author: Graffeo, J.

text:
    [ 844 NE2d 285, 810 NYS2d 738]
    In the Matter of Jamie R., Appellant, v Eileen Consilvio, as Director of Kirby Forensic Psychiatric Center, Respondent.
    Argued January 5, 2006;
    decided February 9, 2006

      POINTS OF COUNSEL

      Mental Hygiene Legal Service, New York City (Stephen J. Harkavy, Karen G. Andreasian and Diane G. Temkin of counsel), for appellant.
    I. The Appellate Division erred by holding that there is no jury rehearing and review of a recommitment proceeding where the Legislature expressly provided for a jury rehearing and review of a recommitment proceeding and where it is required by state and federal constitutional standards. (Matter of Dutchess County Dept. of Social Servs. v Day, 96 NY2d 149; Cohen v Anne C., 301 AD2d 446; Matter of Wolpoff v Cuomo, 80 NY2d 70; Cohen v State of New York, 94 NY2d 1; Mental Hygiene Legal Servs. v Ford, 92 NY2d 500; Mathews v Eldridge, 424 US 319; Sandin v Conner, 515 US 472; Foucha v Louisiana, 504 US 71; Jackson v Indiana, 406 US 715; Matter of Kesselbrenner v Anonymous, 33 NY2d 161.) II. The Appellate Division erred by holding that an insanity acquittee may take only a direct appeal of a recommitment order, and may not choose a jury rehearing and review of a recommitment order, when the Legislature expressly provided for either a direct appeal or a rehearing and review of a recommitment order. (Matter of Norman D., 3 NY3d 150; Matter of Coates, 9 NY2d 242.) III. Where a dangerous mental disorder is an issue to be tried in a jury rehearing and review, that issue is for the jury, not the judge. (Francis S. v Stone, 221 F3d 100; Matter of David B., 97 NY2d 267; Motor Veh. Mfrs. Assn. of U.S. v State of New York, 75 NY2d 175; Hudson View II Assoc. v Gooden, 222 AD2d 163; Sporza v German Sav. Bank, 192 NY 8; Matter of Watkins R. v Berry, 276 AD2d 492; Matter of Barber v Rochester Psychiatric Ctr., 250 AD2d 87; Emmerich v Thorley, 35 App Div 452; Matter of Robert C. v Wack, 167 Misc 2d 677; Matter of Maureen A. v Wack, 153 Misc 2d 600.) IV The standard of appellate review of a jury rehearing and review of a recommitment order is the jury trial standard of review.

      Eliot Spitzer, Attorney General, New York City (Julie Loughran, Caitlin J. Halligan, Daniel Smirlock and Robert H. Easton of counsel), for respondent.
    I. The Appellate Division correctly concluded that dangerous mental disorder is not an issue for determination on rehearing and review. (Majewski v BroadalbinPerth Cent. School Dist., 91 NY2d 577; Matter of Auerbach v Board of Educ. of City School Dist. of City of N.Y., 86 NY2d 198; Matter of Norman D., 3 NY3d 150; Matter of David B., 97 NY2d 267; Riley v County of Broome, 95 NY2d 455; Mental Hygiene Legal Servs. v Ford, 92 NY2d 500; Matter of 1605 Book Ctr. v Tax Appeals Trib. of State of N.Y., 83 NY2d 240; Matter of Washington Post Co. v New York State Ins. Dept, 61 NY2d 557; Cohen v Anne C., 301 AD2d 446; Matter of Richard H. v Consilvio, 6 AD3d 7.) II. There is no constitutional or statutory requirement that a jury determine whether an insanity acquit-tee has a dangerous mental disorder that required secure hospitalization. (People v Lally, 19 NY2d 27; Mental Hygiene Legal Servs. v Ford, 92 NY2d 500; Morrissey v Brewer, 408 US 471; Matter of Coates, 9 NY2d 242; Mathews v Eldridge, 424 US 319; Matter of Consilvio v Michael B., 307 AD2d 852; Matter of John K. v Consilvio, 9 AD3d 256, 3 NY3d 737; People ex rel. Brown v Johnston, 9 NY2d 482; McGraw v Wack, 220 AD2d 291; Matter of Norman D., 3 NY3d 150.) III. In any event, the First Department applied the correct standard of review, and its reversal on the facts should be affirmed. (Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492; Matter of James M. v Consilvio, 6 AD3d 153; Lolik v Big V Supermarkets, 86 NY2d 744.)
   OPINION OF THE COURT

Graffeo, J.

CPL 330.20 affords criminal defendants who have been found not responsible by reason of mental disease or defect (insanity acquittees) and confined for inpatient psychiatric treatment the right to request a second trial-level proceeding—known as rehearing and review—to challenge the judicial determination authorizing confinement. We recently addressed the scope of the issues reviewable in a rehearing and review proceeding in Matter of Norman D. (3 NY3d 150 [2004]), holding that an insanity acquittee classified as a track one patient by virtue of a finding that he suffered from a dangerous mental disorder could not obtain review of that classification in a rehearing and review proceeding. In this case, the issue is whether an insanity acquit-tee found to suffer from a dangerous mental disorder and consequently placed in a secure facility can challenge that placement decision a second time on rehearing and review. Consistent with our holding in Norman D., we conclude that he cannot because the only issue that may be resolved in a rehearing and review proceeding is the fundamental liberty question of whether any confinement by the Office of Mental Health is warranted. Instead of seeking rehearing and review, a patient seeking to challenge secure placement should pursue an appeal.

The CPL 330.20 Scheme

Enacted in 1980, CPL 330.20 governs the procedure to be followed after a criminal court has entered a judgment that defendant is not responsible by reason of mental disease or defect. Soon after the entry of judgment in the criminal case, an initial commitment hearing is conducted to determine the degree of confinement and/or supervision necessary to treat the insanity acquittee’s condition and to safeguard both the acquittee and the public. As a result of this hearing, a defendant is placed in one of three procedural courses or “tracks.” The nature and extent of an insanity acquittee’s confinement or supervision is determined by the track designation corresponding to the patient’s mental condition.

“The applicable tracks are premised upon findings either (i) that the defendant has a ‘dangerous mental disorder’ [track one]; or (ii) that the defendant does not have a dangerous mental disorder but is ‘mentally ill’ [track two]; or (iii) that the defendant does not have a dangerous mental disorder and is not mentally ill [track three]” (Norman D., 3 NY3d at 153 n 1, quoting People v Stone, 73 NY2d 296, 300 [1989]).

Those patients who suffer from a “dangerous mental disorder” as that term is defined in CPL 330.20 (1) (c) are classified as track one patients and confined in secure facilities operated by the Office of Mental Health (OMH). Those who are “mentally ill” as that term is defined in CPL 330.20 (1) (d) are classified as track two patients and confined in nonsecure facilities under an order of conditions. Individuals who meet neither definition are classified as track three patients and released from OMH custody, usually with an order of conditions. When an insanity acquittee is assigned a track designation after the initial hearing, that track governs the applicable procedure until the individual is either released or recommitted to a more restrictive track. Once track status is determined, future confinement of the individual is determined through periodic “retention” hearings that may result in retention orders authorizing OMH to continue to hold the patient in a secure or nonsecure facility.

The retention, conditional release or discharge of a track one patient is governed entirely by CPL 330.20; further retention, conditional release or discharge of a track two or three patient is governed by both CPL 330.20 and the Mental Hygiene Law (see Matter of Jill ZZ., 83 NY2d 133 [1994] [track two patient remained under jurisdiction of CPL 330.20 for purposes of order of conditions but, in other respects, was subject to dictates of the Mental Hygiene Law]), unless the patient is later recommitted as a track one acquittee (found to have a “dangerous mental disorder”) and brought under the exclusive umbrella of CPL 330.20 (see e.g. Matter of Francis S., 87 NY2d 554 [1995] [recommitment proceeding involving patient who was initially a track two acquittee]). Thus, even a track one patient who improves sufficiently to be transferred to a nonsecure facility continues to be subject to the procedural restrictions in CPL 330.20 (see Matter of George L., 85 NY2d 295, 301, 302 n 2 [1995]).

“Track status designation, unique to insanity acquittees, is vitally important in determining the level of judicial and prosecutorial involvement in future decisions about an acquittee’s confinement, transfer and release” (Norman D., 3 NY3d at 154). Track one patients are subject to far more comprehensive supervision by the courts than track two and three patients. For example, under CPL 330.20, “a court order is required for any transfer to a nonsecure facility, off-ground furlough, release or discharge [involving a track one patient]; and the district attorney’s office continues to be notified of, with the option of participating in, further court proceedings involving the acquit-tee” (id. at 154-155). The same is not true of track two and three patients, whose treatment is primarily overseen by the Commissioner of OMH pursuant to the Mental Hygiene Law statutes and regulations pertaining to the care of involuntarily committed civil patients.

Against this backdrop of the applicable statutory and decisional law, we turn to the case before us.

Facts

In 1998, petitioner Jamie R. was charged with assault for kicking a deputy sheriff in the groin while in custody on a probation violation. While the charge was pending, he underwent a psychiatric screening to determine whether he was competent to assist with his defense and, for a period, was found to be incompetent based on a diagnosis of paranoid schizophrenia and antisocial personality disorder. Once deemed fit to proceed, he pleaded not responsible by reason of mental disease or defect under CPL 220.15, becoming an insanity acquittee subject to CPL 330.20 procedures.

At an initial commitment hearing in 1999, Dutchess County Court concluded that Jamie R. was suffering from a “mental illness” but did not have a “dangerous mental disorder” as those terms are defined in CPL 330.20. This determination resulted in his classification as a track two patient and placement at the Hudson River Psychiatric Center, a nonsecure facility operated by OMH. Jamie R. was twice discharged from that facility. After the first discharge, he briefly returned home to live with his mother but was readmitted to the facility six days after his release due to disruptive and threatening behavior that included a physical altercation with some neighbors and a threat to kill his mother. His second discharge involved placement in a community residence but he was evicted from that program for abusive and disruptive behavior, including throwing a chair at a female resident. After he was rehospitalized in October 2002, he allegedly assaulted another patient who was suffering from multiple sclerosis.

In addition to these incidents and during the same time frame, Jamie R. was arrested several times for incidents occurring when he was off facility premises. The first in this series of arrests occurred in March 2002 when, as a result of a motor vehicle stop, he was charged with driving while ability impaired and unlicensed operation of a motor vehicle. A few weeks later, while on a visit to his mother’s home, he was charged with assaulting his girlfriend. In the months following the assault arrest, he was charged with criminal contempt in the second degree and aggravated harassment in the second degree stemming from numerous harassing and threatening telephone calls to his girlfriend.

Jamie R.’s difficulties both inside and outside the nonsecure psychiatric treatment facility led the Commissioner of OMH to file a recommitment application in 2002 seeking to have Jamie R. reclassified as a track one patient and placed in a secure facility. OMH concluded that Jamie R.’s disruptive and threatening behavior required the higher level of security offered in such a facility, which is “staffed with personnel adequately trained in security methods and ... so equipped as to minimize the risk or danger of escapes” (CPL 330.20 [1] [b]). In order to obtain reclassification, the Commissioner was required to prove to the satisfaction of the court that Jamie R. suffered at that time from a “[d]angerous mental disorder,” meaning that he was mentally ill, requiring inpatient care and treatment, and “constitute [d] a physical danger to himself or others” (CPL 330.20 [1] [c]). This is the same showing that must be made to obtain track one classification in an initial commitment proceeding.

Dutchess County Supreme Court conducted a three-day hearing on the application, concluding that Jamie R. suffered from a dangerous mental disorder necessitating track one reclassification and retention in a secure facility. Jamie R. did not seek leave to appeal the recommitment order. Rather, in November 2003, he filed a petition for jury rehearing and review pursuant to CPL 330.20 (16) and Mental Hygiene Law § 9.35.

A second hearing, known as rehearing and review, was held before a jury in New York County Supreme Court. The Commissioner submitted relevant medical records and presented the testimony of two psychiatrists, who detailed Jamie R.’s psychiatric history covering more than 20 prior hospitalizations beginning when he was nine years old. They also discussed his criminal history, which included a prior felony assault conviction in addition to the assault offense giving rise to his status as an insanity acquittee, and more than 17 arrests for offenses such as assault, harassment and criminal possession of a weapon. These periodic brushes with the law began when Jamie R. was 16 years old and continued until his recommitment, notwithstanding that he spent considerable time in treatment facilities or under the outpatient supervision of psychiatric professionals.

Both psychiatrists opined that Jamie R. suffered from a dangerous mental disorder requiring inpatient treatment in a secure facility. Dr. Malavade diagnosed him as suffering from antisocial personality disorder marked by longstanding problems with impulsivity and aggression. He found that placement in a secure facility was warranted because Jamie R.’s extensive history of abusive and threatening behavior demonstrated that he was at a high risk for violence. He was particularly troubled by the fact that Jamie R. had limited-to-no insight concerning his mental illness and lacked remorse for past misconduct, suggesting an inability or unwillingness to control his pattern of abusive behavior.

Dr. Siegel similarly testified that Jamie R. suffered from antisocial personality disorder, impulse control disorder, and psychopathy, meaning that he did not empathize with others and did not appreciate that his abusive or threatening conduct was harmful to others. He noted that Jamie R. lacked remorse for his prior transgressions and did not take responsibility for them, but instead characterized himself as a victim, contending that his prior conflicts all occurred because he was being picked on or treated unfairly by the others involved. Dr. Siegel concluded that these factors, coupled with a failure to appreciate the nature of his illness, placed Jamie R. at a high risk for further violent and abusive behavior.

Jamie R. did not present any expert proof contradicting the psychological assessments of the Commissioner’s witnesses. But he did testify on his own behalf, asserting that he did not suffer from a mental illness and, in any event, did not require inpatient treatment. Jamie R.’s mother also testified, urging the jury to release her son from OMH custody and allow him to return home to live with her.

The jury found that Jamie R. suffered from a mental illness necessitating inpatient treatment but did not “currently constitute a physical danger to himself or others.” Treating the latter conclusion as an advisory verdict on the dangerous mental disorder issue, New York County Supreme Court nonetheless agreed with the jury’s conclusion and entered a judgment determining that Jamie R. was mentally ill requiring retention in OMH custody but did not suffer from a dangerous mental disorder necessitating placement in a secure facility.

In the first order, New York County Supreme Court did not disturb Dutchess County Supreme Court’s recommitment order but instead directed that Jamie R. be transferred to a nonsecure facility. Jamie R. then moved to resettle the order, arguing that the finding that he could be retained pursuant to the recommitment order was inconsistent with the finding that he must be transferred to a nonsecure facility because, by definition, a CPL 330.20 recommitment order reflects a determination that the acquittee suffers from a dangerous mental disorder requiring secure placement. New York County Supreme Court granted the motion and issued a resettled order denying the Commissioner’s recommitment application and further directing that Jamie R. be placed in a nonsecure facility.

On the Commissioner’s appeal, the Appellate Division reversed and reinstated Dutchess County Supreme Court’s recommitment order. The Court concluded that New York County Supreme Court had erred in revisiting the earlier determination that Jamie R. suffered from a dangerous mental disorder because such a determination may be challenged only in an appeal to the Appellate Division. Interpreting the language in CPL 330.20 (16) and Mental Hygiene Law § 9.35—the statutes authorizing rehearing and review—the Court held that such a proceeding allows a jury (or a court, if the patient waives a jury) to address whether a patient suffers from a mental illness requiring inpatient care, but does not authorize a jury to consider the dangerous mental disorder question and thereby decide what type of facility should treat the patient. As an alternative holding, the Court concluded that, even if the dangerous mental disorder determination had been reviewable on rehearing and review, New York County Supreme Court’s determination that Jamie R. did not suffer from a dangerous mental disorder was not supported by any fair interpretation of the evidence given the overwhelming proof that secure placement was warranted. We granted Jamie R. leave to appeal and we now affirm.

Analysis

On appeal to this Court, Jamie R. no longer asserts (as he did at the rehearing and review proceeding) that he is entitled to be released from OMH custody. Rather, he objects to his placement in a secure facility, contending that the dangerous mental disorder issue was properly submitted to the jury in the rehearing and review proceeding and that the jury finding that he does not suffer from a dangerous mental disorder should be given effect. In other words, Jamie R. seeks transfer to a nonsecure facility.

OMH counters that rehearing and review—a procedure borrowed from the civil commitment statutory scheme—is limited to giving the patient a second chance at the trial level to object to confinement in OMH custody, allowing relitigation of that issue before a jury. OMH argues that placement questions, including the proper facility in which to treat a patient, are beyond the scope of rehearing and review.

Under CPL 330.20, an insanity acquittee dissatisfied with a commitment, recommitment or retention determination has two avenues of redress: a permissive appeal under CPL 330.20 (21) or a rehearing and review proceeding under CPL 330.20 (16). CPL 330.20 (21) contains an election of remedies provision that requires the patient to choose between these two procedural routes.

Here, Jamie R. selected rehearing and review. CPL 330.20 (16) provides:

"[a]ny defendant who is in the custody of the commissioner pursuant to a commitment order, a retention order, or a recommitment order, if dissatisfied with such order, may, within thirty days after the making of such order, obtain a rehearing and review of the proceedings and of such order in accordance with the provisions of section 9.35 or 15.35 of the mental hygiene law.”

Mental Hygiene Law §§ 9.35 and 15.35 are part of the statutory scheme governing the involuntary commitment of civil patients, the former covering mentally ill patients and the latter addressing mentally retarded/developmentally disabled patients. In virtually identical terms, each statute grants civil patients a right to rehearing and review of certain civil confinement orders. When a mentally ill patient requests rehearing and review, Mental Hygiene Law § 9.35 directs that the court “shall cause a jury to be summoned and shall try the question of the mental illness and the need for retention of the patient so authorized to be retained.” The statute further allows a patient to “waive the trial of the fact by a jury and consent in writing to trial of such fact by the court” (Mental Hygiene Law § 9.35). Rehearing and review therefore provides a psychiatric patient a unique opportunity to relitigate certain confinement issues before a second trial-level court.

We interpreted these rehearing and review provisions in Matter of Norman D. (3 NY3d 150 [2004]), a case where an insanity acquittee sought to use the procedure to obtain review of an initial commitment order. By definition, whenever a court issues a commitment or recommitment order, it has found that the patient suffers from a dangerous mental disorder warranting placement in a secure facility and classification or reclassification as a track one acquittee (see CPL 330.20 [1] [f]; [6], [14]). That was the case with Norman D.—after a commitment proceeding, he was found to suffer from a dangerous mental disorder which carried with it track one classification and placement in a secure facility.

By the time Norman D.’s rehearing and review proceeding was conducted, his condition had improved to the extent that he no longer required treatment in a secure facility and OMH agreed to transfer him to a nonsecure facility. Seeking to challenge his continuing status as a track one patient, however, Norman D. persisted with the request for rehearing and review of the commitment order. Just as Jamie R. contends in this case, Norman D. argued that the rehearing and review statutes authorize de novo review of every aspect of the order challenged. Since track one classification emanates by operation of law from a commitment determination, Norman D. claimed that track one classification could be revisited by the jury or court on rehearing and review.

This Court rejected that argument, noting that “[r]ehearing and review is to be conducted in accordance with” Mental Hygiene Law § 9.35 (for mentally ill patients), a statute that restricts the issue addressed in such a proceeding to the factual “question of the mental [illness] and the need for retention of the [patient]” (Norman D., 3 NY3d at 155, quoting Mental Hygiene Law § 9.35). This rehearing and review provision makes no reference to the patient being a “physical danger to himself or others” and therefore does not encompass the dangerous mental disorder determination that justifies track one classification and placement in a secure facility.

Thus, we held in Norman D. that a patient can challenge a track one classification on appeal but not in a rehearing and review proceeding. As to the latter, we clarified that a rehearing and review is a “de novo evidentiary proceeding, with the findings a snapshot of the acquittee’s condition at that moment” (id.). It provides an avenue for the patient to challenge “the conditions of supervision originally imposed,” thereby allowing review of whether the insanity acquittee requires inpatient treatment or is able to be safely released in the community and supervised as an outpatient under an order of conditions (id. at 155-156). Simply put, rehearing and review allows a patient to place before the jury the basic liberty issue of whether he or she should be confined in OMH custody.

Jamie R attempts to avoid the impact of our decision in Norman D. by drawing a distinction between track one classification and the underlying dangerous mental disorder determination authorizing placement in a secure facility. Recognizing that Norman D. precludes rehearing and review of the former, he nonetheless maintains that Mental Hygiene Law § 9.35 authorizes reconsideration of the latter. In addition to the fact that dangerous mental disorder review falls outside the defining language in section 9.35, this argument must be rejected based on other aspects of our analysis in Norman D.

Our conclusion that review of Norman D.’s track one classification was not within the purview of Mental Hygiene Law § 9.35 was premised, in part, on the observation that track status involves “a determination that is unique to individuals who have committed criminal acts and inapplicable to involuntary civil patients” (3 NY3d at 157). As a result, its inclusion in the civil rehearing and review procedure incorporated by reference in CPL 330.20 (16) could not have been contemplated by the Legislature. Since track one classification turns entirely on a dangerous mental disorder determination, and dangerous mental disorder is also a concept unique to criminal acquittees, we fail to see how our decision in Norman D. permits an analytical distinction between the two in the context of rehearing and review. If the dangerous mental disorder determination is not reviewable on rehearing and review for purposes of revisiting track status as we held in Norman D., it follows that it is not reviewable on rehearing and review for purposes of revisiting the secure versus nonsecure placement question.

The logic of this conclusion is apparent, particularly when viewed in the broader context of CPL 330.20. Although the statute authorizes courts supervising insanity acquittees to issue many types of orders, such as transfer orders, furlough orders and orders of conditions, the right to rehearing and review was extended to only three: commitment, recommitment and retention orders (see CPL 330.20 [16]). The other orders excluded from rehearing and review relate not to the liberty question of whether inpatient treatment is warranted but to specific aspects of patient treatment, suggesting that the Legislature did not contemplate a jury (or a court, if a jury is waived) to revisit those types of issues on rehearing and review.

In contrast, the three types of orders for which rehearing and review is authorized all address the fundamental question of whether a patient can be confined in OMH custody. In order to obtain a retention order, OMH must establish at a minimum that an insanity acquittee is “mentally ill” (which, by definition, means the patient suffers from a mental illness and needs inpatient treatment), but a retention order can be obtained without a showing that the patient suffers from a dangerous mental disorder (see CPL 330.20 [8]). To obtain a commitment or recommitment order, OMH must prove not only the threshold question of mental illness and the need for retention but also that the insanity acquittee suffers from a dangerous mental disorder under the heightened dangerousness standard.

Thus, the element common to all retention, commitment and recommitment orders is the basic liberty issue of whether a patient should be held in OMH custody—the very issue identified in Mental Hygiene Law § 9.35 as the subject of rehearing and review. By extending rehearing and review to these types of CPL 330.20 orders but not others, the Legislature clearly intended to provide insanity acquittees a second chance to obtain release from OMH custody in the event of an erroneous deprivation of liberty, while avoiding duplicate litigation in the form of de novo review of less fundamental placement/treatment decisions. This result is consistent with the Legislature’s broader intent when it enacted the current version of CPL 330.20 “to strike a balance between public safety and the individual rights of the acquittee” (Norman D., 3 NY3d at 154).

As this Court concluded in Mental Hygiene Legal Servs. v Ford (92 NY2d 500, 508 [1998], quoting Savastano v Nurnberg, 77 NY2d 300, 308 [1990]), a case in which an involuntarily committed civil patient unsuccessfully challenged the constitutional validity of OMH’s administrative transfer procedure, the decision to treat a patient in a secure as opposed to a nonsecure facility “reflects primarily a medical judgment about the kind of facility that would best serve the patient’s therapeutic needs.” This is particularly true “in the case of a violent mentally ill patient, [since] security concerns are inextricably linked to considerations of professional medical treatment” (id. at 509). Such treatment concerns fall outside the ambit of the limited question of “mental illness and the need for retention” at issue in a rehearing and review proceeding under Mental Hygiene Law § 9.35.

At its core, Jamie R.’s claim is that he should be able to challenge on rehearing and review Dutchess County Supreme Court’s decision to authorize his transfer from a nonsecure to a secure facility. But involuntarily committed civil patients transferred from a nonsecure to a secure facility under OMH’s administrative transfer procedure (see Mental Hygiene Law § 29.11 [a]; 14 NYCRR 57.2) are not entitled to rehearing and review of the propriety of that placement determination. We explained in Norman D. that, by referencing Mental Hygiene Law § 9.35, the Legislature intended to provide insanity acquit-tees “rehearing and review rights comparable to [those of] civilly committed patients” (Norman D., 3 NY3d at 156). If we were to recognize a right to rehearing and review of what is essentially a transfer decision, we would be granting to insanity acquittees a broader procedural right not generally available to civil patients. We see no evidence in this statutory scheme that such a consequence was intended by the Legislature.

Finally, we note that our conclusion does not shield the dangerous mental disorder determination from a second level of judicial scrutiny since the issue is reviewable in an appeal to the Appellate Division under CPL 330.20 (16). Moreover, even in the absence of an appeal, insanity acquittees are entitled to frequent judicial review of placement decisions emanating from commitment or recommitment orders because they expire after six months (see CPL 330.20 [1] [f]), at which point the propriety of confinement is reviewed at periodic retention hearings where OMH must prove to the satisfaction of the court that the patient currently suffers from a dangerous mental disorder warranting continued placement in a secure facility (see CPL 330.20 [8]).

Accordingly, the order of the Appellate Division should be affirmed, without costs.

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

Order affirmed, without costs.

      . In its present form, CPL 330.20 was largely the result of a study conducted by the Law Revision Commission entitled “The Defense of Insanity in New York State” (1980 Report of NY Law Rev Commn, reprinted in 1981 McKinney’s Session Laws of NY, at 2251-2293), which advocated reform of the system for handling individuals found not guilty by reason of insanity “to ensure public safety and to safeguard the rights of the mentally disabled offender” (id. at 2251). In 1980, the prior version of CPL 330.20 was repealed and the current statute now substantially follows the recommendations of the Law Revision Commission (see L 1980, ch 548, § 11).

      . In the criminal proceeding, the defense of not responsible by reason of mental disease or defect is an affirmative defense, meaning that defendant raises the issue and hears the burden of proof under the preponderance of the evidence standard (see Penal Law § 25.00 [2]; § 40.15). By securing a judgment of not responsible, defendant avoids criminal penalties and, instead, becomes subject to the CPL 330.20 scheme. This places insanity acquittees in a significantly different posture than involuntarily committed civil patients. As the Law Revision Commission drafters of CPL 330.20 explained, “rational differences between procedures for commitment and release applicable to defendants found not responsible and persons involuntarily committed under the Mental Hygiene Law are justifiable ... on the ground that an acquitted defendant, himself, has asserted that his criminal conduct was the result of a mental disease or defect” (1980 Report at 2264). In this regard, “equal protection principles do not prevent different treatment of insanity acquittees from other persons subject to civil commitment because acquittees may validly be regarded as a separate class” (see Matter of Francis S., 87 NY2d 554, 563 [1995]; Matter of George L., 85 NY2d 295, 305 n 3 [1995]; see generally, People v Escobar, 61 NY2d 431, 440 [1984] [holding that the dictum in Matter of Torsney (47 NY2d 667 [1979]) suggesting that insanity acquittees must be afforded the same rights as civil patients is “no longer viable”]; Jones v United States, 463 US 354 [1983]).

      . The “track” nomenclature does not appear in CPL 330.20 but is derived from the Law Revision Commission report that accompanied the proposed legislation, which states that “[t]he post-verdict scheme of proposed CPL 330.20 provides for three alternative ‘tracks’ based upon the court’s determination of the defendant’s mental condition at the time of [the initial] hearing” (1980 Report at 2265).

      . The “dangerous mental disorder” finding that justifies track one classification and placement in a secure facility is defined in CPL 330.20 (1) (c): “[d]angerous mental disorder” means: “(i) that a defendant currently suffers from a ‘mental illness’ as that term is defined in subdivision twenty of section 1.03 of the mental hygiene law, and (ii) that because of such condition he currently constitutes a physical danger to himself or others.” The term “mental illness” as defined in Mental Hygiene Law § 1.03 (20) “means an affliction with a mental disease or mental condition which is manifested by a disorder or disturbance in behavior, feeling, thinking, or judgment to such an extent that the person afflicted requires care, treatment and rehabilitation.”

      . The term “mentally ill,” the finding that justifies placement in a nonsecure facility, is defined in CPL 330.20 (1) (d) and “means that a defendant currently suffers from a mental illness for which care and treatment as a patient, in the in-patient services of a psychiatric center under the jurisdiction of [OMH], is essential to such defendant’s welfare and that his judgment is so impaired that he is unable to understand the need for such care and treatment.”

      . Jamie R. was serving a five-year sentence of probation as a result of a 1997 conviction for assault in the second degree, a class D felony. It appears from the record that this conviction also involved an assault on a police officer. He was in police custody for violations of probation, including being discharged from his psychiatric treatment program due to disruptive behavior and a failure to attend programs or to comply with treatment orders, threatening remarks to another person, operating a vehicle without a license and consuming alcohol in violation of his conditions of probation.

      . The recommitment application was filed in April 2002 but the recommitment proceeding was not conducted until October 2003. During that period, Jamie R. was given another chance to remain in a nonsecure facility by OMH obtaining a six-month civil retention order pursuant to Mental Hygiene Law § 9.33 (although other aspects of treatment of track two patients remain under the purview of CPL 330.20, retention of track two patients is governed by the Mental Hygiene Law provisions addressing involuntary commitment of civil patients). Jamie R. was confined under that order at Hudson River Psychiatric Center, a nonsecure facility. After the six-month period elapsed, OMH pursued the recommitment application for placement in a secure facility.

      . It is undisputed that an insanity acquittee can obtain review of the dangerous mental disorder determination underlying track one classification and placement in a secure facility in an appeal from a commitment, recommitment or retention order.

      . In fact, although Jamie R. seeks reinstatement of New York County Supreme Court’s resettled order, he fails to acknowledge that the court made no such distinction (which is understandable given that these proceedings preceded our decision in Norman D.). By denying OMH’s recommitment application, the court effectively vacated Dutchess County Supreme Court’s recommitment order and overruled Jamie R.’s track one reclassification. This was the very result we held to be beyond the scope of rehearing and review in Norman D.

      . It makes no difference that New York County Supreme Court only submitted the issue to the jury for purposes of obtaining an advisory verdict, reserving to itself the ultimate decision on dangerous mental disorder, a procedure suggested in several appellate cases (see e.g. Matter of Watkins R. v Rosenwasser, 4 AD3d 431 [2d Dept 2004]; Matter of James M. v Consilvio, 6 AD3d 153 [1st Dept 2004]). In fact, both parties in this case agree that the advisory verdict approach is not consistent with the statutory scheme, framing the issue as whether dangerous mental disorder is reviewable by either a judge or a jury on rehearing and review of a recommitment order. That question can be answered only by reference to the pertinent statutory language— which, as we concluded in Norman D., appears in Mental Hygiene Law § 9.35. Whether decided by a jury or a judge, that provision limits the issues that may be addressed on rehearing and review to mental illness and the need for inpatient treatment. Moreover, under section 9.35, the decision whether to have a jury resolve the pertinent issues is vested in the patient, not the court. Here, Jamie R.’s counsel did not waive his right to jury review. As such, even if the dangerous mental disorder finding had been reviewable on rehearing and review, there was no statutory basis for New York County Supreme Court to treat the verdict on that issue as advisory rather than binding. Therefore, the cases giving an advisory role to the jury should not be followed.

      . A “[fjurlough order” directs the Commissioner of OMH “to allow a defendant in confinement pursuant to a commitment order, recommitment order or retention order to temporarily leave the facility for a period not exceeding fourteen days, either with or without the constant supervision of one or more employees of the facility” (CPL 330.20 [1] [k]). A “[flransfer order” authorizes transfer of a defendant from a secure to a nonsecure facility (CPL 330.20 [1] [/]). An “[o]rder of conditions” is “an order directing a defendant to comply with this prescribed treatment plan, or any other condition which the court determines to be reasonably necessary or appropriate, and, in addition, where a defendant is in custody of the commissioner, not to leave the facility without authorization” (CPL 330.20 [1] [o]). Where appropriate, such an order can also require a defendant to refrain from harassing any victims or witnesses of the underlying criminal offense, or stay away from their homes, schools or businesses (id.).

      . As we explained in Matter of David B. (97 NY2d 267 [2002]), this threshold standard encompasses a showing that the patient is dangerous, although the concept of danger necessary to justify confinement in a nonsecure facility is not equivalent to the heightened dangerousness finding—dangerous mental disorder—that justifies placement in a secure facility. With respect to the “constitutionally required minimum level of dangerousness to oneself or others that must be shown before an insanity acquittee may be retained in a non-secure facility” (id. at 276), “dangerousness is not coterminous with violence” (id. at 278) but is part of the finding that inpatient care is essential to the patient’s physical or psychological well-being.


source: Caselaw Access Project

license: Public Domain

text:
    [ 844 NE2d 753, 811 NYS2d 299]
    Qurrise C. Harris, Appellant, v Niagara Falls Board of Education et al., Respondents.
    Argued January 4, 2006;
    decided February 14, 2006

      POINTS OF COUNSEL

      Nicholas, Perot, Smith, Bernhardt & Zosh, PC., Akron (Craig H. Bernhardt of counsel), for appellant.
    I. This lawsuit was properly commenced. (Matter of Fry v Village of Tarrytown, 89 NY2d 714; Fallarino v Board ofEduc. of Long Beach City School Dish, 160 Misc 2d 682; Matter of Gershel v Porr, 89 NY2d 327; Nikolaidis v Makita Corp., 242 AD2d 322; Forsythe-Kane v Town of Yorktown, 228 AD2d 548; Tufano v Tufano, 220 AD2d 407; Cellular Tel. Co. v Village of Tarrytown, 209 AD2d 57; Chira v Global Med. Review, 160 Misc 2d 368.) II. Under the present circumstances, failure to pay a fee for an index number is not so grievous a defect as to mandate dismissal where the summons and complaint were filed and date stamped by the County Clerk’s Office. (Rybka v New York City Health & Hosps. Corp., 263 AD2d 403; Ruiz v New York City Hous. Auth., 216 AD2d 258; Matter of Gershel v Porr, 89 NY2d 327; Otero v New York City Hous. Auth., 94 NY2d 800.)

      Sliwa & Lane, Buffalo (Stanley J. Sliwa and Barbara A. Sherk of counsel), for respondents.
    I. The Appellate Division, Fourth Department, correctly determined that the action was not timely commenced. (Matter of Fry v Village of Tarrytown, 89 NY2d 714; Matter of Mendon Ponds Neighborhood Assn. v Dehm, 98 NY2d 745; Matter of Gershel v Porr, 89 NY2d 327; Otero v New York City Hous. Auth., 94 NY2d 800; Brill v City of New York, 2 NY3d 648; Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725; Ruiz v New York City Hous. Auth., 216 AD2d 258; Rybka v New York City Health & Hosps. Corp., 263 AD2d 403; Matter of Spodek v New York State Commr. of Taxation & Fin., 85 NY2d 760.) II. The statute of limitations expired and Qurrise Harris’ failure to timely commence does not require the showing of prejudice. (Railroad Telegraphers v Railway Express Agency, Inc., 321 US 342; Perez v Paramount Communications, 92 NY2d 749; Blanco v American Tel. & Tel. Co., 90 NY2d 757.)
   OPINION OF THE COURT

Graffeo, J.

Plaintiff did not comply with the commencement-by-filing system when he commenced this personal injury action using an index number from a prior special proceeding. Because defendants timely objected to plaintiffs failure to purchase a new index number, the Appellate Division properly dismissed the complaint.

On May 2, 2002, plaintiff Qurrise Harris allegedly sustained injuries when a vehicle driven by defendant Carmen Granto, Jr. and owned by either defendant Niagara Falls Board of Education or defendant Niagara Falls City School District struck him while he was riding his bicycle. Since plaintiff did not serve a notice of claim on the school board or school district within 90 days of the accident (see General Municipal Law §§ 50-e, 50-i), plaintiff commenced a special proceeding in April 2003 requesting leave to serve a late notice of claim (see General Municipal Law § 50-e [5]). In connection with such application, plaintiffs counsel paid a filing fee to obtain an index number. In June 2003, Supreme Court granted plaintiffs application to the extent that plaintiff was permitted to file and serve a notice of claim on the City of Niagara Falls.

Plaintiff thereafter retained different counsel, who brought a second proceeding for leave to serve a late notice of claim against the school board and school district. Supreme Court granted plaintiffs application, which bore the same index number as the earlier application, and required plaintiff to serve the notice of claim and commence the personal injury action by July 30, 2003. Before this deadline, plaintiff filed and served the notice of claim. He then immediately initiated this action against the school board, the school district and the driver of the vehicle by filing a summons and complaint with the Niagara County Clerk’s Office. Plaintiff, however, used the same index number as assigned to the previous late notice of claim applications.

Soon after, defendants moved to dismiss the complaint pursuant to CPLR 3211 as time-barred, claiming that plaintiffs failure to purchase a new index number resulted in the action not having been properly commenced prior to expiration of the statute of limitations. Plaintiff opposed the motion and alternatively sought leave to purchase a new index number. Relying on Otero v New York City Hous. Auth. (94 NY2d 800 [1999]), Supreme Court denied defendants’ motion. The Appellate Division reversed and dismissed the complaint, holding that Supreme Court lacked subject matter jurisdiction because the action was not properly commenced in the absence of a new index number. We granted plaintiff leave to appeal and now affirm, but for a different reason.

Pursuant to the commencement-by-filing system, a party initiates an action or special proceeding by paying the necessary fee, obtaining an index number and filing the initiatory papers—a summons and complaint or a summons with notice in an action, or a petition in a special proceeding—with the clerk of the court (see CPLR 304, 306-a; see also Matter of Mendon Ponds Neighborhood Assn. v Dehm, 98 NY2d 745, 747 [2002]). Under the procedure mandated by the CPLR, “service of process without first paying the filing fee and filing the initiatory papers is a nullity, the action or proceeding never having been properly commenced” (Matter of Gershel v Porr, 89 NY2d 327, 330 [1996]).

In Gershel, the petitioner commenced a CPLR article 78 proceeding by paying the filing fee, securing an index number and filing the initiatory papers. In response to the respondent’s motion to dismiss for improper service, the petitioner voluntarily withdrew the order to show cause and decided to begin anew. The petitioner then served the petition on respondent, together with a notice of petition, but did not file the new set of initiatory papers with the clerk or pay a filing fee for a new index number. We concluded that the respondent was entitled to dismissal of the proceeding because the petitioner was required to comply with each of the statutory filing requirements once he decided to bring a new proceeding. Thus, “the new proceeding was never properly commenced and the attempted service was a nullity” (id. at 332).

We made clear in Matter of Fry v Village of Tarrytown (89 NY2d 714 [1997]) that a defect in compliance with the commencement-by-filing system does not deprive a court of subject matter jurisdiction and, accordingly, is waived absent a timely objection by the responding party. In Fry, the petitioner did not fulfill the filing requirements when, after paying the filing fee, he filed an unexecuted order to show cause and petition with the clerk of the court. After examining the language and purpose of the filing provisions, we determined that the trial court had improperly dismissed the proceeding sua sponte because the respondents had waived any objection to the defective filing by appearing in the proceeding and litigating its merits without raising an objection. Significantly, we reaffirmed Gershel, stating that “[s]trict compliance with CPLR 304 and the filing system is mandatory, and the extremely serious result of noncompliance, so long as an objection is timely raised by an appearing party, is outright dismissal of the proceeding” (id. at 723).

Gershel and Fry strike a balance between the competing interests of opposing parties in the commencement process. As Professor Siegel has observed, “[p]laintiffs and petitioners are deterred from casualness by being put on notice that the technical requirements will be strictly construed, while defendants and respondents are warned that if they want to capitalize on technicalities they must mind their own procedures” (Siegel, NY Prac § 63, at 94 [4th ed]). A court should dismiss an action or proceeding only where the plaintiff or petitioner does not fulfill all the filing requirements and the defendant or respondent timely objects.

Here, after plaintiff successfully applied for leave to serve a late notice of claim in a separate special proceeding, he was required to comply with the filing requirements in commencing this personal injury action by paying a filing fee, obtaining a new index number, and filing the summons and complaint. Instead, plaintiff did not pay the fee and used the index number from the previously concluded special proceeding. Having failed to comply with the requirements of CPLR 304 and 306-a, plaintiff s action was subject to dismissal. Contrary to the Appellate Division’s determination that Supreme Court lacked subject matter jurisdiction, plaintiffs failure to pay the filing fee is a commencement infirmity that is waivable. The Appellate Division, however, correctly dismissed the complaint inasmuch as defendants timely objected to plaintiffs defective filing in their pre-answer motion to dismiss (see Fry, 89 NY2d at 723).

Otero does not dictate a contrary result. In that case, the plaintiff similarly failed to comply with the filing requirements by commencing an action in 1994 using an index number from a prior late notice of claim application. We affirmed the denial of the motion to dismiss where, among other things, the defendant did not object to the plaintiffs filing deficiency until 1997, after the plaintiff had purchased a new index number at the County Clerk’s request (94 NY2d at 801). Here, in contrast to Otero, defendants timely raised the proper objection.

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

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt and R.S. Smith concur; Judge Read taking no part.

Order affirmed, with costs.


author: Ciparick, J.

text:
    [ 844 NE2d 743, 811 NYS2d 289]
    State of New York, Respondent, v Patricia II., Appellant.
    Argued January 10, 2006;
    decided February 9, 2006

      POINTS OF COUNSEL

      Mental Hygiene Legal Service, Third Judicial Department, Albany (Sheila E. Shea of counsel), for appellant.
    I. Appellant’s ability to pay the cost of her care is a condition precedent to the State of New York’s Mental Hygiene Law article 43 action to recover care and treatment costs. (State of New York v Ross, 109 AD2d 937; Hammelburger v Foursome Inn Corp., 54 NY2d 580; Brown v Stone, 66 F Supp 2d 412; Matter of Seelen, 87 Misc 2d 360; Matter of Kesselbrenner v Anonymous, 33 NY2d 161; Matter of Girard v City of Glens Falls, 173 AD2d 113, 79 NY2d 757; Mental Health Info. Servs. v Schenectady County Dept. of Social Servs., 128 Misc 2d 282; State of New York v Stavola, 135 AD2d 1038.) II. Assets which are exempt from levy or execution do not satisfy the Mental Hygiene Law article 43 condition precedent. (Matter of Gallet, 196 Misc 2d 303; Matter of Jacob, 92 Misc 2d 1027.)

      Eliot Spitzer, Attorney General, Albany (Michelle Aronowitz, Julie S. Mereson, Caitlin J. Halligan and Daniel Smirlock of counsel), for respondent.
    I. Defendant’s ability to pay the costs of her care and treatment is not a condition precedent to the State of New York’s right to maintain an action to recover them pursuant to Mental Hygiene Law article 43. (Langevin v State of New York, 196 Misc 2d 809; Matter of Seelen, 87 Misc 2d 360; State of New York v Ross, 109 AD2d 937; Matter of Osadchey, 53 AD2d 960; Matter of Colon, 83 Misc 2d 344; Brown v Stone, 66 F Supp 2d 412; Nicholson v Scoppetta, 344 F3d 154.) II. It furthers the statutory scheme for the State of New York to reduce its claim to judgment before the statute of limitations expires. (Matter of Piper, 145 AD2d 97; Matter of Halbauer, 34 Misc 2d 458, 18 AD2d 966; Matter of Gallet, 196 Misc 2d 303; Matter of Jacob, 92 Misc 2d 1027; Matter of Granwell, 20 NY2d 91.)
   OPINION OF THE COURT

Ciparick, J.

The issue presented by this appeal is whether a former psychiatric patient’s ability to pay the costs of her care and treatment incurred at a state-operated psychiatric facility is a condition precedent to the State’s right to maintain an action to recover those costs under article 43 of the Mental Hygiene Law. We hold that it is not.

Defendant was a patient at the state-operated South Beach Psychiatric Center from January 2, 1997 through March 11, 1997. Her care and treatment during this period were primarily covered by Medicare, but a balance of $12,160 remained unpaid. After defendant’s release, the State discovered that, along with guaranteed income sources from Social Security and a private pension, defendant maintained an individual retirement account (IRA) with Emigrant Savings Bank valued in excess of $18,000 as of July 1, 2001. On May 9, 2002, the State commenced this Mental Hygiene Law article 43 action to recover the balance due for the cost of defendant’s care and treatment.

Defendant, through her guardian ad litem, admitted that she owed the money claimed but moved to dismiss the complaint for failure to state a cause of action, on the ground that the complaint did not allege that defendant had the ability to pay. The State cross-moved for summary judgment asserting that Mental Hygiene Law article 43 does not require the ability to pay as a condition precedent to an action to recover the cost of services rendered. Additionally, the State maintained that the defendant was not indigent and had the ability to pay.

Supreme Court granted defendant’s motion to dismiss for failure to state a cause of action, reasoning that although Mental Hygiene Law article 43 does not expressly require ability to pay, state courts have, nonetheless, required the State to prove ability to pay as a condition precedent to liability. Additionally, Supreme Court reasoned that since an IRA account is exempt from execution under CPLR 5205 (c), it cannot be deemed to satisfy the condition precedent. The Appellate Division reversed and granted summary judgment to the State, holding that the clear and unequivocal language of article 43 does not condition an action to recover costs on a patient’s ability to pay. We granted defendant leave to appeal and now affirm.

“It is fundamental that a court, in interpreting a statute, should attempt to effectuate the intent of the Legislature” (Patrolmen’s Benevolent Assn. of City of N.Y. v City of New York, 41 NY2d 205, 208 [1976]). The starting point is always to look to the language itself and “[w]here the language of a statute is clear and unambiguous, courts must give effect to its plain meaning” (Matter of Tall Trees Constr. Corp. v Zoning Bd. of Appeals of Town of Huntington, 97 NY2d 86, 91 [2001]).

The plain language of article 43 provides that an indigent patient need not pay for services at the time they are rendered, but remains liable for them (see Mental Hygiene Law § 43.01 [a]; § 43.03 [a]). The State may reduce or waive fees in cases of inability to pay, but acceptance of less than the full fee or the waiver of a fee or any part thereof shall not be construed to release a patient from liability for the entire cost of the care and treatment (see Mental Hygiene Law § 43.03 [b]). Also, in order to facilitate recovery, the State may file a lien to recover amounts due (see Mental Hygiene Law § 43.07 [b]). Furthermore, it is uncontested that article 43 grants the State the authority to recover the cost of defendant’s care and treatment through an action commenced within six years from when the fees become due (see Mental Hygiene Law § 43.07 [c]).

Defendant maintains that article 43’s legislative history and legislative intent require a showing of ability to pay. Before the Mental Hygiene Law was recodified in 1972, it differentiated between the requirements for contribution for services currently being rendered and recovery for services rendered. The pre-1972 Mental Hygiene Law allowed the State to seek contribution from certain designated third parties if they had “sufficient ability” to pay (see L 1966, ch 256, § 54; former Mental Hygiene Law § 24 [2]). Furthermore, the pre-1972 Mental Hygiene Law allowed the State to recover the cost of services rendered only from those former patients who subsequently acquired assets (see L 1966, ch 256, § 54; former Mental Hygiene Law § 24 [6]). Defendant asserts that since the pre-1972 Mental Hygiene Law conditioned recovery for services rendered on the existence of a patient’s assets, the present Mental Hygiene Law must be likewise interpreted to require the patient’s ability to pay as a condition precedent to liability.

Defendant supports this contention with a legislative memorandum from 1972 stating that the present Mental Hygiene Law article 43 “is substantially similar to existing [pre-1972] provisions” (Mem of Joint Legis Comm on Mental & Physical Handicap, 1972 McKinney’s Session Laws of NY, at 3277, 3289). Defendant infers from this statement that the Legislature did not intend to change the requirement that the ability to pay be a condition precedent to commencing a recovery action.

In 1972, upon the merging of contribution and recovery in article 43, the Legislature removed the language conditioning liability on ability to pay. Indeed, the Legislature has specifically imposed such conditions precedent to recovery actions in other statutes and could have done so here if that were its intent. It clearly was not. Under article 43, a former patient remains liable for the cost of care and treatment regardless of ability to pay. The Legislature sought to confer upon the State the authority to recover costs for care and treatment from former patients, where possible.

The State’s ability to obtain a judgment against defendant, regardless of defendant’s present financial status, promotes the statutory scheme of the Mental Hygiene Law. Under defendant’s interpretation, the State would have only six years from the date of the patient’s release to obtain a judgment, and only if the patient had the ability to pay (see Mental Hygiene Law § 43.07). However, since a patient remains liable for the full amount of unpaid fees for care and treatment, the State can initiate suit regardless of the patient’s current ability to pay, and thereby obtain a judgment that is subject to collection for 20 years (see CPLR 211 [b]). Thus, summary judgment was properly granted to the State. Having so found, it is unnecessary to address defendant’s remaining contentions.

Accordingly, the order of the Appellate Division should be affirmed, without costs.

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

Order affirmed, without costs.

       It did so when providing, for example, for the recovery of public assistance payments from responsible relatives in Social Services Law § 101 (1) only “if of sufficient ability” and in an action for the recovery of birth expenses from unwed fathers, authorized in Social Services Law § 366 (3) (a), only if the father has “sufficient income” (Matter of Steuben County Dept. of Social Servs. v Deats, 76 NY2d 451, 459 [1990]).


author: ClPARICK, J.

text:
    [ 844 NE2d 296, 810 NYS2d 749]
    The People of the State of New York, Appellant, v Harry J.F. Bloomfield, Respondent. The People of the State of New York, Appellant, v Stuart Creggy, Respondent.
    Argued January 5, 2006;
    decided February 14, 2006

      POINTS OF COUNSEL

      Robert M. Morgenthau, District Attorney, New York City (Gina Mignola and Amy jane Rettew of counsel), for appellant.
    Contrary to the view of the Appellate Division, the evidence in this case was legally sufficient to establish that the fraudulent Charles Wilson cover-up letters were business records kept and maintained by the Westfield conspirators’ shell companies. (People v Rossey, 89 NY2d 970; People v Cabey, 85 NY2d 417; People v Williams, 84 NY2d 925; People v Wong, 81 NY2d 600; People v Santi, 3 NY3d 234; People v Taylor, 94 NY2d 910; People v Ficarrota, 91 NY2d 244; People v Chico, 90 NY2d 585; People v Bleakley, 69 NY2d 490; People v Barnes, 50 NY2d 375.)

      Stillman & Friedman, P.C., New York City (Nathaniel Z. Marmur and Karin Klapper Orenstein of counsel), for Harry J.F. Bloomfield, respondent.
    The Appellate Division correctly determined that the 16 Charles Wilson letters were not “[b]usiness record[s]” under Penal Law § 175.00 (2) because they were not “kept or maintained” by the respective companies. (People v Brown, 140 App Div 591; People ex rel. Isaacson v Fallon, 202 NY 456; People v Bel Air Equip. Corp., 46 AD2d 773, 39 NY2d 48; People v Papatonis, 243 AD2d 898; People v Schwartz, 21 AD3d 304; Matter of Sharpton v Turner, 170 AD2d 43; People v Roman, 149 Misc 2d 971; People v Davis, 49 NY2d 910; United States v White, 322 US 694; People v DeLuca, 178 AD2d 426.)

      Duane Morris, LLP, Washington, D.C. (Joseph J. Aronica and Laurice Chen of counsel), for Stuart Creggy, respondent.
    The Appellate Division was correct in its reversal of the convictions below as any straightforward application of Penal Law § 175.00 clearly indicates that the 16 Charles Wilson letters found in Andrew Warren’s “working notes” folder were not “kept or maintained by the 16 companies and did not meet the legal definition of “[bjusiness record[s].” (People v Kennedy, 68 NY2d 569; People v Davis, 49 NY2d 910; People v Agha Hasan Abedi, 156 Misc 2d 904; People v Linardos, 104 Misc 2d 56; People v DeLuca, 178 AD2d 426; People v Bel Air Equip. Corp., 46 AD2d 773, 39 NY2d 48.)
   OPINION OF THE COURT

ClPARICK, J.

The issue presented by this appeal is whether there is sufficient evidence that fraudulent letters kept in the files of an enterprise’s legal counsel, rather than at the company’s headquarters, were “[b]usiness record[s]” as defined by Penal Law § 175.00 (2). We conclude that the location where a document is maintained is merely a factor, not determinative, of its status as a business record under the statute, and that the People presented legally sufficient evidence to support the conclusion reached by the trier of fact.

In 1992, three brokers—the Westfield partners—engaged in fraudulent securities transactions. The scheme involved the sale of unregistered stock pursuant to Regulation S of the Securities Act of 1933. Regulation S securities generally sell at discounted prices since they may only be held by non-United States citizens who do not reside within the country. The Westfield partners, all United States citizens residing in the United States, devised a plan to buy and sell Regulation S securities by acting as foreigners. To facilitate these transactions, the Westfield partners contacted Andrew Warren, a London solicitor at the firm Talbot Creggy, located at 38 Queen Anne Street, to set up offshore shell corporations to appear as if they were owned by non-United States persons. Warren, at the request of the West-field partners, established approximately 20 shell corporations and hired a management company, Channel Islands & International Law Trust Company, Ltd. (Management Company), located on the Isle of Jersey. Warren advised the Westfield partners that he would relay all stock transfer instructions to the Management Company and originally used the 38 Queen Anne Street address as the address for each of the shell corporations.

In 1994, after the Securities and Exchange Commission (SEC) had commenced an investigation into the Regulation S transactions, Warren sought advice on how to handle the situation from his senior partner, Stuart Creggy. In exchange for $23,000, Creggy offered to have a Liberian diplomat pose as the owner of the shell companies. Creggy, in turn contacted Harry J.E Bloomfield, a Canadian lawyer, to retain the Liberian diplomat, Charles Wilson.

Wilson served as First Secretary and Consul at the Liberian Embassy in Ottawa. Due to the civil war in Liberia, Wilson’s income was cut off. Communication with Liberia was also largely disrupted and the embassy was forced to close. Wilson, who was ill, remained in Canada and sought refugee status along with his wife and children. Bloomfield served as Honorary Liberian Consul and frequently helped Wilson financially. Bloomfield referred to Wilson as being in a “constant state of penury” and used his good will and gifts of money to periodically influence Wilson for assistance. Wilson gave Bloomfield a copy of his passport to open an offshore bank account and signed various questionable documents in exchange for the support Bloomfield gave Wilson and his family.

In November 1994, Bloomfield sent Wilson a package with 16 letters to sign, each addressed to the directors of the 16 West-field partners’ shell corporations. Each letter read as follows:

“Dear Sirs
“This is to confirm in my capacity as beneficial owner of the share capital of this Company that you should at all times implement my directions relating to the affairs and conduct of the Company business and undertaking or such other person as I may from time to time nominate in writing.
“Yours faithfully
“Charles HNE Wilson.”

Upon receipt of the letters, Wilson lay the letters aside until Bloomfield called a week or two later and assured him that they were “perfectly correct.” In response, Wilson sent Bloomfield a letter stating that he was apprehensive about signing the letters and reminded Bloomfield that the latter had promised “never [to] mislead [him] nor talk [him] into anything illegal.” Bloomfield returned the letter and envelope and wrote a note on it stating “Charles—attorney Creggy assures me that these are regular business accounts. I know him and trust him. Be assured that we will always try to protect your position.” Bloomfield continued to call Wilson until he ultimately signed and returned the letters. The letters were then forwarded to Creggy in London.

Meanwhile, the Management Company had been repeatedly contacting Warren to learn the identity of the true owner. Initially Warren ignored the requests as to the identity of the owner, but in June 1995 he finally responded to the inquiry with a fax indicating that Wilson was the beneficial owner of the 16 corporations as well as others.

The SEC investigation continued. Warren responded to its inquiry by referring the request for information to England’s Law Society “for their opinion as to disclosure on matters which touch upon professional confidence and privilege.” He never responded further. The SEC ultimately referred the matter to the British regulatory agency, the Department of Trade and Industry (DTI) who in turn contacted Warren. In response, Warren supplied DTI with various files maintained in his office for each company which were then returned. These files did not contain the letters in question. DTI thereafter learned of Wilson’s identity directly from the Management Company. After obtaining this information, the British police executed a search warrant for 38 Queen Anne Street where they seized documents. The officers questioned Creggy who denied knowledge of the subject companies and referred them to Warren. The officers then confronted Warren who handed over various documents. The documents taken from the office, in part, consisted of the files given to the DTI and an additional “working notes” file from Warren’s secretary’s office which contained, among other things, copies of the 16 executed Wilson ownership letters as well as unsigned draft copies. As a result of the investigation, Warren was extradited to the United States where he pleaded guilty to attempted enterprise corruption.

On April 3, 2001, Bloomfield and Creggy were each indicted on one count of conspiracy in the fifth degree in violation of Penal Law § 105.05 (1); 17 counts of falsifying business records in the first degree in violation of Penal Law § 175.10; two counts of criminal possession of a forged instrument in the first degree in violation of Penal Law § 170.30; and one count of criminal possession of forgery devices in violation of Penal Law § 170.40.

Supreme Court dismissed four counts of the indictment, which left 16 counts of falsifying business records in the first degree (E felonies) and one count of conspiracy in the fifth degree, all based upon the Wilson letters. Supreme Court rejected the argument, however, that the letters could not be business records since they were found in Warren’s office, not at the enterprise. A bench trial before a different justice followed and Creggy and Bloomfield were each found guilty of the remaining 17 counts. Each was sentenced to 500 hours of community service, a $6,000 fine and five years’ probation. On appeal, the Appellate Division unanimously reversed, on the law, and dismissed the indictment. A Judge of this Court granted leave to appeal and we now reverse.

In reversing Supreme Court, the Appellate Division wrote: “[Since] the letters were not held by the Management Company or in the records of the 16 individual companies, they were not ‘kept or maintained’ by these offshore corporations (the enterprise). Thus, they do not fit within the legal definition of ‘[b]usiness record’ ” (15 AD3d 302, 304 [2005]). The People contend that the Appellate Division applied an unduly restrictive reading of Penal Law § 175.10 by placing emphasis on the location of the documents, which neither the plain language of the statute nor case law supports. We agree.

The only issue we are asked to decide is whether the People presented legally sufficient evidence to support the conclusion that the 16 letters fit within the definition of “business records.” Penal Law § 175.10, falsifying business records in the first degree, (1) incorporates the elements of Penal Law § 175.05 (falsifying business records in the second degree—“[a] person is guilty of falsifying business records in the second degree when, with intent to defraud, he . . . [m]akes or causes a false entry in the business records of an enterprise”) and (2) provides further that the “intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.” “Business record” is defined as “any writing or article . . . maintained by an enterprise for the purpose of evidencing or reflecting its condition or activity” (Penal Law § 175.00 [2]). “Enterprise” is defined as “any entity of one or more persons . . . engaged in business, commercial [or] professional. . . activity” (Penal Law § 175.00 [1]).

“Where the language of a statute is clear and unambiguous, courts must give effect to its plain meaning” (Matter of Tall Trees Constr. Corp. v Zoning Bd. of Appeals of Town of Huntington, 97 NY2d 86, 91 [2001]). The statute at issue does not refer to the location of the records. Thus, contrary to the Appellate Division’s holding, the actual location of the records is not dis-positive as to whether the documents are business records under Penal Law § 175.00. Instead, location is merely a factor for the trier of fact to consider in determining whether the purpose of the records is to reflect or evidence the “condition or activity” of the enterprise. Certainly a document purporting to state the identity of the owner of a company could reflect or evidence the “condition” of that enterprise.

We further reject defendant Bloomfield’s argument that false documents created and held for the purpose of deceiving outside third parties do not qualify as business records and reject the insider/outsider distinction. It is clear that the Legislature, in enacting section 175.00 et seq., intended to protect outsiders, as well as insiders, from fraudulent falsification of an enterprise’s records.

Here, there was evidence adduced at trial that demonstrated that the Management Company did not generally keep ownership records for these corporations (they were kept at the law office) but instead focused on processing corporate transactions. There was further evidence that the Management Company had been informed by the companies’ corporate attorney and business agent, Warren, that Wilson was the actual beneficial owner of the corporations even though the corporations were really owned by the Westfield partners. Supreme Court could reasonably have inferred that Warren and Creggy’s roles were not solely as counsel but also as management as they served as an integral part of the enterprise.

In conclusion, there was a valid line of reasoning and permissible inference by which to hold that the letters signed by Wilson and fashioned by Warren, Bloomfield and Creggy were produced for the “purpose of evidencing or reflecting [the enterprise’s] condition”—that the corporations were owned by a foreigner, a condition essential to the illicit scheme. To apply the statute in any other way would undermine its purpose by inviting purveyors of fraudulent corporate documents to seek refuge in the filing cabinets of their attorneys.

Accordingly, the order of the Appellate Division should be reversed and the case remitted to the Appellate Division for consideration of the facts.

Chief Judge Kaye and Judges G.B. Smith, Rosenblatt, Graffeo and R.S. Smith concur; Judge Read taking no part.

Order reversed and case remitted to the Appellate Division, First Department, for consideration of the facts (see CPL 470.25 [2] [d]; 470.40 [2] [b]).


author: Rosenblatt, J.

text:
    [ 844 NE2d 756, 811 NYS2d 302]
    Country-Wide Insurance Company, Appellant, v National Railroad Passenger Corporation, Also Known as Amtrak, Respondent. Hui Haw So et al., Plaintiffs.
    Argued January 4, 2006;
    decided February 14, 2006

      POINTS OF COUNSEL

      Jaffe & Nohavicka, New York City (Joseph D. Nohavicka of counsel), for appellant.
    There has been no ambiguity in the decisions from this Court regarding the burden shifting framework of Vehicle and Traffic Law § 388 when presented with the uncontradicted testimony of an owner and a driver: even where the owner and driver testify without contradiction that the driver had no permission or was out of the scope of authority, the case should still go to the trier of fact. (Murdza v Zimmerman, 99 NY2d 375; Morris v Snappy Car Rental, 84 NY2d 21; Tikhonova v Ford Motor Co., 4 NY3d 621; Continental Auto Lease Corp. v Campbell, 19 NY2d 350; Mandelbaum v United States, 251 F2d 748; Thompson v Bulson, 4 Misc 3d 129[A]; Matter of Allstate Indem. Co. v Nelson, 285 AD2d 545; Ferris v Sterling, 214 NY 249; St. Andrassy v Mooney, 262 NY 368; Piwowarski v Cornwell, 273 NY 226.)

      Landman Corsi Ballaine & Ford P.C., New York City (William G. Ballaine and Rochanne Sharei of counsel), for respondent.
    Settled New York law supports the decision granting summary judgment because the substantial uncontroverted evidence of no permissive use could not be reasonably disregarded by a jury. (Mandelbaum v United States, 251 F2d 748; St. Andrassy v Mooney, 262 NY 368; Barrett v McNulty, 32 AD2d 953, 27 NY2d 928; Morris v Snappy Car Rental, 84 NY2d 21; Murdza v Zimmerman, 99 NY2d 375; Leotta v Plessinger, 8 NY2d 449; Payne v Payne, 28 NY2d 399; Hukey v Massachusetts Bonding & Ins. Co., 277 App Div 411; New York Cent. Mut. Fire Ins. Co. v Nationwide Mut. Ins. Co., 307 AD2d 449; Cooper v City of New York, 293 AD2d 704.)
   OPINION OF THE COURT

Rosenblatt, J.

The United States Court of Appeals for the Second Circuit has certified to us questions relating to section 388 of the Vehicle and Traffic Law. That section holds vehicle owners vicariously liable for the negligence of those whom they allow to drive their vehicles (Tikhonova v Ford Motor Co., 4 NY3d 621, 623 [2005]). The certification relates to the circumstances in which, for summary judgment purposes, a driver may be said to have operated a vehicle without the owner’s permission.

On February 27, 2000, Alex D. Sanchez, an Amtrak employee, was working at the company’s Sunnyside Yard facility. Just before his shift began, he realized that he did not have the Amtrak-issued radio he needed for work. Although he had no valid driver’s license, Sanchez took an Amtrak pickup truck and drove home to get the radio. Driving back on the Gowanus Expressway in Brooklyn, he struck the plaintiffs’ car.

Plaintiffs sued National Railroad Passenger Corporation (Amtrak) in state court. Amtrak removed the case from Kings County Supreme Court to the United States District Court for the Eastern District of New York. In its motion for summary judgment, Amtrak argued that it cannot be held vicariously liable under Vehicle and Traffic Law § 388 (1) because Sanchez had neither express nor implied permission to take the pickup truck. That section reads as follows:

“Every owner of a vehicle used or operated in this state shall be liable and responsible for death or injuries to person or property resulting from negligence in the use or operation of such vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner” (id.).

In support of its motion, Amtrak offered the declaration of David Zwolinski, stating that he was acting assistant supervisor at the Sunnyside facility and that Sanchez took the vehicle and “drove it off the premises without advising anyone, without requesting or receiving my permission, and without obtaining the authorization of anyone at Amtrak.” This unauthorized use of the vehicle, Zwolinski added, did not occur during Sanchez’s shift and was not within the scope of his employment.

Amtrak also submitted internal documents supporting its claim of unauthorized use, including an incident report and a letter directing Sanchez to appear for a formal Amtrak investigation, in which he was charged with using the vehicle without authorization. In addition, Amtrak submitted its accident report stating that Sanchez’s use of the truck was “non-authorized,” a two-paragraph statement by Sanchez and a “Waiver of Hearing” by which he accepted discipline, which included $17,600 in restitution and docked wages. In the statement, Sanchez admitted taking the vehicle to retrieve his radio but did not speak to the question of permission. In the waiver, however, he accepted punishment based on charges that he took the vehicle without permission and we are prepared to construe this, as the Second Circuit evidently did, as an uncontradicted statement that he had no permission.

In opposition, Country-Wide offered no evidence of its own, and instead argued that Amtrak made no report of the event to any law enforcement agency, that Sanchez took the pickup because he needed the radio to do Amtrak work, and that Amtrak’s formal investigation did not begin until weeks after the incident. Thus, according to Country-Wide, a trier of fact could reasonably conclude that the use was authorized.

In discussing section 388 of the Vehicle and Traffic Law, the District Court applied the presumption that Sanchez operated the truck with Amtrak’s consent, but held that the presumption was rebutted by substantial evidence, and granted Amtrak summary judgment. On appeal from the District Court judgment, the Second Circuit reviewed the pertinent case law—both its own and New York State appellate-level decisions—and expressed uncertainty as to whether, under New York law, summary judgment for the owner was warranted. The court certified the following five questions:

“1. Under New York law, are uncontradicted statements of both the owner and the driver that the driver was operating the vehicle without the owner’s permission sufficient to warrant a court in awarding summary judgment to the owner?
“2. If the answer to question #1 is ‘no,’ is additional circumstantial evidence such as contemporaneous accident reports submitted by the owner sufficient to tip the balance and warrant a court in awarding summary judgment despite the interested nature of the source?
“3. Is the uncontradicted testimony of driver and owner that the driver was operating the vehicle without permission, even if not sufficient to warrant summary judgment, sufficient at a trial to overcome the statutory presumption of permissive use, thereby placing the burden on plaintiff to prove permissive use?
“4. If the answer to question #3 is ‘no,’ is the addition of such further evidence as contemporaneous accident reports by the owner sufficient to rebut the presumption of permissive use at trial?
“5. Does New York law allow the absence of a report of unauthorized use of a vehicle to law enforcement to count as evidence of permissive use sufficient, alone or together with other evidence, to defeat summary judgment?” (407 F3d 84, 89 [2005].)

We appreciate the Second Circuit’s invitation to adjust the questions in a way that best enables us to answer them. Because we cannot answer the first question with an unvarying “yes” or “no,” and the second question comes into play only if the answer to the first question is “no,” we are combining the first two questions, along with the fifth, which is germane to our response to the first two.

We can best respond by stating that uncontradicted statements of both the owner and the driver that the driver was operating the vehicle without the owner’s permission will not necessarily warrant a court in awarding summary judgment for the owner. In most circumstances—including the circumstances of this case—they will, but not as an absolute or invariable rule. Our decisional law reflects as much.

In St. Andrassy v Mooney (262 NY 368 [1933]), the owner, his wife and their chauffeur testified that the chauffeur had no consent, express or implied, to take the car and that he took it unlawfully and in defiance of his employer’s commands. The Court laid down a rule that still governs the issue: “If the evidence produced to show that no permission has been given has been contradicted or, because of improbability, interest of the witnesses or other weakness, may reasonably be disregarded by the jury, its weight lies with the jury” (id. at 372). The Court recognized that the owner may be considered interested, but there were no grounds on which to discredit his testimony, and so the presumption of permission was overcome.

Similarly, in Barrett v McNulty (27 NY2d 928 [1970]), there was uncontradicted evidence that the driver had no permission to operate the vehicle; he had pleaded guilty to theft of the vehicle, and, most critically, there was no competent evidence from which permission could be inferred. We held that the trial court properly dismissed the complaint against the owner at the close of the evidence.

Most recently, in Manning v Brown (91 NY2d 116 [1997]), the driver and the owners stated in their depositions that the driver neither asked for nor received permission from the owners to drive the car. The driver pleaded guilty to car theft, and we ruled that the trial court properly granted summary judgment to the owners. The owners, we held, produced sufficient evidence to rebut the presumption, leaving no triable issue of fact as to the question of consent.

These cases have a common theme: both the owner and the driver disclaimed consent, and the plaintiff produced no competent evidence from which consent could be inferred. As a corollary, however, disavowals by both the owner and the driver, without more, should not automatically result in summary judgment for the owner. Where the disavowals are arguably suspect, as where there is evidence suggesting implausibility, collusion or implied permission, the issue of consent should go to a jury. Two cases illustrate this point.

In Winnowski v Polito (294 NY 159 [1945]), the owner parked his car on a busy thoroughfare, leaving the key in the ignition switch and his 14-year-old son in the car. A police officer ordered the youth to move the car, notwithstanding his protest that he had neither the permission nor the competence to drive it. The father confirmed that he expressly forbade his son to drive the car at any time. We reversed the Appellate Division’s dismissal of the complaint against the owner, holding that the trial court was within its prerogative as the trier of facts in concluding that the son had implied permission, based on the reasonable expectation that an emergency or other necessity might arise, that would require the car to be moved (see also Piwowarski v Cornwell, 273 NY 226 [1937]).

Motor Veh. Acc. Indem. Corp. v Continental Natl. Am. Group Co. (35 NY2d 260 [1974] [MVAIC]) is another instance in which summary judgment to the owner was not warranted though the owner had undeniably withheld its express consent to the driver. The owner, a rental car company, leased the car to a customer who agreed that he would not let anyone else drive it without the company’s permission. In spite of the agreement, the customer allowed a third person to drive the car and an accident ensued. We held that, despite the restrictions in the rental contract, the rental company gave “constructive consent” to the third person based on the likelihood that customers would allow others to drive rental cars. While MVAIC was based on public policy grounds, it illustrates that summary judgment for the owner will not necessarily be granted even though both the owner and driver acknowledge that the owner did not give the driver consent to operate the car (and, indeed, expressly prohibited operation).

In Mandelbaum v United States (251 F2d 748 [2d Cir 1958]), the Second Circuit recognized that there are New York cases indicating that

“even where the owner and driver testify without contradiction as part of the defendant’s case that the driver had no permission or was out of the scope of employment, the case should still go to the trier of fact and if that evidence of interested witnesses is disbelieved the presumption has not been overcome” (id. at 751).

In certifying the present case to us, however, the Second Circuit questioned whether Mandelbaum is an accurate reflection of New York law. We conclude that it is, insofar as it recognizes that summary judgment for the owner will not inexorably follow whenever the owner and driver disavow consent. Mandelbaum should not be understood, however, as suggesting or mandating that summary judgment must be denied even where the absence of consent is emphatic and unimpeachable. In short, whether summary judgment is warranted depends on the strength and plausibility of the disavowals, and whether they leave room for doubts that are best left for the jury.

Thus the answer to a combination of questions 1 and 2—will uncontradicted statements by the owner and driver that the driver was without permission, bolstered by such additional evidence as accident reports, warrant a court in awarding summary judgment to the owner?—is, as a general matter: “Usually, but not always.” On the specific facts of this case, they would.

Here, the disavowals were as firm and unassailable as they were in St. Andrassy and Manning and were reinforced by Amtrak’s contemporaneous accident reports. Sanchez accepted a punishment based on a written allegation that he took the truck without authority. In view of the evidence that overcame the presumption of consent, with nothing on the other side of the scale, summary judgment for Amtrak is consistent with New York law.

In our Court, Country-Wide argued, in addition to its other points, that Amtrak failed to report the unauthorized use of the vehicle to a law enforcement agency. While, in answer to certified question 5, New York law allows that failure to be considered, it should not alone defeat a grant of summary judgment to the owner, where, as here, the proof against permission is strong and uncontested, with nothing (apart from speculation) to cast doubt on its plausibility.

We note that the third and fourth questions relate to proof at trial. We are prohibited by our rules from answering those questions because our answers would not be determinative (see Ct App Rules Prac [22 NYCRR] § 500.27 [a]; NY Const, art VI, § 3 [b] [9]). Moreover, in light of our response to questions 1, 2 and 5, questions 3 and 4 become academic.

Accordingly, the certified questions should be answered in accordance with this opinion.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Graffeo and R.S. Smith concur; Judge Read taking no part.

Following certification of questions by the United States Court of Appeals for the Second Circuit and acceptance of the questions by this Court pursuant to section 500.27 of the Rules of the Court of Appeals (22 NYCRR 500.27), and after hearing argument by counsel for the parties and consideration of the briefs and the record submitted, certified questions answered in accordance with the opinion herein.

      . Plaintiffs also sued Country-Wide Insurance Company, asserting that as the carrier for one of the plaintiffs it would be liable under the policy’s underinsurance provision if Sanchez drove Amtrak’s vehicle without its consent. In this posture, Country-Wide has argued that the Federal District Court should not have granted Amtrak summary judgment. Plaintiffs did not participate in the federal court proceedings nor have they appeared in this Court.

      . The presumption is not contained in the statute but is part of our decisional law (see e.g. Murdza v Zimmerman, 99 NY2d 375, 380 [2003]; Leotta v Plessinger, 8 NY2d 449, 461 [1960]; Winnowski v Polito, 294 NY 159, 161 [1945]).

      . St. Andrassy was decided under former section 59 of the Vehicle and Traffic Law, which, in turn, was derived from section 282-e of the Highway Law (L 1924, ch 534), the original statute by which owners were held vicariously responsible for the negligence of drivers whom they allowed to drive their vehicles.

      . We are mindful that the final determination of this appeal is of course the role of the Second Circuit, not of this Court (Rooney v Tyson, 91 NY2d 685, 690 [1998]; Engel v CBS, Inc., 93 NY2d 195, 207 [1999]), and that it is not our task to apply the Federal Rules of Civil Procedure. The first certified question, however, does not admit of a straightforward “yes” or “no” answer, and we therefore think it is necessary, in order to provide the certifying court with the guidance it seeks, to state whether we believe that the District Court’s decision was consistent with New York law.