, 2004
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 45 West 45th Street, 7th Floor, New York, NY 10036 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Peter Parris, Appellant.
    Submitted April 26, 2004;
    decided May 4, 2004
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 45 West 45th Street, 7th Floor, New York, NY 10036 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v William Rivera, Appellant.
    Submitted April 26, 2004;
    decided May 4, 2004
   Motion for assignment of counsel granted and Lynn WL. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Franklin Rodriguez, Appellant.
    Submitted April 12, 2004;
    decided May 4, 2004
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Clayton Stultz, Appellant.
    Submitted April 12, 2004;
    decided May 4, 2004
   Motion by New York State Association of Criminal Defense Lawyers et al. for leave to appear amici curiae on the appeal herein denied as untimely.


text:
    The People of the State of New York, Respondent, v John Waver, Also Known as John Weaver, Appellant.
    Submitted April 26, 2004;
    decided May 4, 2004
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    Sarah Wolinsky et al., Appellants, et al., Plaintiff, v Kee Yip Realty Corp., Respondent.
    Submitted April 19, 2004;
    decided May 4, 2004
   Motion by Lower Manhattan Loft Tenants for leave to appear amicus curiae on the appeal herein granted to the extent that the proposed brief is accepted as filed.


text:
    [812 NE2d 1250, 780 NYS2d 301]
    Christopher Colarossi, Appellant, v University of Rochester, Respondent.
    Decided May 6, 2004

      APPEARANCES OF COUNSEL

      Petrone & Petrone, P.C., Rochester (Elizabeth C. Clarke and Janet F. Neumann of counsel), for appellant.

      Ward Norris Heller & Reidy LLP, Rochester (.Harold A. Kurland of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff, an undergraduate student, was shot without provocation by a nonstudent while standing outside a fraternity house located in a residential area of defendant’s campus known as the “fraternity quad.” Plaintiff alleged that inadequate security and lighting were a proximate cause of his injuries. Supreme Court denied defendant’s motion for summary judgment dismissing the complaint, and by a divided Court the Appellate Division reversed and granted defendant summary judgment.

In opposition to defendant’s prima facie showing of entitlement to summary judgment, plaintiff presented no evidence other than “[m]ere conclusions, expressions of hope or unsubstantiated allegations” that the alleged insufficient security and lighting in the fraternity quad were a proximate cause of the shooting (Rodriguez v New York City Hous. Auth., 87 NY2d 887, 888 [1995] [internal quotation marks and citations omitted]), or that the criminal attack was foreseeable or preventable in the normal course of events (see Maheshwari v City of New York, 2 NY3d 288, 294-295 [decided today]). Accordingly, the Appellate Division properly granted defendant summary judgment dismissing the complaint.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.


text:
    [812 NE2d 1250, 780 NYS2d 302]
    In the Matter of Richard Kreisler, Appellant, v New York City Transit Authority, Respondent.
    Decided May 6, 2004

      APPEARANCES OF COUNSEL

      Robert Ligansky, New York City, for appellant.

      Martin B. Schabel, Brooklyn, and Victor M. Levy for respondent.
   OPINION OF THE COURT

Memorandum.

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

An administrative penalty must be upheld unless it “is so disproportionate to the offense . . . as to be shocking to one’s sense of fairness,” thus constituting an abuse of discretion as a matter of law (Matter of Pell v Board of Educ., 34 NY2d 222, 237 [1974] [internal quotation marks omitted]). Under the circumstances of this case, it cannot be concluded, as a matter of law, that the penalty of demotion shocks the judicial conscience. Petitioner’s remaining contentions lack merit.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.


text:
    [812 NE2d 1251, 780 NYS2d 302]
    In the Matter of Victor Rodriguez-Rivera, Respondent, v Raymond Kelly, as Police Commissioner of the City of New York, et al., Appellants.
    Decided May 6, 2004

      APPEARANCES OF COUNSEL

      Michael A. Cardozo, Corporation Counsel, New York City (Stephen J. McGrath of counsel), for appellants.

      Worth, Longworth & London, LLP, New York City (Howard B. Sterinbach of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be reversed, with costs, and the petition dismissed.

We agree with the dissenters below that the majority improperly substituted its credibility determinations for those of the Police Commissioner (Matter of Berenhaus v Ward, 70 NY2d 436, 443-444 [1987]), and that a rational basis exists in the record to support the Police Commissioner’s determination that petitioner failed to render all necessary police services. The Police Commissioner did not abuse his discretion in ordering the forfeiture of 15 days’ vacation time because the penalty does not shock judicial conscience in light of the serious nature of the offense (see Matter of Kelly v Safir, 96 NY2d 32, 39-40 [2001]; see also Matter of Pell v Board of Educ., 34 NY2d 222, 233 [1974]).

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), judgment reversed, etc.


text:
    Carvel Corporation, Appellant, v Elizabeth A. Noonan et al., Respondents, et al., Defendants, et al., Special Masters.
    Submitted May 3, 2004;
    decided May 6, 2004
   Chief Judge Kaye taking no part.


text:
    Chase Manhattan Bank, Formerly Known as Chemical Bank, Successor by Merger to Chase Manhattan Bank, N.A. and Chase Lincoln Bank, a National Banking Association, Respondent, v Joan Harris, Also Known as Joan Harris Rondeau, Defendant and Third-Party Plaintiff-Appellant, et al., Defendants. Merrimack Mutual Fire Insurance Company, Third-Party Defendant-Respondent.
    Submitted February 17, 2004;
    decided May 6, 2004
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that dismissed the appeal from Supreme Court’s order denying reargument, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Hector Chebere, Respondent, v Robert T. Johnson et al., Appellants.
    Submitted March 15, 2004;
    decided May 6, 2004
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and is not an order of the type provided for in CPLR 5602 (a) (2).


text:
    In the Matter of Samuel Davis, Appellant, v Glenn S. Goord, as Commissioner of the New York State Department of Correctional Services, Respondent.
    Submitted April 19, 2004;
    decided May 6, 2004
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that it is untimely (see CPLR 5513 [a]).


text:
    Quintin X. Drakeford, Appellant, v State of New York, Department of Corrections, Respondent.
    Submitted March 22, 2004;
    decided May 6, 2004
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution. Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Ronald Jackson, Appellant, v State of New York, Respondent.
    Submitted March 8, 2004;
    decided May 6, 2004
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    Ashok Kashelkar, Appellant, v Robert G. Carl, as Town Court Justice of the Town of Catskill, et al., Respondents.
    Submitted March 29, 2004;
    decided May 6, 2004
   Motion to dismiss appeal granted and appeal dismissed, with $400 costs and $100 costs of motion, upon the ground that no substantial constitutional question is directly involved. Cross motion for sanctions denied.


text:
    In the Matter of Leo A. Marino, Appellant, v Robert M. Morgenthau, as District Attorney of the County of New York, Respondent.
    Submitted March 8, 2004;
    decided May 6, 2004
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601). Motion for leave to appeal denied. Motion for poor person relief dismissed as academic.


text:
    In the Matter of New York Civil Liberties Union, Appellant, v City of Schenectady, et al., Respondents.
    Submitted May 3, 2004;
    decided May 6, 2004
   Motion by The New York Newspaper Publishers Association, Inc., et al. for leave to appear amici curiae on the appeal herein granted to the extent that the proposed brief is accepted as filed. Nineteen additional copies of the brief may be filed and two copies served within 10 days.


text:
    The People of the State of New York, Respondent, v Randolfo Catu, Appellant.
    Submitted May 3, 2004;
    decided May 6, 2004
   Motion for assignment of counsel granted and Laura Johnson, Esq., The Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Thomas Hanley, Appellant.
    Submitted May 3, 2004;
    decided May 6, 2004
   Motion to waive certain requirements of the Rules of Practice of the Court of Appeals (22 NYCRR part 500) denied. The appeal may, however, be prosecuted upon the original record and 20 copies each of appellant’s Court of Appeals brief and appendix pursuant to section 500.5 (a) (1) of the Rules of Practice of the Court of Appeals (22 NYCRR 500.5 [a] [1]).


text:
    The People of the State of New York, Respondent, v Nicholas Marquez, Appellant.
    Submitted May 3, 2004;
    decided May 6, 2004
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Stuart Bennett Vorpahl, Appellant. Town of Montauk, Inc., Intervenor.
    Submitted March 22, 2004;
    decided May 6, 2004
   Motion to intervene dismissed upon the ground that Robert A. Ficalora is not an attorney authorized to represent Montauk Friends of Olmsted Parks/Montauk Trustee Corporation on behalf of the Incorporated Township of Montauk (CPLR 321 [a]).


text:
    South Road Associates, LLC, Appellant, v International Business Machines Corporation, Respondent.
    Submitted March 8, 2004;
    decided May 6, 2004
   Judge Rosenblatt taking no part.


text:
    Alison L. Weller, Appellant, v James J. Munson, Respondent.
    Submitted March 8, 2004;
    decided May 6, 2004
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Supreme Court’s order denying appellant’s motion to renew, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    [812 NE2d 1256, 780 NYS2d 307]
    In the Matter of Henry R. Bauer.
    Decided May 11, 2004
   OPINION OF THE COURT

On the Court’s own motion, it is determined that Honorable Henry R. Bauer is suspended, with pay, effective immediately from his office of Judge of the Troy City Court, Rensselaer County, pending disposition of his request for review of a determination by the State Commission on Judicial Conduct.

Concur: Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith.


text:
    [812 NE2d 1257, 780 NYS2d 307]
    Enisa Zanki et al., Appellants, v Gerald K. Cahill et al., Defendants, and Cushman & Wakefield, Inc., Defendant and Third-Party Plaintiff-Respondent. California JKC Properties, Inc., Third-Party Defendant-Respondent, et al., Third-Party Defendants.
    Decided May 11, 2004
    APPEARANCES OF COUNSEL

      Robert A. Skoblar, New York City, for appellants.

      Wilson, Bave, Conboy, Cozza & Couzens, P.C., White Plains 0James A. Rogers of counsel), for defendant, third-party plaintiff-respondent and third-party defendant-respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed with costs.

The Appellate Division properly determined that plaintiffs failed to raise a triable issue of fact whether the alleged injuries resulted from a dangerous recurring condition of which defendant Cushman & Wakefield had actual or constructive notice.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.


text:
    [813 NE2d 586, 780 NYS2d 506]
    Maria V. Anglero, Individually and as Administratrix of the Estate of Julian A. Balbuena, Deceased, Appellant, v New York City Board of Education, Respondent.
    Decided May 11, 2004

      APPEARANCES OF COUNSEL

      Profeta & Eisenstein, New York City (Fred R. Profeta, Jr., of counsel), for appellant.

      Michael A. Cardozo, Corporation Counsel, New York City (Grace Goodman and Larry A. Sonnenshein of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, without costs, by denying defendant’s motion for summary judgment and, as so modified, affirmed.

Although the Appellate Division correctly determined that defendant could not have anticipated the first attack on decedent, we conclude that plaintiff raised a triable issue of fact as to whether defendant received notice of that attack when it allegedly occurred in the presence of school employees and on school grounds. In support of her cross motion for summary judgment, plaintiff submitted the affidavit of an eyewitness who alleges that she observed the victim being assaulted on school premises by a group of approximately 10 fellow students, one with a baseball bat. The witness stated that several teachers and a safety officer, who were supervising the dismissal of students, were present at the assault but did nothing to intervene, even after the witness yelled at the safety officer to do something to protect the victim and the victim screamed for help.

In light of these allegations by an eyewitness, a jury may find that the safety officer or the teachers heard the call for help by the witness but stood by and did nothing to stop the first assault on decedent and that their intervention might have averted the second assault, which occurred off the school grounds a short time later. Plaintiff’s submission therefore raises a question of fact sufficient to withstand summary judgment. As such, the motion and cross motion for summary judgment should be denied.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order modified, etc.


text:
    In the Matter of the Arbitration between Ayco Company, L.P., et al., Respondents, and Kirk A. Walton, Appellant.
    Submitted March 1, 2004;
    decided May 11, 2004
   Judge Read taking no part.


text:
    In the Matter of Dawn N., a Child Alleged to be Permanently Neglected. St. Lawrence County Department of Social Services, Respondent; Robert N., Appellant. (And Three Other Related Proceedings.)
    Submitted March 22, 2004;
    decided May 11, 2004
   Judge Read taking no part.


text:
    The People of the State of New York, Appellant, v Angel Mateo, Respondent.
    Submitted April 19, 2004;
    decided May 11, 2004
   Judge Read taking no part.


text:
    Quantum Corporate Funding, Ltd., Respondent, v Westway Industries, Inc., Defendant, and United States Fidelity and Guaranty Company, Appellant.
    Submitted March 22, 2004;
    decided May 11, 2004
   Judge Read taking no part.


text:
    U.S. Underwriters Insurance Company, RespondentAppellant, v City Club Hotel, LLC, et al., Appellants-Respondents, et al., Respondents.
    Submitted February 2, 2004;
    decided May 11, 2004
   Concur: Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith.


text:
    [814 NE2d 409, 781 NYS2d 239]
    In the Matter of Korean Joong Bu Presbyterian Church of New York, Appellant, v Incorporated Village of Old Westbury et al., Respondents.
    Decided May 13, 2004

      APPEARANCES OF COUNSEL

      Meyer, Suozzi, English & Klein, P.C., Mineóla (A. Thomas Levin of counsel), for appellant.

      Farrell Fritz, PC., Uniondale (John M. Armentano of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the matter remitted for further proceedings in accordance with this memorandum.

Here, the courts below and the board of assessors erred as a matter of law in concluding that petitioner church was not entitled to a tax exemption pursuant to RPTL 420-a simply because the church’s proposed use of the property was unauthorized due to its lack of a special use permit (see Matter of Legion of Christ v Town of Mount Pleasant, 1 NY3d 406 [2004]). Because the board of assessors did not examine whether the development of the property was “in good faith contemplated” by the church, we remit for that purpose.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, with costs, and matter remitted to Supreme Court, Nassau County, with directions to remand to respondent Board of Assessors of the Incorporated Village of Old Westbury for further proceedings in accordance with the memorandum herein.


text:
    [814 NE2d 425, 781 NYS2d 255]
    Star City Sportswear, Inc., Appellant, v Yasuda Fire & Marine Insurance Company of America, Respondent.
    Decided May 13, 2004

      APPEARANCES OF COUNSEL

      Weg & Myers, P.C., New York City (Joshua L. Mallín of counsel), for appellant.

      Maloof Browne & Eagan LLC, Rye (Thomas M. Eagan of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs. We agree with the Appellate Division majority that the contract’s warranty clause clearly requires that each escort contain a minimum of two guards. Plaintiffs proof was insufficient to raise a triable issue of fact as to whether it fulfilled that requirement (see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562-563 [1980]). Defendant, on the other hand, offered sufficient proof establishing plaintiffs material breach of the warranty clause as a matter of law. Accordingly, defendant’s motion for summary judgment was properly granted.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.


text:
    Rhonda Covington, Appellant, v Carlton Walker, Respondent.
    Submitted April 5, 2004;
    decided May 13, 2004
   Motion for assignment of counsel granted and Alan J. Pierce, Esq., care of Hancock & Estabrook, LLB 1500 MONY Tower I, PO. Box 4976, Syracuse, NY 13221-4976 is assigned without fee to represent respondent on the appeal herein. Counsel may, however, apply for reimbursement of necessary disbursements incurred in connection with the assignment.


text:
    George Heath, Appellant, v John S. Wojtowicz et al., Respondents.
    Submitted April 19, 2004;
    decided May 13, 2004
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain the motion (see NY Const, art VI, § [3] [b]; CPLR 5602).


text:
    In the Matter of Jonathan B., a Child Alleged to be Permanently Neglected. Catholic Home Bureau for Dependent Children, Respondent; Lilliana B., Appellant.
    Submitted April 5, 2004;
    decided May 13, 2004
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for a stay dismissed as academic. Motion for poor person relief dismissed as academic.


text:
    Brian Lustenring et al., Appellants, v 98-100 Realty, LLC, et al., Defendants and Third-Party Plaintiffs-Respondents, et al., Defendants. Rector Street Parking, Inc., et al., Third-Party Defendants-Respondents. (And Another Title.)
    Submitted March 22, 2004;
    decided May 13, 2004
   Motion, insofar as it seeks leave to appeal as against third-party defendants Rector Street Parking, Inc. and the City of New York, dismissed upon the ground that, as to these third-party defendants, appellants are not parties aggrieved (CPLR 5511); motion, insofar as it seeks leave to appeal as against defendant fourth third-party plaintiff 98-100 Realty, LLC, dismissed upon the ground that as to this party the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    The People of the State of New York, Respondent, v Michael Henriquez, Appellant.
    Submitted April 5, 2004;
    decided May 13, 2004
   Motion for leave to file a supplemental pro se brief granted.


text:
    Ada Rodriguez, Appellant, v Trustees of Columbia University in the City of New York et al., Respondents.
    Submitted March 8, 2004;
    decided May 13, 2004
   Motion, insofar as it seeks leave to appeal from that portion of the February 6, 2003 Appellate Division order that dismissed the appeal from Supreme Court’s order dismissing the complaint, denied; motion for leave to appeal otherwise dismissed upon the ground that the remaining portion of the February 6, 2003 Appellate Division order as well as the January 6, 2004 Appellate Division order sought to be appealed from do not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Ada Rodriguez, Appellant, v Trustees of Columbia University in the City of New York et al., Respondents.
    Submitted March 29, 2004;
    decided May 13, 2004
   Motion, insofar as it seeks disqualification of Chief Judge Kaye and Judge R.S. Smith dismissed upon the ground that the Court of Appeals has no authority to entertain the motion made on nonstatutory grounds. The application seeking recusal is referred to the Chief Judge and to Judge R.S. Smith for their individual consideration and determination. Chief Judge Kaye and Judge R.S. Smith each respectively denies the referred motion for recusal. Motion for a stay dismissed as academic.


text:
    Ada Rodriguez, Appellant, v Trustees of Columbia University in the City of New York et al., Respondents.
    Submitted April 12, 2004;
    decided May 13, 2004
   Motion for the imposition of sanctions denied.


text:
    In the Matter of Paul Smith et al., Appellants, v Town of Mendon et al., Respondents.
    Submitted April 5, 2004;
    decided May 13, 2004
   Motion by Pacific Legal Foundation for leave to file a brief amicus curiae on the appeal herein granted to the extent that the proposed brief is accepted as filed.


text:
    [814 NE2d 429, 781 NYS2d 259]
    Signature Realty, Inc., Appellant, v Tim Tallman, Doing Business as Tallman’s Tire and Auto Service, Respondent.
    Argued April 28, 2004;
    decided June 3, 2004
    APPEARANCES OF COUNSEL

      Law Office of Richard L. Wolfe, Utica (Richard L. Wolfe of counsel), for appellant.

      Kowalczyk, Tolies & Deery, LLP, Utica {Robert K. Hilton, III, of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and the case remitted to Supreme Court for further proceedings in accordance with this memorandum.

As we recently stated in R/S Assoc. v New York Job Dev. Auth. (98 NY2d 29, 32 [2002]), “when parties set down their agreement in a clear, complete document, their writing should as a rule be enforced according to its terms” (see also Reiss v Financial Performance Corp., 97 NY2d 195, 198 [2001], quoting W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]). Nothing in the parties’ agreement limits the commission to the initial lease period. On the contrary, an option to renew a lease for three five-year periods, as provided for in the subject lease, would fall within the broad category of “a lease, rental arrangement or other occupancy,” unambiguously requiring payment of 10% of the rent over the period of occupancy.

Given that plaintiff did not cross-move for summary judgment, this Court is not empowered to grant it summary relief (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110-111 [1984]).

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

Order, insofar as appealed from, reversed, etc.


text:
    [815 NE2d 657, 782 NYS2d 50]
    Amnon Goldstein, Respondent, v AccuScan, Inc., et al., Appellants.
    Argued April 28, 2004;
    decided June 3, 2004

      APPEARANCES OF COUNSEL

      Hofheimer Gartlir & Gross, LLP, New York City (David L. Birch of counsel), for appellants.

      Muldoon, Horgan & Loughman, LLP, New Rochelle (Edward D. Loughman, III, of counsel) for respondent.
   OPINION OF THE COURT

Memorandum.

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

“[W]hen parties set down their agreement in a clear, complete document, their writing should as a rule be enforced according to its terms” (Signature Realty, Inc. v Tallman (2 NY3d 810 [decided today], quoting R/S Assoc, v New York Job Dev. Auth., 98 NY2d 29, 32 [2002]). The parties’ agreement states that AccuScan, Inc. shall pay its consultant, Amnon Goldstein, “10% of all amounts received” by AccuScan in excess of $4 million in settlements obtained or license fees awarded regarding certain patents. AccuScan argues that “all amounts received,” in fact, means all amounts received net of attorneys’ fees. As the Appellate Division correctly observed, however, the contract’s clear language does not admit of this qualification (307 AD2d 913, 914 [2d Dept 2003]). Finally, the existence of an attorney’s charging lien does not alter AccuScan’s contractual obligation to Goldstein.

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

Order affirmed, with costs, in a memorandum.


text:
    Carvel Corporation, Appellant, v Elizabeth A. Noonan et al., Respondents, et al., Defendants, et al., Special Masters.
    Submitted June 1, 2004;
    decided June 3, 2004
   Chief Judge Kaye taking no part.


text:
    In the Matter of Madison-Oneida Board of Cooperative Educational Services, Appellant, v Richard P. Mills, as Commissioner of Education of the State of New York, et al., Respondents.
    Submitted May 17, 2004;
    decided June 3, 2004
   Motion by New York State School Boards Association, Inc. for leave to file a brief amicus curiae on the appeal herein granted. Twenty copies of a brief may be filed and three copies served within 30 days.


text:
    Roger Mason, Appellant, v Central Suffolk Hospital et al., Respondents.
    Submitted June 1, 2004;
    decided June 3, 2004
   Motion by Healthcare Association of New York State for leave to appear amicus curiae on the appeal herein granted to the extent that the proposed brief is accepted as filed. Twenty copies of the brief may be filed and three copies served within 10 days.


text:
    Janet McCabe, as Administrator of the Estate of Thaddeus Boyce, Deceased, and as Guardian of Alyssa Boyce, and Another, Appellant, v Competition Imports, Inc., Doing Business as BMW of Smithtown, Respondent, et al., Defendant.
    Submitted January 26, 2004;
    decided June 3, 2004
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    Sharwline Nicholson et al., Respondents, v Nicholas Scoppetta et al., Appellants, et al., Defendants.
    Submitted May 17, 2004;
    decided June 3, 2004
   Motion by National Network to End Domestic Violence, Inc., et al. for leave to appear amici curiae on consideration of the certified question herein granted to the extent that the proposed brief is accepted as filed. Nineteen additional copies may be filed and two additional copies served within 10 days.


text:
    Sharwline Nicholson et al., Respondents, v Nicholas Scoppetta et al., Appellants, et al., Defendants.
    Submitted May 17, 2004;
    decided June 3, 2004
   Motion by Pennsylvania Coalition Against Domestic Violence et al. for leave to file a brief amici curiae on consideration of the certified question herein granted and the proposed brief is accepted as filed.


text:
    Sharwline Nicholson et al., Respondents, v Nicholas Scoppetta et al., Appellants, et al., Defendants.
    Submitted May 17, 2004;
    decided June 3, 2004
   Motion by National Coalition Against Domestic Violence et al. for leave to appear amici curiae on consideration of the certified question herein granted to the extent that the proposed brief is accepted as filed.


text:
    Sharwline Nicholson et al., Respondents, v Nicholas Scoppetta et al., Appellants, et al., Defendants.
    Submitted May 24, 2004;
    decided June 3, 2004
   Motion by New York State Coalition Against Domestic Violence et al. for leave to appear amici curiae on consideration of the certified question herein granted to the extent that the proposed brief is accepted as filed.


text:
    Sharwline Nicholson et al., Respondents, v Nicholas Scoppetta et al., Appellants, et al., Defendants.
    Submitted May 24, 2004;
    decided June 3, 2004
   Motion by The Appellate Advocacy Network et al. for leave to file a brief amici curiae on consideration of the certified question herein granted and the proposed brief is accepted as filed.


text:
    Sharwline Nicholson et al., Respondents, v Nicholas Scoppetta et al., Appellants, et al., Defendants.
    Submitted May 24, 2004;
    decided June 3, 2004
   Motion by Legal Momentum et al. for leave to file a brief amici curiae on consideration of the certified question herein granted and the proposed brief is accepted as filed. Nineteen additional copies of the brief may be filed and two additional copies served within 10 days.


text:
    The People of the State of New York, Respondent, v Tracey Douglas, Appellant.
    Submitted May 17, 2004;
    decided June 3, 2004
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 45 West 45th Street, 7th Floor, New York, NY 10036 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Mark P. Jones, Appellant.
    Submitted May 17, 2004;
    decided June 3, 2004
   Motion for assignment of counsel granted and Edward J. Nowak, Esq., Monroe County Public Defender, 10 N. Fitzhugh Street, Rochester, New York 14614 assigned as counsel to the appellant on the appeal herein.


text:
    In the Matter of Charlene Polan, Appellant, v State of New York Insurance Department, Respondent.
    Submitted May 24, 2004;
    decided June 3, 2004
   Motion by Association of the Bar of the City of New York for leave to file a brief amicus curiae on the appeal herein granted to the extent that the proposed brief is accepted as filed.


text:
    [— NE2d —, — NYS2d —]
    Harold Davis, Appellant, v Branford Estates, Ltd., et al., Respondents.
    Decided June 8, 2004
    APPEARANCES OF COUNSEL

      Pollack, Pollack, Isaac & DeCicco, New York City (Brian J. Isaac of counsel), for appellant.

      Thomas M. Bona, PC., White Plains (Stephanie K. Cervoni of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, without costs, by remitting to Supreme Court for entry of a judgment solely against defendants Leonard of Delaware Limited Partnership and 117-13 Union Turnpike Corp. individually and doing business as Leonard Worth Associates, LLC, and, as so modified, affirmed.

The verdict sheet named Leonard Worth Associates instead of Leonard Worth Associates, LLC, as the defendant. The entire trial on liability was defended by Leonard Worth Associates, LLC (LLC), which made no motion or attempt to distinguish itself from Leonard Worth Associates, and the jury deliberations undisputedly concerned Leonard Worth Associates, LLC (see Cullen v Naples, 31 NY2d 818, 820 [1972]; Dalrymple v Williams, 63 NY 361, 364 [1875]). Accordingly, defendant LLC’s attempts to disavow liability after the verdict are unavailing. Plaintiff’s remaining arguments as to defendant Branford Estates, Ltd. lack merit.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order modified, without costs, by remitting to Supreme Court, Kings County, for further proceedings in accordance with the memorandum herein and, as so modified, affirmed.


text:
    [814 NE2d 430, 781 NYS2d 260]
    In the Matter of John J. Emmett, Jr., et al., Appellants, v Town of Edmeston, Respondent, and Darryl Barton et al., Respondents.
    Decided June 8, 2004

      APPEARANCES OF COUNSEL

      Vitanza, DiStefano & Dean, LLP, Norwich (Aaron A. Dean of counsel), for appellants.

      Lester A. Sittler, Fly Creek, for Darryl Barton and another, respondents.
   OPINION OF THE COURT

Memorandum.

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

Petitioners’ claims are directed at a Zoning Board of Appeals (ZBA) determination granting a variance. Petitioners cannot invoke the “relation back” doctrine (see CPLR 203 [b]) to avoid dismissal for failure to join the ZBA, a necessary party (see CPLR 1001, 1003). Use of the “relation back” doctrine requires “unity of interest” between the party in the proceeding and the nonparty (see Mondello v New York Blood Ctr.—Greater N.Y. Blood Program, 80 NY2d 219, 226 [1992]). Petitioners’ claim that the Town and the ZBA are united in interest must fail because a town and a zoning board of appeals are independent of each other where, as here, the ZBA is acting in its “administrative capacity independent from the Town Board” (Matter of Commeo, Inc. v Amelkin, 62 NY2d 260, 266 [1984]).

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.


text:
    Allen Hyman et al., Appellants, v Queens County Bancorp, Inc., Doing Business as Queens County Savings Bank, Respondent.
    Submitted April 5, 2004;
    decided June 8, 2004
   Motion, insofar as it seeks to dismiss the appeal from that portion of the Appellate Division order that dismissed the appeal to that Court from Supreme Court’s order denying appellants’ motion for “leave to renew and reargue,” granted, without costs, upon the ground that such part of the order does not finally determine the action within the meaning of the Constitution; motion to dismiss the appeal otherwise denied. Motion to strike material from the record on appeal and references thereto in appellants’ brief granted to the extent that the two additional photographs and the Edelson affidavit submitted on the motion for “leave to renew and reargue” and references thereto in appellants’ brief are deemed stricken. Motion for an enlargement of the time to file a respondent’s brief to 30 days after disposition of this motion granted.


text:
    Jamaica Public Service Co., Ltd., Appellant, v La Interamericana Compania de Seguros Generales S.A. et al., Respondents, et al., Defendants.
    Submitted April 26, 2004;
    decided June 8, 2004
   Motion, insofar as it seeks leave to appeal as against Seneca Insurance Company, dismissed as untimely (see CPLR 5513 [b]); motion, insofar as it seeks leave to appeal as against La Interamericana Compañía de Seguros Generales S.A., denied.


text:
    Leonard J. Levenson et al., Respondents, v Jonathan Lippman, as Chief Administrator of the Courts, et al., Appellants.
    Submitted April 12, 2004;
    decided June 8, 2004
   Chief Judge Kaye taking no part.


text:
    Zachary D. Ruffing et al., Plaintiffs, and Alyssa Pfleging et al., Appellants, v Union Carbide Corporation et al., Defendants, and International Business Machines Corporation, Respondent.
    Submitted May 3, 2004;
    decided June 8, 2004
   Judge Rosenblatt taking no part.


text:
    Zachary D. Ruffing et al., Plaintiffs, and Alyssa Pfleging et al., Appellants, v Union Carbide Corporation et al., Defendants, and International Business Machines Corporation, Respondent.
    Submitted April 19, 2004;
    decided June 8, 2004
   Judge Rosenblatt taking no part.


text:
    [814 NE2d 456, 781 NYS2d 284]
    The People of the State of New York, Respondent, v Gustavo Reynoso, Appellant.
    Decided June 10, 2004

      APPEARANCES OF COUNSEL

      Lynn W.L. Fahey, New York City, and Steven R. Bernhard for appellant.

      Richard A. Brown, District Attorney, Kew Gardens (Traci R. Wilkerson of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

We reject defendant’s claim that his warrantless arrest violated Payton v New York (445 US 573 [1980]). The record reveals that the arrest occurred either after defendant exited his home voluntarily or while he stood in his doorway.

Further, there is no merit to defendant’s claim that his constitutional right to confront witnesses was violated when the trial court allowed the People to elicit a statement that a non-testifying codefendant had made to a detective. The statement was admitted not to establish the truth of the matter asserted, but rather to show the detective’s state of mind. As the United States Supreme Court recently observed, “[t]he [Confrontation] Clause . . . does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted” (Crawford v Washington, 541 US —, — n 9, 124 S Ct 1354, 1369 n 9 [2004], citing Tennessee v Street, 471 US 409, 414 [1985]).

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, in a memorandum.


text:
    In the Matter of Alfred C. Blanche, Appellant, v Glenn S. Goord, as Commissioner of the New York State Department of Correctional Services, Respondent.
    Submitted May 3, 2004;
    decided June 10, 2004
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Anthony Bottom, Appellant, v Brion Travis, as Chairman of the New York State Board of Parole, Respondent.
    Submitted May 3, 2004;
    decided June 10, 2004
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Diamond Waterproofing Systems, Inc., Appellant, v 55 Liberty Owners Corp., Respondent.
    Submitted May 21, 2004;
    decided June 10, 2004
   Motion for leave to appeal granted. Motion for a stay pending disposition of the appeal granted.


text:
    JMD Holding Corp., Respondent, v Congress Financial Corporation, Appellant, et al., Defendant.
    Submitted April 19, 2004;
    decided June 10, 2004
   Motion by Commercial Finance Association for leave to appear amicus curiae on the motion for leave to appeal herein granted and the affirmation and brief are accepted as filed.


text:
    The People of the State of New York ex rel. Thurman Brown, Appellant, v Thomas M. Poole, Respondent.
    Submitted May 3, 2004;
    decided June 10, 2004
   Motion for leave to appeal dismissed upon the ground that the document from which leave to appeal is sought does not constitute an order or judgment appealable to this Court (see NY Const, art VI, § 3; CPLR 5602).


author: Graffeo, J. Read, J. (dissenting).

text:
    [980 NE2d 473, 956 NYS2d 425]
    Hudson Valley Federal Credit Union, Appellant, v New York State Department of Taxation and Finance et al., Respondents.
    Argued September 4, 2012;
    decided October 18, 2012

      POINTS OF COUNSEL

      K&L Gates LLP, New York City (Eli R. Mattioli, Darian Alexander, Anthony P. Badaracco and Sarah P. Kenney of counsel), and Quartararo & Lois PLLC, Fishkill (Dale J. Lois and Paul Quartararo of counsel), for appellant.
    I. 12 USC § 1768 prohibits the imposition of New York mortgage recording taxes on mortgages granted to federal credit unions. (St. Lawrence Univ. v Trustees of Theol. School of St. Lawrence Univ., 20 NY2d 317; Gwaltney of Smithfield, Ltd. v Chesapeake Bay Foundation, Inc., 484 US 49; Good Samaritan Hospital v Shalala, 508 US 402; Hartford Underwriters Ins. Co. v Union Planters Bank N.A., 530 US 1; United States v Ron Pair Enterprises, Inc., 489 US 235; Robinson v Shell Oil Co., 519 US 337; Miller v French, 530 US 327; Sander v Alexander Richardson Invs., 334 F3d 712; Knott v McDonald’s Corp., 147 F3d 1065; United States v State of Michigan, 851 F2d 803.) II. As federal instrumentalities, federal credit unions are immune from New York mortgage recording taxes under the Supremacy Clause. (Director of Revenue of Mo. v CoBank ACB, 531 US 316; McCulloch v Maryland, 4 Wheat [17 US] 316; United States v State of Michigan, 851 F2d 803; Federal Land Bank of New Orleans v Crosland, 261 US 374; Pittman v Home Owners’ Loan Corp., 308 US 21; Austin v Aldermen, 74 US 694; United States v San Diego County, 249 F Supp 321; TI Fed. Credit Union v DelBonis, 72 F3d 921; Keifer & Keifer v Reconstruction Finance Corp., 306 US 381.)

      Eric T. Schneiderman, Attorney General, New York City (Brian A. Sutherland, Barbara D. Underwood and Cecelia C. Chang of counsel), for respondents.
    I. The Federal Credit Union Act does not bar collection of recording taxes on mortgages securing federal credit union loans. (Hale v State Bd. of Assessment & Review, 302 US 95; Yazoo & Mississippi Valley R. Co. v Thomas, 132 US 174; California State Bd. of Equalization v Sierra Summit, Inc., 490 US 844; Matter of S.S. Silberblatt, Inc. v Tax Commn. of State of N.Y., 5 NY2d 635; Franklin Socy. v Bennett, 282 NY 79; Dawson v Kentucky Distilleries & Warehouse Co., 255 US 288; Matter of Citibank v State Tax Commn., 98 AD2d 929; United States v Detroit, 355 US 466; Snyder v Wetzler, 84 NY2d 941; South Carolina v Baker, 485 US 505.) II. Federal credit unions are not entitled to constitutional tax immunity as virtual arms of the United States Government. (United States v New Mexico, 455 US 720; Matter of Continental Bank Intl. v City of N.Y. Dept. of Fin., 69 NY2d 281; Graves v New York ex rel. O’Keefe, 306 US 466; Director of Revenue of Mo. v CoBank

      ACB, 531 US 316; First Agricultural Nat. Bank of Berkshire Cty. v State Tax Comm’n, 392 US 339; TI Fed. Credit Union v DelBonis, 72 F3d 921; United States v State of Michigan, 851 F2d 803; Matter of City of New York v Tully, 88 AD2d 701; Matter of Hotel Waldorf-Astoria Corp. v State Tax Commn., 86 AD2d 330.)

      Alicia M. Simmons, New York City, Sarah S. Normand and Preet Bharara for United States of America, amicus curiae.
    I. The lower court’s interpretation of section 122 of the Federal Credit Union Act (12 USC § 1768) is inconsistent with the statute’s plain language. (Rosner v Metropolitan Prop. & Liab. Ins. Co., 96 NY2d 475; McCulloch v Maryland, 17 US 316; California Credit Union League v City of Anaheim, 95 F3d 30, 520 US 1261; United States v State of Michigan, 851 F2d 803; United States v State of Maine, 524 F Supp 1056; First Fed. Sav. & Loan Assn. of Boston v Tax Comm’n of Mass., 437 US 255; Federal Land Bank of St. Paul v Bismarck Lumber Co., 314 US 95.) II. Even under the lower court’s interpretation of section 122 of the Federal Credit Union Act (12 USC § 1768), New York’s mortgage recording tax is an exempted tax on a federal credit union and its property. (Pittman v Home Owners’ Loan Corp., 308 US 21; Federal Land Bank of New Orleans v Crosland, 261 US 374; Laurens Fed. Sav. & Loan Assn. v South Carolina Tax Comm’n, 365 US 517; Franklin Socy. v Bennett, 282 NY 79; Mennonite Bd. of Missions v Adams, 462 US 791; Matter of S.S. Silberblatt, Inc. v Tax Commn. of State of N.Y., 5 NY2d 635; People v Trust Co. of Am., 205 NY 74.)

      Michael A. Lanotte, General Counsel, Credit Union Association of New York, Albany, and Henry C. Meier, Eric Richard, General Counsel, Credit Union National Association, Washington, D.C., and Kristina A. Del Vecchio for Credit Union Association of New York and another, amici curiae.
    I. New York State’s mortgage recording tax is an unconstitutional tax on the power given to federal credit unions to provide mortgages. (Connecticut Nat. Bank v Germain, 503 US 249; Richards v Ashcroft, 400 F3d 125; California v Central Pacific R. Co., 127 US 1; Owensboro Nat. Bank v Owensboro, 173 US 664; Railroad Co. v Georgia, 98 US 359; Trustees of Dartmouth College v Woodward, 17 US 518; Williams v City of Talladega, 226 US 404; Telegraph Co. v Texas, 105 US 460; McCulloch v Maryland, 17 US 316; Osborn v Bank of United States, 22 US 738.) II. Federal credit unions are federal instrumentalities. (Department of Employment v United States, 385 US 355; United States v State of

      Michigan, 851 F2d 803; TI Fed. Credit Union v DelBonis, 72 F3d 921; United States v State of Maine, 524 F Supp 1056; California Credit Union League v City of Anaheim, 95 F3d 30, 520 US 1261, 190 F3d 997; Federal Land Bank of St. Paul v Bismarck Lumber Co., 314 US 95; United States v New Mexico, 455 US 720; First Agricultural Nat. Bank of Berkshire Cty. v State Tax Comm’n, 392 US 339; McCulloch v Maryland, 17 US 316; Educational Films Corp. of America v Ward, 282 US 379.)

      Dewey Pegno & Kramarsky LLP, New York City (David S. Pegno of counsel), for The National Association of Federal Credit Unions, amicus curiae.
    I. Federal statute provides federal credit unions with a broad exemption from taxation, which the Appellate Division, First Department, improperly narrowed. (Federal Land Bank of St. Paul v Bismarck Lumber Co., 314 US 95; Federal Land Bank of New Orleans v Crosland, 261 US 374; Pittman v Home Owners’ Loan Corp., 308 US 21; Laurens Fed. Sav. & Loan Assn. v South Carolina Tax Comm’n, 365 US 517; Franklin Socy. v Bennett, 282 NY 79; First Agricultural Nat. Bank of Berkshire Cty. v State Tax Comm’n, 392 US 339; United States v State of Michigan, 851 F2d 803; California Credit Union League v City of Anaheim, 95 F3d 30, 520 US 1261, 190 F3d 997; United States v State of Maine, 524 F Supp 1056.) II. Federal credit unions are also immune from taxation as federal instrumentalities. (United States v New Mexico, 455 US 720; United States v State of Michigan, 851 F2d 803; TI Fed. Credit Union v DelBonis, 72 F3d 921; Director of Revenue of Mo. v CoBank ACB, 531 US 316.)

      Arnold & Porter LLP, New York City (Kent A. Yalowitz of counsel), for Federal Housing Finance Agency, amicus curiae.
    The federal statute at issue exempts federal credit unions from the mortgage recording tax. (Gwaltney of Smithfield, Ltd. v Chesapeake Bay Foundation, Inc., 484 US 49; Good Samaritan Hospital v Shalala, 508 US 402; United States v Ron Pair Enterprises, Inc., 489 US 235; Hartford Underwriters Ins. Co. v Union Planters Bank, N.A., 530 US 1; Violette v P.A. Days, Inc., 427 F3d 1015; Department of Housing & Urban Development v Rucker, 535 US 125; Robinson v Shell Oil Co., 519 US 337; United States v State of Michigan, 851 F2d 803; Director of Revenue of Mo. v CoBank ACB, 531 US 316; Miller v French, 530 US 327.)

      Hollingsworth LLP, Washington, D.C. (Rosemary Stewart of counsel), for American Bankers Association and another, amici curiae.
    I. Hudson Valley Federal Credit Union seeks a novel interpretation of the Federal Credit Union Act in order to obtain a competitive business advantage over other financial institution lenders in New York. (Laurens Fed. Sav. & Loan Assn. v South Carolina Tax Comm’n, 365 US 517; Pittman v Home Owners’ Loan Corp., 308 US 21; Federal Land Bank of New Orleans v Crosland, 261 US 374.) II. There is no statutory basis for the tax immunity sought by Hudson Valley Federal Credit Union. (Iselin v United States, 270 US 245; Lamie v United States Trustee, 540 US 526; Barnhart v Peabody Coal Co., 537 US 149; Pittman v Home Owners’ Loan Corp., 308 US 21; Chevron US A. Inc. v Echazabal, 536 US 73; Whitfield v United States, 543 US 209; FCC v NextWave Personal Communications Inc., 537 US 293; Franklin Nat. Bank of Franklin Square v New York, 347 US 373; Oklahoma Tax Comm’n v United States, 319 US 598; California State Bd. of Equalization v Sierra Summit, Inc., 490 US 844.) III. Because Congress expressly stated specific tax exemptions in the Federal Credit Union Act, it is unnecessary to conduct a constitutional analysis of Hudson Valley Federal Credit Union’s status as an instrumentality of the United States Government. (First Agricultural Nat. Bank of Berkshire Cty. v State Tax Comm’n, 392 US 339.)

      Wade Beltramo, General Counsel, New York State Conference of Mayors and Municipal Officials, Albany, and Michael E. Kenneally, Jr., for New York State Conference of Mayors and Municipal Officials, amicus curiae.
    I. The New York State mortgage recording tax is a privilege tax that is outside the scope of the generic exemption from all taxation granted to federal credit unions by Congress. (United States v Wells Fargo Bank, 485 US 351; Matter of S.S. Silberblatt, Inc. v Tax Commn. of State of N.Y., 5 NY2d 635; Franklin Socy. v Bennett, 282 NY 79.) II. Generic exemptions from “all taxation” apply only to direct taxation. (United States v Wells Fargo Bank, 485 US 351; Laurens Fed. Sav. & Loan Assn. v South Carolina Tax Comm’n, 365 US 517; Pittman v Home Owners’ Loan Corp., 308 US 21.) III. New York State mortgage recording tax is not a direct tax on mortgages. (Matter of S.S. Silberblatt, Inc. v Tax Commn. of State of N.Y., 5 NY2d 635; Franklin Socy. v Bennett, 282 NY 79; United States v Wells Fargo Bank, 485 US 351.) IV The cost of expanding the exemption will ultimately be borne by local governments in New York.
   OPINION OF THE COURT

Graffeo, J.

We are asked in this case whether mortgages issued by federal credit unions are subject to the New York State mortgage recording tax under article 11 of the Tax Law. We answer in the affirmative.

In 2009, plaintiff Hudson Valley Federal Credit Union commenced this declaratory judgment action against defendants State Department of Taxation and Finance, its Commissioner and the State of New York (collectively, the Department). Hudson Valley asserted that it was not required to pay the mortgage recording tax (MRT) on mortgage obligations issued to members because (1) the Federal Credit Union Act (FCUA) exempts federal credit unions and their property from state taxation and (2) as instrumentalities of the United States, federal credit unions are immune from state taxation under the Supremacy Clause. Supreme Court granted the Department’s motion to dismiss the complaint (28 Misc 3d 1001 [Sup Ct, NY County 2010]) and the Appellate Division affirmed (85 AD3d 415, 415 [1st Dept 2011]). Hudson Valley appeals by leave of this Court.

First enacted in 1906, Tax Law § 253 imposes a MRT of 500 for every $100 of principal debt on each mortgage of real property situated within the state. Payment of the tax is a condition precedent to the proper recording of a mortgage (see Tax Law § 258 [1]). Although the Tax Law does not specify whether the lender or the borrower is obligated to pay the MRT, the Attorney General is authorized to commence an action for nonpayment against either the mortgagor or the mortgagee or both (see Tax Law § 266).

Hudson Valley’s challenge to the imposition of the MRT relies primarily on federal statutory language contained in the FCUA, which provides that

“[t]he Federal credit unions organized hereunder, their property, their franchises, capital, reserves, surpluses, and other funds, and their income shall be exempt from all taxation now or hereafter imposed by the United States or by any State, Territorial, or local taxing authority; except that any real property and any tangible personal property of such Federal credit unions shall be subject to Federal, State, Territorial, and local taxation to the same extent as other similar property is taxed” (12 USC § 1768).

Hudson Valley urges us to interpret the phrase “[flederal credit unions . . . shall be exempt from all taxation” as excluding all mortgage loans issued by federal credit unions from payment of the MRT.

As a general rule, courts strictly construe federal tax exemptions in derogation of state taxing authority and decline to extend such exemptions beyond their express provisions (see California State Bd. of Equalization v Sierra Summit, Inc., 490 US 844, 851-852 [1989]; United States v Wells Fargo Bank, 485 US 351, 354 [1988]; Hale v State Bd. of Assessment & Review, 302 US 95, 103 [1937]; Yazoo & Mississippi Valley R. Co. v Thomas, 132 US 174, 185 [1889]). Consistent with this principle, in other contexts, when Congress has intended to immunize “mortgages” of federally chartered lending entities from state taxation, it has done so explicitly. Examples of such express intent are found in the National Housing Act (see 12 USC § 1723a [c] [1], [2] [exempting from state taxation national mortgage associations, their “franchise(s), capital, reserves, surplus(es), mortgages or other security holdings, and income” (emphasis added)]); the National Consumer Cooperative Bank Act (see 12 USC § 3019 [a] [“The Bank, including its franchise, capital, reserves, surplus, mortgages, or other security holdings and income shall be exempt from taxation now or hereafter imposed by any State” (emphasis added)]); the Farm Credit Act of 1971 (see 12 USC § 2098 [“The mortgages held by the Federal land bank associations and the notes, bonds, debentures, and other obligations issued by the associations shall be considered and held to be instrumentalities of the United States and, as such, they and the income therefrom shall be exempt from all Federal, State, municipal, and local taxation” (emphasis added)]; 12 USC § 2023 [same for farm credit banks]); and the Higher Education Act of 1965 (see 20 USC § 1087-2 [b] [2] [the Student Loan Marketing “Association, including its franchise, capital, reserves, surplus, mortgages, or other security holdings, and income shall be exempt from all taxation now or hereafter imposed by any State” (emphasis added)]). Concomitantly, where Congress has used identical terminology in similar statutes to allow an exclusion, the absence of that terminology in an analogous statute represents a strong indication of a contrary intent (see Whitfield v United States, 543 US 209, 216-217 [2005]; FCC v NextWave Personal Communications Inc., 537 US 293, 302 [2003]; Franklin Nat. Bank of Franklin Square v New York, 347 US 373, 378 n 7 [1954]). Given the uniform choice of language in these other federal acts, one would expect that if federal credit union mortgages were intended to be excluded from state MRTs, such immunity would have been plainly stated in the FCUA. Instead, although the FCUA contains an extensive list of exemptions relevant to federal credit unions, it makes no mention of mortgages or loans of any kind (see 12 USC § 1768). This omission weighs against Hudson Valley’s argument.

In response to the lack of a statutory reference to mortgages, Hudson Valley submits that the term “property” in section 1768 can be construed broadly to encompass mortgage loans. Citing several United States Supreme Court decisions, it argues that mortgage recording taxes, such as the MET, are taxes on “property” covered by the prohibition against state taxation. In the alternative, Hudson Valley contends that the MET is tantamount to an illegal direct tax on the credit unions themselves. We do not agree.

The legislative history of the act refutes Hudson Valley’s interpretation of the term “property.” Congress enacted the FCUA in 1934, authorizing the formation of federal credit unions. The statute was amended three years later to address the disproportionate tax burden borne by those entities as compared to banks—resulting in the addition of the provisions at issue in 12 USC § 1768 (see Pub L 75-416, § 4, 51 US Stat 4 [75th Cong, 2d Sess, Dec. 6, 1937]). But from the act’s inception and, more importantly, at the time of the 1937 amendment, federal credit unions were not empowered to issue mortgage loans to their members (see Pub L 73-467, § 7, 48 US Stat 1216, 1218 [73rd Cong, 2d Sess, June 26, 1934] [permitting credit unions only “(t)o make loans with maturities not exceeding two years”]). Congress could not have intended section 1768 to exempt from state taxation the particular lending activity at issue here&emdash;the issuance of mortgage loans&emdash;since credit unions could not engage in such activity. Furthermore, when Congress finally granted federal credit unions the power to offer residential mortgages (see Pub L 95-22, § 302, 91 US Stat 49 [95th Cong, 1st Sess, Apr. 19, 1977]), it did not amend section 1768 to specifically include “mortgages,” nor did it otherwise articulate an intent to include mortgages within the definition of the “property” exempt from state taxation.

The Supreme Court holdings cited by Hudson Valley do not alter our conclusion (see Laurens Fed. Say. & Loan Assn. v South Carolina Tax Comm'n, 365 US 517 [1961]; Pittman v Home Owners' Loan Corp., 308 US 21 [1939]; Federal Land Bank of New Orleans v Crosland, 261 US 374 [1923]). In those cases, the Supreme Court concluded that the financial institutions involved-a federal savings and loan association, a home owners' loan corporation and a federal land bank-were exempt from state mortgage recording taxes by virtue of the federal tax exemption statutes pertaining to those institutions (see Laurens, 365 US at 521; Pittman, 308 US at 31-32; Crosland, 261 US at 378). In sharp contrast to the provisions of the FCUA, however, the federal acts examined in Laurens, Pittman and Crosland provided for an exemption from state mortgage recording taxation by direct statutory reference to "advances," "loans" and "mortgages" (see 12 USC § 1433; former Home Owners' Loan Act of 1933 § 4 [c] [Pub L 73-43, 48 US Stat 128, 130]; former Federal Farm Loan Act of 1916 § 26 [Pub L 64-158, 39 US Stat 360, 380]). As we have noted, section 1768 of the FCUA falls to incorporate similar termino1ogy~ Consequently, these Supreme Court cases are not controlling in determining congressional intent related to the FCUA.

Hudson Valley further maintains that federal credit unions were established for the purpose of making credit more accessible for “provident or productive purposes” to “people of small” or modest means (see Pub L 73-467, Preamble, § 2, 48 US Stat 1216, 1216 [73rd Cong, 2d Sess, June 26, 1934]). It argues that permitting the MET to apply to federal credit unions thwarts the FCUA’s purpose and has serious financial ramifications for federal credit unions. This contention is unfounded.

Hudson Valley does not dispute that prior to the initiation of this action in 2009, it voiced no objection to the assessment of the MET. Moreover, contrary to its assertions, there appears little danger that the MET will drive federal credit unions out of business. Over the years, Congress has greatly expanded the powers of the credit unions and they now provide many of the same services traditionally offered by banks. For example, credit unions may accept deposits in “share” and “share draft” accounts (equivalent to bank savings and checking accounts respectively), issue first and second residential mortgages, make automobile and personal loans, extend lines of credit (including credit cards) and offer other services (see 12 USC § 1757; 12 CFR 701.21, 701.35). In 1998, Congress passed the Credit Union Membership Access Act (CUMAA) that enlarged their permissible membership (see Pub L 105-219, § 101, 112 US Stat 913, 914 [105th Cong, 2d Sess, Aug. 7, 1998], amending 12 USC § 1759 [b]). Thereafter, the National Credit Union Administration revised its regulations, making it easier for federal credit unions to qualify for community charters to serve larger geographic territories. According to a recent United States Government Accountability Office study, this has resulted in the dramatic growth in the number of credit unions with community-based charters (see U.S. Government Accountability Office, Report to Chairman, Committee on Ways and Means, House of Representatives, Credit Unions: Greater Transparency Needed on Who Credit Unions Serve and on Senior Executive Compensation Arrangements at 10 [GAO-07-29, Nov. 2006] [stating that membership in community-chartered federal credit unions had “nearly tripled” and the assets of those credit unions had “nearly quadrupled” between 2000 and 2006]).

Lastly, we reject Hudson Valley’s contention that it is a federal instrumentality entitled to exemption from the MRT under the Supremacy Clause. Although Hudson Valley cites authority in support of its argument that federal credit unions are federal instrumentalities, the United States Supreme Court has clarified that constitutional “tax immunity is appropriate in only one circumstance: when the levy falls on the United States itself, or on an agency or instrumentality so closely connected to the Government that the two cannot realistically be viewed as separate entities, at least insofar as the activity being taxed is concerned” (United States v New Mexico, 455 US 720, 735 [1982]). Federal credit unions are private associations chartered under federal law. Although they are regulated by the National Credit Union Administration—a federal agency—they are wholly owned, funded and managed by their members (see 12 USC §§ 1753, 1759, 1761, 1761b). Members elect credit union boards of directors (see 12 USC § 1761). The directors have a significant amount of autonomy in administering credit unions’ daily operations, including controlling investments, setting the maximum number of share accounts and designating the classes of shares (see 12 USC § 1761b). Further, subject to some limitations contained in the FCUA, boards of directors have the authority to “determine the interest rates on loans [including mortgages], the security[ ] and the maximum amount which may be loaned and provided in lines of credit” (12 USC § 1761b [8]). We therefore do not view federal credit unions as so “closely connected” to the United States Government that they “cannot realistically be viewed as separate entities” with respect to mortgage-lending activities.

In sum, based on principles of statutory interpretation and the legislative history of the FCUA, we hold that federal credit union mortgages are not exempt from the State’s MET.

Accordingly, the order of the Appellate Division should be modified, with costs to defendants, by declaring that federal credit unions are not exempt from the New York State mortgage recording tax and, as so modified, affirmed.

Read, J. (dissenting).

The Federal Credit Union Act (the FCUA) (12 USC §§ 1751-1795k) provides that “[t]he Federal credit unions organized hereunder, their property, their franchises, capital, reserves, surpluses, and other funds, and their income shall be exempt from all taxation now or hereafter imposed by” a government “except that any real property and any tangible personal property of such Federal credit unions shall be subject to Federal, State, Territorial, and local taxation to the same extent as other similar property is taxed” (see 12 USC § 1768 [emphases added]). I interpret this provision to mean what it plainly says: a federal credit union is exempt from all taxation except that upon real and tangible personal property.

New York’s mortgage recording tax (MET) (Tax Law § 253) is an excise tax on the privilege of transferring title, not a tax on the real property subject to the mortgage issued to secure a loan. Further, the MET is not a tax on tangible personal property, such as portable machinery and equipment, tools, vehicles or other assets (other than land or buildings) with a physical form. Because the MET is not a tax on real or tangible personal property—the only two carve-outs from the FCUA’s exemption of federal credit unions from “all taxation”—New York may not impose the MET on plaintiff Hudson Valley Federal Credit Union (Hudson Valley).

L

The United States Supreme Court’s decision in Federal Land Bank of St. Paul v Bismarck Lumber Co. (314 US 95 [1941]) confirms the correctness of this result. The Court there held that a statutory provision exempting a federal entity from all taxation does not allow the courts to create exceptions different or broader than those expressly stated by Congress. The statute considered in Bismarck, section 26 of the Federal Farm Loan Act, provided that

“every Federal land bank . . . , including the capital and reserve or surplus therein and the income derived therefrom, shall be exempt from Federal, State, municipal, and local taxation, except taxes upon real estate held, purchased, or taken by said bank . . . First mortgages executed to Federal land banks, or to joint stock land banks, and farm loan bonds issued under the provisions of this Act, shall be deemed and held to be instrumentalities of the Government of the United States, and as such they and the income derived therefrom shall be exempt from Federal, State, municipal, and local taxation” (Pub L 64-158, § 26, 39 US Stat 360, 380 [emphases added]; see 12 USC former §§ 931-933).

At issue in Bismarck was whether building materials purchased by a federal land bank for use in the repair and improvement of foreclosed properties were subject to state sales tax. Like the MRT, a sales tax is an excise tax. In upholding imposition of the state sales tax, the North Dakota Supreme Court concluded that because section 26 contained specific exemptions for “capital and reserve or surplus therein and the income derived therefrom,” all other taxes were authorized except for taxes on real estate (see Federal Land Bank of St. Paul v Bismarck Lbr. Co., 70 ND 607, 627-628, 297 NW 42, 52 [1941]). This is the same reasoning employed explicitly by the Appellate Division and implicitly by the majority here (see Hudson Val. Fed. Credit Union v New York State Dept. of Taxation & Fin., 85 AD3d 415, 417 [1st Dept 2011]; majority op at 8-9).

The Supreme Court reversed, concluding that “the broad exemption accorded [by section 26] to ‘every Federal land bank’ ” barred the state from imposing any tax of any kind, unless it fell within the express statutory exception for real estate taxes (see Bismarck, 314 US at 100). The Court observed that “[t]he unqualified term ‘taxation’ used in section 26 clearly encompasse[d the sales tax] within its scope,” and thus afforded the entity an important “protection” that could not “be frittered away” (see id. at 99). Further, “[i]n reaching an opposite conclusion,” the North Dakota Supreme Court “ignored the plain language, ‘That every Federal land bank . . . shall be exempt from Federal, State, municipal, and local taxation’ ” (id.).

The Court emphasized that section 26’s list of exempt items— i.e., “including the capital and reserve or surplus therein and the income derived therefrom”—simply illustrated and substantiated the breadth of the entity’s general exemption from all taxes except for taxes on real estate. It did not limit or modify the general exemption (id. at 100 [“(T)he term ‘including’ is not one of all-embracing definition, but connotes simply an illustrative application of the general principle”]). Indeed, as the Court explained, “[i]f the broad exemption accorded to ‘every Federal land bank’ were limited to the specific illustrations mentioned in the participial phrase introduced by ‘including’, there would have been no necessity to except from the purview of [the statute] the real estate held by the land banks” (id.).

Finally, the Court noted that “[t]he additional exemptions granted to farm loan bonds and first mortgages executed to the land banks” did not suggest a contrary result: “The bonds [might] be held by private persons, and, of course, the general exemption of section 26 would not extend to them. Likewise the general exemption would protect mortgages executed to the land banks and held by them, but it would not survive a transfer” (id. [emphasis added]). In short, the general exemption from taxation for the federal land banks included mortgages “executed to .. . and held by” the entity, although the word “mortgages” did not appear in the “illustrative application of the general principle” (cf. majority op at 8 [ascribing significance to whether the word “mortgages” appears in illustrative lists in federal statutes]).

Thus, Bismarck establishes that (1) a statutory exemption of an entity from taxation protects that entity and its transactions from all taxes for which it would otherwise be liable; (2) a clause in such a statute listing specific items that are exempt from taxation is illustrative, not limiting; and (3) exceptions to the grant of immunity from taxation must be stated expressly, not implied by the courts. These principles control the outcome of this case. Section 122 of the FCUA (12 USC § 1768) grants federal credit unions immunity from “all taxation.” Although the FCUA does not use the word “including,” the list of exemptions in the FCUA is either illustrative, or in addition to, the exemption of federal credit unions themselves, and in either case, the exemption for the entity itself is sufficient under Bismarck. Because the FCUA explicitly excepts only taxation upon real and tangible personal property, and the MET does not fall into either category, collection of the MET from plaintiff Hudson Valley is foreclosed (see Bismarck, 314 US at 99; see also California Credit Union League v City of Anaheim, 95 F3d 30, 31-32 [9th Cir 1996] [employees of federal credit unions immune under section 1768 from city’s transient occupancy tax while in the city on business], vacated on other grounds 520 US 1261 [1997], on remand 190 F3d 997 [9th Cir 1999]; United States v State of Michigan, 851 F2d 803, 807 [6th Cir 1988] [federal credit unions held to be immune from portions of state sales tax]).

Applying Bismarck, the United States District Court for the District of Columbia recently held that Fannie Mae and Freddie Mac are exempt from the District of Columbia’s recordation tax, reasoning that “to hold otherwise would contravene Supreme Court case law”—namely, Bismarck—“interpreting language [that was] virtually identical” (see Hager v Federal Natl. Mtge. Assn., 882 F Supp 2d 107, 112 [D DC 2012]; accord Hertel v Bank of Am. N.A., 897 F Supp 2d 579 [WD Mich 2012] [Fannie Mae and Freddie Mac are exempt from a Michigan recording tax]; but see Oakland County v Federal Hous. Fin. Agency, 871 F Supp 2d 662 [ED Mich 2012] [Fannie Mae and Freddie Mac are not exempt from Michigan’s state and local real estate transfer taxes]). The provisions at issue in Hager—12 USC § 1723a (c) (2) (Fannie Mae) and 12 USC § 1452 (e) (Freddie Mac)—are likewise “virtually identical” to 12 USC § 1768. All three provisions exempt federally chartered entities from “all taxation,” with specified exceptions for real property (Fannie Mae and Freddie Mac) and real and tangible personal property (federal credit unions).

In relying on Bismarck as “the on-point comparison for interpreting the statutes at issue,” the District Court judge rejected the notion, also advanced by the State in this case, that the United States Supreme Court’s decision in United States v Wells Fargo Bank (485 US 351 [1988]) required him to interpret “all taxation” to mean only “all direct taxation,” and so “compelled] the conclusion that Fannie Mae and Freddie Mac are subject to excise taxes,” as was held in Oakland County (Hager, 882 F Supp 2d at 112-113). But as the judge pointed out, rather than construing an exemption that applied to a particular entity, the Court in Wells Fargo examined how a statutory exemption of certain property—“Project Notes”—from “all taxation” affected the computation of a federal estate tax, an excise tax (like the sales tax in Bismarck or the MRT here). He explained that

“[bjecause the Wells Fargo provision exempted property from taxation, and because an excise tax like the estate tax is imposed on something other than the property itself, the statutory provision did not reach the estate tax. In other words, the exemption at issue did not match up with the tax imposed.
“The statutory provisions at issue in this case, on the other hand, exempt an entity from all taxation. A recordation tax for a deed [that Fannie Mae or Freddie Mac] records is indisputably a tax on that entity. It thus falls within the statutory exemption. An example illustrates the difference: if the statute had provided that ‘Fannie Mae’s real property shall be exempt from all taxation,’ Fannie Mae would still be liable for the recordation tax because it is a tax on the real property’s transfer rather than on the real property. But because the statute instead exempts Fannie Mae itself, neither its property nor its activities can be taxed” (882 F Supp 2d at 112).

Finally, the District Court judge remarked that, accepting the argument that Fannie Mae and Freddie Mac were subject to the District of Columbia’s recordation tax “would lead to near absurdity” as “[i]t would leave the statutory provisions, so sweeping in their language, virtually meaningless: Fannie Mae and Freddie Mac would be free only from capitations and taxes upon personal property,” since only these two taxes and a tax upon real property “are definitely known to be direct” (882 F Supp 2d at 113 [internal quotation marks and citations omitted]). He commented that “[i]f that were all Congress meant to accomplish, surely it would have done so with a narrowly phrased provision rather than the sweeping ‘all taxation’ formulation it chose” (882 F Supp 2d at 113).

IL

While pledging fidelity to the statutory text, the majority avoids section 1768’s unambiguous meaning in several ways. First, as already noted, the majority emphasizes the absence of the word “mortgages” in section 1768 because “in other contexts, when Congress has intended to immunize ‘mortgages’ of federally chartered lending entities from state taxation, it has done so explicitly” (majority op at 8). This statement directly contradicts Bismarck, which makes clear that where an entity is exempt from all taxation, an illustrative list does not limit or modify this general exemption. And of course, as the majority correctly points out, the FCUA did not authorize federal credit unions to offer residential mortgages until 1977 whereas the exemption set out in section 1768 was added to the FCUA long before, in 1937 (id. at 9-10).

The majority then attaches great significance to Congress’s neglect to amend section 1768 in 1977 so as “to specifically include ‘mortgages,’ [or to] otherwise articulate an intent to include mortgages within the definition of the ‘property’ exempt from state taxation” (id. at 10). This gets it exactly backwards, given Bismarck. That is, since section 1768 exempts federal credit unions from all state taxes except those imposed upon real and tangible personal property, Congress did not need to add the word “mortgages.” Rather, Congress would have to have created a third exception to cover taxes on mortgages and/or the transfer of real property in order to remove such taxes from the general exemption for “all taxation now or hereafter imposed” (emphasis added). Congress did not do this, and it is not for the courts to infer an additional exception.

Finally, the majority “decline[s] to follow Hager and Hertel ... in light of our own prior holdings as to the nature of the MRT” in Matter of S.S. Silberblatt, Inc. v Tax Commn. of State of N.Y. (5 NY2d 635 [1959]) and Franklin Socy. v Bennett (282 NY 79 [1939]) (majority op at 11 n 5). We held in both cases that the MRT is not a property tax; rather it is “a tax on the privilege of recording the mortgage” (Silberblatt, 5 NY2d at 642), a species of excise tax (Franklin Socy., 282 NY at 86). But in determining whether a federal statutory exemption precludes a particular form of state taxation, the characterization of the tax is a question of federal, not state, law (see First Agricultural Nat. Bank of Berkshire Cty. v State Tax Comm’n, 392 US 339, 347 [1968]; see also Federal Land Bank of New Orleans v Crosland, 261 US 374, 378 [1923] [noting that the Supreme Court was not bound by the Alabama Supreme Court’s characterization of that state’s mortgage recording tax for purposes of determining whether a first mortgage was exempt from taxation under the Federal Farm Loan Act]). And the Supreme Court has held that a state mortgage recording tax is a tax on the mortgage (see Crosland, 261 US at 378-379; Pittman v Home Owners’ Loan Corp., 308 US 21, 31 [1939]).

In sum, 12 USC § 1768 exempts federal credit unions from all state taxation with the exception of taxes on real and tangible personal property, and the MET is neither; therefore, plaintiff Hudson Valley, a federal credit union, is not subject to the MET. The statute’s text and federal case law, including Supreme Court precedent, call for this result. Accordingly, I respectfully dissent.

Chief Judge Lippman and Judges Ciparick, Pigott and Jones concur with Judge Graffeo; Judge Eead dissents and votes to reverse in a separate opinion; Judge Smith taking no part.

Order modified, etc.

      . Tax Law § 253 (1) reads as follows:

        “A tax of [500] for each [$100] and each remaining major fraction thereof of principal debt or obligation which is, or under any contingency may be secured at the date of the execution thereof or at any time thereafter by a mortgage on real property situated within the state recorded on or after [July 1, 1906], is hereby imposed on each such mortgage, and shall be collected and paid as provided in this article.”

      . The dissent contends that the U.S. Supreme Court’s decision in Federal Land Bank of St. Paul v Bismarck Lumber Co. (314 US 95 [1941]) interpreting the Federal Farm Loan Act of 1916 requires that mortgages issued by federal credit unions should similarly be included in the FCUA. In Bismarck, the Supreme Court held that the Farm Loan Act was written in a manner that allowed the enactment to encompass additional tax exemptions because the use of the word “including” indicated that the list of those exemptions was not exhaustive (id. at 99-100). Since the structure of the FCUA differs, it should not be interpreted to permit courts to add new exemptions beyond those specified. Hence, Bismarck is distinguishable and the dissent’s reliance on it is misplaced.

      . At the time, the act permitted state taxation of members’ shares in federal credit unions as well as taxation of federal credit unions themselves and their property (see Pub L 73-467, § 18, 48 US Stat 1216, 1222 [73rd Cong, 2d Sess, June 26, 1934]). The states commonly taxed domestic banking corporations based primarily on their share capital (see HR Rep 1579, 75th Cong, 1st Sess at 2 [Aug. 17, 1937]). Because federal credit unions, unlike banks, were not permitted to accept deposits, their share capital represented a higher proportion of their total resources and, therefore, they paid significantly more in taxes (see id.). Congress amended section 1768 in order to level the playing field. Although credit unions soon obtained the authority to accept member deposits, the relevant portion of the statute has remained unaltered.

      . The Supreme Court held in Laurens that the term “advances” in 12 USC § 1433 is synonymous with “loans” (365 US at 521 n 9).

      . Hudson Valley and amici also cite two Federal District Court decisions standing for the proposition that a state tax imposed on the recording of an entity’s instrument is the same as a tax on the entity itself and, since the entity is exempt from “all taxation,” it is necessarily exempt from the state recording tax (see Hager v Federal Natl. Mtge. Assn., 882 F Supp 2d 107, 111-112 [D DC 2012]; Hertel v Bank of Am. N.A, 897 F Supp 2d 579, 582, 585 [WD Mich 2012]). We note that at least one other Federal District Court examined the same issue and reached a contrary conclusion (see Oakland County v Federal Hous. Fin. Agency, 871 F Supp 2d 662, 669-670 [ED Mich 2012]). Further, we decline to follow Hager and Hertel in this case in light of our own prior holdings as to the nature of the MET (see Matter of S.S. Silberblatt, Inc. v Tax Commn. of State of N.Y., 5 NY2d 635, 640, 642 [1959]; Franklin Socy. v Bennett, 282 NY 79, 86 [1939]).

      . Instead of causing the negative consequences predicted by Hudson Valley, the elimination of the MRT on credit union mortgages could conceivably lure mortgage business away from banks by offering lower closing costs to credit union borrowers, thereby giving credit unions a competitive advantage over the banking industry in New York. Had Congress intended to alter the mortgage-lending playing field between federal credit unions and banks, it could have stated such an intention.

      . In each of those cases, the federal circuit courts considered the instrumentality status of federal credit unions in other contexts (see California Credit Union League v City of Anaheim, 95 F3d 30, 31 [9th Cir 1996] [holding that federal credit union employees were exempt from the transient occupancy tax applied to their hotel rates], vacated on other grounds 520 US 1261 [1997]; TI Fed. Credit Union v DelBonis, 72 F3d 921, 935 [1st Cir 1995] [rejecting an attempt to discharge, through bankruptcy, certain student loan debt held by a federal credit union]; United States v State of Michigan, 851 F2d 803, 807 [6th Cir 1988] [concluding that federal credit unions, as purchasers, were constitutionally immune from state sales tax]).