source: Caselaw Access Project

author: Chief Judge Kaye. Read, J. (dissenting).

license: Public Domain

text:
    [814 NE2d 799, 781 NYS2d 492]
    In the Matter of Sherman F. Taub et al., Appellants, v Herbert I. Altman, as Justice of the Supreme Court of the State of New York, et al., Respondents.
    Argued June 3, 2004;
    decided July 1, 2004

      POINTS OF COUNSEL

      Stillman & Friedman, P.C., New York City (Nathaniel Z. Marmur, Charles A. Stillman and Peter A. Chavkin of counsel), for appellants.
    I. The processing of New York City tax revenue in New York County does not cause a particular effect on that County. (People v Ribowsky, 77 NY2d 284; People v Moore, 46 NY2d 1; People v R., 160 Misc 2d 142; Matter of Murphy v Supreme Ct., 294 NY 440; People v Fea, 47 NY2d 70; Matter of Steingut v Gold, 42 NY2d 311; People v Calandra, 117 Misc 2d 972; People v Axentiou, 158 Misc 2d 19; People v Hopkins, 95 Misc 2d 716; People v Tellerman, 103 AD2d 786.) II. Appellants did not intend to harm New York County. (People v R., 160 Misc 2d 142; People v Costa, 121 Misc 2d 864; People v Moorehead, 1 AD3d 639.) III. The indictment does not allege a particular effect on New York County. (People v Calandra, 117 Misc 2d 972.)

      Robert M. Morgenthau, District Attorney, New York City (Deborah Hickey, AmyJane Rettew and Ellen Nachtigall Biben of counsel), for respondent.
    I. As defendants well knew, their tax crimes were likely to have a materially harmful impact on the “governmental processes and community welfare” of New York City by depriving its officials and lawmakers, in New York County, of badly-needed tax revenues. (People v Axentiou, 158 Misc 2d 19; People v Costa, 121 Misc 2d 864; People v McLaughlin, 80 NY2d 466; People v Greenberg, 89 NY2d 553; Matter of Steingut v Gold, 42 NY2d 311; People v Ribowsky, 77 NY2d 284; People v Moore, 46 NY2d 1; People v Kassebaum, 95 NY2d 611, 532 US 1069; People v Goldswer, 39 NY2d 656; Matter of Murphy v Supreme Ct., 294 NY 440.) II. The language of the indictment, as amplified by the bill of particulars, provides adequate notice of the venue theory underlying the tax-related counts. (Matter of Steingut v Gold, 42 NY2d 311; People v Fitzgerald, 45 NY2d 574; People v Mackey, 49 NY2d 274; People v Iannone, 45 NY2d 589; People v Cohen, 52 NY2d 584; People v Ray, 71 NY2d 849; Matter of State of New York v King, 36 NY2d 59; Matter of Veloz v Rothwax, 65 NY2d 902; Matter of Pirro v Angiolillo, 89 NY2d 351; Matter of Morgenthau v Roberts, 65 NY2d 749.)
   OPINION OF THE COURT

Chief Judge Kaye.

Defendants Sherman Taub, a Queens County resident, and International Mortgage Servicing Company (IMSC), a New Jersey limited liability company in which Taub owns a half interest, were indicted by a New York County grand jury on 34 counts arising from an alleged scheme to steal millions of dollars through the imposition of allegedly inflated mortgages on Ocean House Center, a Queens County not-for-profit adult home for residents with mental disabilities.

On this appeal, defendants challenge New York County’s jurisdiction to prosecute five of these counts, each of which charges defendants with the class E felony of offering a false instrument for filing in the first degree (see Penal Law § 175.35); jurisdiction as to the remaining 29 counts—including the class B and C felonies of grand larceny in the first and second degrees—is uncontested. The challenged counts are based on defendants’ filing of allegedly false New York State and City tax returns, which did not reflect certain interest income derived from the mortgages held by IMSC on Ocean House.

Inasmuch as the evidence before the grand jury did not establish that defendants’ tax returns were either mailed from or received in Manhattan, or that defendants committed any other act in Manhattan establishing an element of the relevant offenses (see CPL 20.40 [1] [a]), the People relied on a theory of “particular effect” jurisdiction in order to establish venue in New York County with respect to these counts. This theory permits a criminal court of a particular county to exercise geographical jurisdiction, or venue, over an offense when—even though none of the conduct constituting the offense occurred within that county—“[s]uch conduct had, or was likely to have, a particular effect upon such county or a political subdivision or part thereof, and was performed with intent that it would, or with knowledge that it was likely to, have such particular effect therein” (CPL 20.40 [2] [c]). Conduct constituting an offense has a “particular effect” upon a county when it “produces consequences which, though not necessarily amounting to a result or element of such offense, have a materially harmful impact upon the governmental processes or community welfare of [the] particular [county], or result in the defrauding of persons in such [county]” (CPL 20.10 [4]).

After Supreme Court denied their motion to dismiss the five tax-related counts, made on the ground that jurisdiction did not lie in New York County, defendants brought this CPLR article 78 proceeding, seeking a writ of prohibition to enjoin prosecution of those counts. The Appellate Division denied the petition, concluding that defendants’ filing of the allegedly false New York City tax returns had a particular effect on New York County. We disagree, and now reverse.

I.

At the outset, we emphasize that, in order for prosecutorial jurisdiction to lie in New York County, it is that county—and not the City generally—that must suffer a particular effect as a result of defendants’ alleged conduct. The statutory requirement that the conduct have a materially harmful impact may thus be satisfied only by a “concrete and identifiable injury” (Steingut, 42 NY2d at 318) to either the county’s governmental processes (that is, the executive, legislative or judicial branch of government) or the welfare of the county’s community. Moreover, to be materially harmful, the impact must be more than minor or incidental, and the conduct must harm “the well being of the community as a whole,” not merely a particular individual (Fea, 47 NY2d at 77). In addition, because the jurisdiction of the county seeking to prosecute must be established before the grand jury, the type of injury or offense contemplated by the particular effect statute must “be perceptible and of the character and type which can be demonstrated by proof before a Grand Jury” (Steingut, 42 NY2d at 317). Because particular effect jurisdiction is to be applied only in “limited circumstances” (Fea, 47 NY2d at 76), it has been rarely invoked.

[I] There is no dispute that defendants’ conduct, if true, had a materially harmful impact on the governmental processes or community welfare of New York City as a whole. By underreporting income on their New York City tax returns, defendants deprived the City of revenue that would otherwise have been available to meet its financial obligations and fund its governmental operations. Such a loss of revenue, which could lead to cuts in city services or increases in taxes, clearly constitutes a perceptible injury to the City of New York. The question presented, however, is whether the evidence before the grand jury establishes a concrete and identifiable injury suffered specifically by New York County. We conclude that it does not.

The People’s theory of venue is based on New York County’s status as the “seat of City government,” and the resultant processing of city income tax revenue in that county. Under this theory, defendants’ alleged tax evasion has a particular effect on New York County because New York City taxes are processed and remitted to the City through the Transitional Finance Authority, which is located in New York County, and through city bank accounts also located there. Further, these accounts are controlled by the New York City Commissioner of Finance, whose office is located in New York County, as is the Department of Finance’s Bureau of Treasury, which oversees the collection and management of the City’s tax revenue.

We conclude, however, that—in a prosecution whose gravamen is the deprivation of revenue from New York City—the location of city agencies and bank accounts is alone insufficient to establish a particular effect on the county in which they happen to be located.

II.

In Steingut, the defendants were indicted for corrupt use of position or authority (see former Election Law § 448 [1], [3]), based on a meeting held in Manhattan at which defendants allegedly conspired to corrupt an election to be held in Kings County for city councilmember-at-large. Although Kings County was in some measure affected by this criminal conduct, we held that the mere fact that the allegedly tainted election was to take place in Brooklyn was insufficient to establish particular effect jurisdiction in Kings County. As is readily apparent, the conspiracy to corrupt the election in Steingut bore a closer relationship to Kings County, where the election was to take place, than the false filing here bears to New York County.

As we explained in Steingut, “If the injured forum jurisdictional statute were to be triggered by the amorphous fact that the voters of the county would be called upon to vote in an election allegedly tainted by criminal activity localized in a single county, then if the election was one for a State-wide office any county within the State would be able to assert jurisdiction to indict and prosecute. This is clearly not the intent of the statute” (42 NY2d at 317).

The same concerns exist in the case before us, where the facts proffered to establish particular effect are even more amorphous than those held insufficient in Steingut. Permitting New York County to exercise particular effect jurisdiction over an alleged underreporting of income on tax returns based solely on the “processing” of New York City tax revenues in Manhattan would effectively grant the New York County District Attorney jurisdiction throughout New York City to prosecute any income tax or other offense that arguably affects city revenue or expenditures. Such jurisdiction would include prosecution of a Bronx toll taker who embezzles funds, or of a person who steals from a city agency in Kings County or vandalizes city property in Queens or Richmond.

Moreover, under the People’s theory, the Albany County District Attorney could prosecute any similar crime against the State, no matter where it occurred, including, for example, a Buffalo resident who steals from the till at a local Department of Motor Vehicles office or a driver who evades a toll on Long Island. These scenarios would constitute a vast expansion of the “limited circumstances” in which protective jurisdiction is to be applied (Fea, 47 NY2d at 76).

Rather, such “limited circumstances” have typically involved situations in which the injury to the prosecuting county is more particular and readily identifiable. If, for example, a person commits criminal mischief by maliciously blowing up a dam in Putnam County near the Westchester County line, thus flooding some Westchester territory—a result the individual either intends or knows is likely to occur—jurisdiction of the crime will properly lie in Westchester as well as in Putnam (see Stein-gut, 42 NY2d at 317; Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL 20.40, at 133).

Other examples of perceptible, materially harmful impacts on counties where the offensive conduct has not occurred include the failure of a temporarily released prisoner to return to the county of confinement (see People v Scannelli, 49 AD2d 648 [3d Dept 1975]); the violation of an order of protection issued in a particular county, even if the conduct violating the order occurred elsewhere (see People v Ortega, 152 Misc 2d 84 [Grim Ct, NY County 1991]); or “an attempt in county B to bribe an executive officer of county A to effectuate a decision favorable to the offeror’s interests in county B,” because such an attempt, if accomplished, “would have a perceptible detrimental impact upon the governmental integrity of county A” (Fea, 47 NY2d at 77).

In general, then, particular effect jurisdiction will be sustained when, for example, a defendant’s out-of-county conduct has interfered with the county’s courts or administration of justice; has exposed a large number of county residents to a specific harm; has caused a physical intrusion upon the county; or has involved the theft of funds from the county itself. But where, as here, the only nexus between the prosecuting county and the harmed political subdivision is the location of offices and accounts of the subdivision within the county, the statutory requirements have not been satisfied and the asserted impact is “amorphous at best” (Fea, 47 NY2d at 77).

Indeed, the People’s theory would permit the type of broad geographical jurisdiction specifically rejected when the statute was enacted. The statutory definition of “particular effect” was added to the original bill after “District Attorneys complained that the proposed statute gave all counties jurisdiction of all crimes and they gave, as an example, that under it any robbery or burglary of a bank in one county would cause an effect on depositors in many counties and the crime would be committed with intent and knowledge that it would have such effect” (Matter of Steingut v Gold, 54 AD2d 481, 487 [2d Dept 1976], affd 42 NY2d 311 [1977]). Plainly, CPL 20.40 (2) (c) requires a harm to the prosecuting county, not a harm felt by a city-wide governmental agency that happens to have an office in the county.

That the instant prosecution arises from a violation of Penal Law § 175.35 does not change this result. True, we explained in Fea that “[extraterritorial jurisdiction is to be applied only in those limited circumstances where the out-of-jurisdiction conduct is violative of a statute intended to protect the integrity of the governmental processes or is harmful to the community as a whole” (47 NY2d at 76-77 [citations omitted]). And Penal Law § 175.35 provides that “[a] person is guilty of offering a false instrument for filing in the first degree when, knowing that a written instrument contains a false statement or false information, and with intent to defraud the state or any political subdivision, public authority or public benefit corporation of the state, he [or she] offers or presents it to a public office, public servant, public authority or public benefit corporation with the knowledge or belief that it will be filed with, registered or recorded in or otherwise become a part of the records of such public office, public servant, public authority or public benefit corporation.” Clearly, inasmuch as it criminalizes frauds perpetrated on the State or its political subdivisions, this statute is intended to protect the integrity of governmental processes.

But that truism neither answers the question nor alters the analysis with respect to which political subdivision is defrauded or affected. While it is beyond dispute that defendants’ alleged conduct materially harmed the government of New York City, nothing in Fea, or in Penal Law § 175.35, abolishes the mandate of CPL 20.40 (2) (c) and 20.10 (4) that the particular effect in this case be not on the governmental processes of New York City as a whole, but on those of New York County. The evidence proffered here is insufficient to establish that the harm suffered by the City was in any meaningful way peculiar to New York County. The People have identified no New York County government agency, employee or process that is connected in any way to New York City income tax collection, nor have they identified any particular harm to the welfare of New York County or its residents. Rather, all five boroughs and their residents and governments were equally affected by the City’s loss of funds and the resultant risk of service cuts or tax increases, and the ministerial act of processing tax revenue cannot alone create a jurisdictional nexus.

Nor is the evidence here sufficient to establish the second statutory requirement for injured forum jurisdiction—that the conduct was performed with intent that it would, or with knowledge that it was likely to, have a particular effect in New York County. We disagree with the Appellate Division that it would have been reasonable for the grand jury to presume that defendants, who neither executed the subject tax returns in New York County nor mailed them there, had knowledge or intent that their Queens County scheme to defraud was likely to have a particular harmful effect on New York County (as opposed to New York City), or, specifically, that their false tax returns were likely to be processed in New York County offices and banks. Most citizens would have no awareness of this circumstance, or of where the City banks. Rather, defendants likely filed their tax returns only with the knowledge and intent that material harm would befall the City or the State in general by their failure to remit the taxes owed.

We note that New York City is unique among municipalities of the State in that it is larger than any of the counties it comprises. Elsewhere, cities, towns and villages exist wholly within single counties, which have jurisdiction under the statute to prosecute crimes having a particular effect on any municipality contained within them. Of course, historically and constitutionally, counties prosecute, not cities (see NY Const, art XIII, § 13; see also County Law § 700). The People assert that this unique situation creates an anomaly whereby the City may be deprived of its ability to prosecute within its borders certain crimes, of which it is undeniably the victim, involving depletion of its coffers.

That fear is unwarranted. First, particular effect jurisdiction is an alternative ground for venue that is generally invoked only when jurisdiction does not he on some other basis—such as the far more common scenario in which evidence exists that conduct establishing an element of the offense has occurred within one (or more) of the five counties of the City (see CPL 20.40 [1] [a]). In that event, which would certainly include all larcenies by physical taking of, and all damage to, city property, the county or counties where the conduct occurred would have jurisdiction to prosecute. Second, even in cases involving false filing of income tax returns, in which city taxes—like state taxes—will have been mailed to Albany, jurisdiction will lie in any county where the defendant executed or mailed the return. In any event, whether New York City’s situation is unique or anomalous, any perceived gap must be filled by the Legislature. We hold only that, under CPL 20.40 (2) (c), New York County may not assert jurisdiction over all crimes affecting the City on the sole basis that certain city agencies transact their business in offices located in Manhattan. Of course, nothing in our decision today prevents defendants from being prosecuted for their alleged false filings in any county—including another county within New York City—in which venue properly lies (see CPL 40.30; Steingut, 54 AD2d at 485 n 4).

III.

Finally, we reject defendants’ contention that the indictment was facially insufficient for failure to specify the particular effect charged. It is true that in Steingut, this Court noted that “the nebulous nature of the impact claimed by the prosecutor . . . [was] best illustrated by the fact that the indictment itself [did] not even allege the effect which the purported crime would have on Kings County. Rather in the most conclusory fashion, the indictment simply state[d] ‘the defendants’ conduct had and was likely to have a particular effect on Kings County’ ” (42 NY2d at 318). The Court concluded that “[c]ertainly the invoking of the extraordinary injured forum jurisdictional statute requires the specification of a more concrete and identifiable injury” (id.). Nevertheless, although the indictment here, too, merely asserted without specificity that the charged conduct “had and was likely to have a particular effect upon the County of New York, and was performed with intent that it would and with knowledge that it was likely to have such a particular effect herein,” the bill of particulars provided by the People set forth in detail both the prosecution’s theory of venue and specific facts in support of their contention (which we reject) that there had been a particular effect on New York County. We thus agree with the Appellate Division that the bill of particulars, in combination with the indictment, sufficiently put defendants on notice of the accusations against them and enabled them to prepare a defense (see People v Iannone, 45 NY2d 589, 597-598 [1978]; People v Grega, 72 NY2d 489, 498 [1988]; People v Fitzgerald, 45 NY2d 574, 579-580 [1978]).

Accordingly, the judgment of the Appellate Division should be reversed, without costs, the petition granted, and respondents prohibited from continuing with the prosecution of counts 26 through 30 of the subject New York County indictment.

Read, J. (dissenting).

The Legislature has provided that an offense may be prosecuted in a county when, “[e]ven though none of the conduct constituting such offense may have occurred” there, “[s]uch conduct had, or was likely to have, a particular effect upon such county . . . , and was performed with intent that it would, or with knowledge that it was likely to, have such particular effect therein” (CPL 20.40 [2] [c]). Further, a “particular effect” is defined as a “materially harmful impact upon the governmental processes or community welfare of’ the county seeking to assert jurisdiction (CPL 20.10 [4]). This appeal asks us to decide whether the People established a “particular effect” in New York County with respect to those five counts of the indictment which charged petitioners with evasion of city taxes.

As recognized in People v Fea, “[e]xtraterritorial jurisdiction is to be applied only in those limited circumstances where the out-of-jurisdiction conduct is violative of a statute intended to protect the integrity of the governmental processes or is harmful to the community as a whole” (47 NY2d 70, 76-77 [1979]). Significantly, the majority acknowledges that “[c]learly,” petitioners violated a “statute [Penal Law § 175.35] . . . intended to protect the integrity of governmental processes” (majority op at 37). The majority concludes, however, that the necessary “particular effect” is lacking here because it is not enough that New York County is the seat of New York City government (majority op at 35, 39). It is hard to imagine, though, that the Legislature intended to preclude the county in which city government is situated from prosecuting city tax cheats. Surely, evading city taxes affects the “governmental processes or community welfare” of New York County as contemplated by CPL 20.40 (2) (c). Nor can it be said that petitioners (especially petitioner Taub, who had practiced as a tax attorney) should be surprised to face prosecution in New York County. Put differently, by allegedly evading city taxes, he would have had “knowledge that [his tax evasion] was likely to . . . have [a] particular effect” (CPL 20.40 [2] [c]) in the county where his city taxes were required to meet the City’s financial obligations and to operate city government; namely, New York County.

Further, the quantifiable revenue loss here is precisely the type of “concrete and identifiable injury” required in Matter of Steingut v Gold (42 NY2d 311, 318 [1977]). During a meeting in New York County, a public official offered to use his official position to benefit a corrupt businessman in exchange for the latter’s promise to hold a fundraising event for a campaign occurring in Kings County (see id. at 313-314). We found venue lacking in Kings County because there was absolutely no evidence that the election had been tainted. That is, the gravamen of the crime charged in Steingut was really the quid pro quo, which occurred entirely in Manhattan, and could just as easily have been a promise by the businessman to give the public official tickets to a sporting event, rather than an offer to hold the fundraiser. Here, by contrast, the People adduced evidence before the grand jury of the exact amount of city taxes allegedly evaded by petitioners.

Fea is likewise distinguishable from this case. In Fea, the People failed to adduce evidence that the defendant’s conduct had any actual impact on the county (Bronx) asserting venue: the defendant loanshark beat a delinquent debtor in Rockland County to assure resumption of payments in Bronx County (see People v Fea, 47 NY2d at 73-74). Moreover, the defendant had not been charged with violating a statute designed to protect governmental processes (see id. at 76-77).

The main stumbling block for the majority appears to be that revenue loss from city tax evasion affects all of the City’s counties (majority op at 38). But we have never before required a particular effect to be a unique effect (see Steingut, 42 NY2d at 317). Moreover, while the majority may consider it undesirable for multiple counties to have jurisdiction over a single offense, the Legislature clearly contemplated that eventuality. As the Commission Staff Notes observe, “[i]n general, . . . multiple county jurisdiction is bestowed more liberally than state jurisdiction” (Commission Staff Notes, reprinted following CPL 20.40 in NY Cons Laws Serv, Book 7, at 109).

In addition, the potential for prosecution in multiple jurisdictions does not prejudice a defendant. We have recognized, for example, that under the jury trial guarantee of article I, § 2 of the State Constitution, a criminal defendant has the right “to be tried in the county where the crime was committed unless the Legislature has provided otherwise” (People v Ribowsky, 77 NY2d 284, 291 [1991] [emphasis added]). Furthermore, a defendant who faces potential prosecution by multiple counties will, in fact, be prosecuted only once: constitutional protections against double jeopardy, as well as the even more protective statutory bars against multiple prosecutions (see CPL art 40), safeguard a defendant against multiple prosecutions for the same offense.

The majority worries that allowing venue here might inspire the New York County District Attorney to assert jurisdiction over cases where, for example, a toll collector embezzles in the Bronx; or a person steals from a city agency in Kings County or vandalizes city property in Queens or Richmond Counties. Perhaps, the majority suggests, the Albany County District Attorney might be tempted to assert jurisdiction over similar cases of theft or vandalism that diminish state revenues or cause state expenditures (majority op at 35-36). Assuming these District Attorneys would desire to expend limited resources on the prosecutions hypothesized by the majority, the statutes at issue here would preclude them from doing so.

The majority’s hypothetical examples are crimes that, like tax evasion, are committed against a government and adversely affect government revenues. Unlike offering a false instrument for filing, however, these crimes are not “violative of a statute intended to protect the integrity of the governmental processes” (People v Fea, 47 NY2d at 76-77). On the contrary, the majority’s hypothetical examples are garden-variety larcenies or criminal mischief. Such thefts and vandalism do not fall within the category of crimes susceptible to extraterritorial jurisdiction.

Further, the majority’s hypothetical examples are readily prosecuted in the county where the defendant committed the crime. After all, the geographic location of vandalism or a theft is obvious. Accordingly, venue for the majority’s examples would lie in the county of occurrence under CPL 20.40 (1) (a), which provides venue over an offense when a defendant’s “[c]onduct . . . within such county [is] sufficient to establish . . . [a]n element of such offense.”

Under the majority’s reading of the injured forum statutes, however, it has become immeasurably more difficult, if not impossible, to prosecute the evasion of city taxes (except city sales taxes) within the City of New York. Venue will still lie within the county in which the false filing was either executed or mailed (majority op at 39). As this case illustrates, however, it is not always easy to determine years after the fact where a defendant executed or mailed a false tax return. Indeed, according to the People, “an attempt to ground venue in any county on the basis of execution or mailing would be an exercise in futility—even under the ‘preponderance of the evidence’ standard applicable to issues of county venue.” For example, in this case “there was no direct evidence establishing where [petitioner] Taub was when he signed and mailed the returns.”

The majority has therefore effectively designated the county where the false instrument was filed as the sole certain venue for prosecuting evaders of New York City income taxes (see Matter of Sharpton v Turner, 169 AD2d 947, 950 [3d Dept 1991]). The New York State Department of Taxation and Finance, which administers the New York City resident income tax, requires a taxpayer to file a combined state and city resident income tax return (see Tax Law § 1312 [c]; 20 NYCRR 292.1). The Department has directed taxpayers to file these combined returns at an address in Albany County if using the United States Postal Service, or at an address in Ulster County if using a private delivery service (see www.nystax.gov [IT-100-I (Instructions), at 6]).

In short, city income tax cheats may be prosecuted in a county where city tax collection functions have been centralized for reasons of administrative and taxpayer convenience; they may not be prosecuted in New York County, which is the seat of city government, even though a shortfall in city revenues adversely affects the city government’s ability to meet its financial obligations and deliver city services. In our view, a fair reading of the injured forum statutes would avoid this anomalous result. Accordingly, we respectfully dissent from the majority’s conclusion that venue does not lie here, and would affirm the judgment of the Appellate Division denying petitioners’ request for prohibition.

Judges G.B. Smith, Ciparick, Rosenblatt and R.S. Smith concur with Chief Judge Kaye; Judge Read dissents and votes to affirm in a separate opinion in which Judge Graffeo concurs.

Judgment reversed, etc.

      . “Particular effect” jurisdiction is also known as “injured forum” or “protective” jurisdiction (see People v Fea, 47 NY2d 70, 75-77 [1979]; Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11 A, CPL 20.10, at 110).

      . Prohibition properly lies to address a claim that a court is acting in excess of its geographical jurisdiction (see Matter of Steingut v Gold, 42 NY2d 311, 316 [1977]).

      . City taxpayers file their city and state tax returns with the State Commissioner of Taxation and Finance in Albany (see Tax Law §§ 1312, 652 [a]; 20 NYCRR 152.12). The funds are then remitted to the State Comptroller, also in Albany, who forwards the New York City personal income tax portion of that revenue to the Bond Trustee of the New York City Transitional Finance Authority (TFA), a state public benefit corporation (see Public Authorities Law § 2799-aa et seq.), who eventually remits any remaining funds not used to pay TFA’s bond obligations and operating expenses to the New York City Commissioner of Finance (see Tax Law § 1313).

      . If the Transitional Finance Authority were to move uptown to the Bronx, or relocate to another county, jurisdiction for all tax offenses would presumably follow it there, despite the incidental, tenuous, fortuitous and likely unintended effect of the offense on that county.

      . We note that city sales tax returns, by contrast, are filed not in Albany, but in New York County. As the People thus concede, “[t]he only anomaly is City income tax.”

      . Contrary to the contention of the dissent, we do not suggest that venue over an offense may properly lie only in a single county, or that particular effect jurisdiction requires a “unique effect” on the county asserting jurisdiction (dissenting op at 42). Multiple counties may certainly have jurisdiction over a given offense on a variety of theories, including particular effect, but only if the evidence establishes the jurisdictional theory proffered by the People.

      . Each count of an indictment must contain a factual statement which, “without allegations of an evidentiary nature . . . asserts facts supporting every element of the offense charged and the . . . defendants’ commission thereof with sufficient precision to clearly apprise the . . . defendants of the conduct which is the subject of the accusation” (CPL 200.50 [7] [a]).

      . In any event, prohibition does not he with respect to defendants’ challenge to the facial sufficiency of the indictment, in that an insufficiency in the factual allegations of an indictment is not a jurisdictional defect (see Iannone, 45 NY2d at 600-601; People v D’Angelo, 98 NY2d 733, 734-735 [2002]), and because an adequate remedy at law is available through direct appeal (see Matter of State of New York v King, 36 NY2d 59, 62 [1975]).

      . The majority points out that District Attorneys initially complained that multicounty jurisdiction would apply too broadly, with every county potentially having jurisdiction over bank robberies or burglaries, for example, no matter where committed (majority op at 37). Admittedly, the Commission Staff Notes preceded those complaints. Yet, the injured forum provision was revised, not jettisoned. Further, the revisions designed to address the District Attorneys’ comments—especially, defining “particular effect” to necessitate an impact on “governmental processes”—argue for venue here. Nor are the District Attorneys of the other four counties within New York City likely troubled by New York County’s exercise of venue over this tax evasion case (see Wise, Funds Recovered in Tax Cases Soften Blows to DAs’ Budgets, NYLJ, May 10, 2004, at 1, cols 4, 5, at 7, col 1 [describing program to offset budget cuts to the five District Attorneys’ offices by allowing them to “keep part of the taxes recovered through criminal prosecutions” of “tax cheats and others who commit financial crimes”; and noting that the New York County District Attorney’s office “agreed to make ... its recoveries available to other counties,” which allowed the other four District Attorneys—via a transfer of almost $14,000,000 from New York County—to recover current year budget cuts]).

        . Petitioners’ litigation strategy undercuts any argument that multiple-county jurisdiction works to a criminal defendant’s detriment. The net effect of obtaining prohibition here is that petitioners have willingly exposed themselves to prosecution in multiple counties. Specifically, New York County will continue prosecuting the 29 remaining counts of the indictment, and petitioners now face (as they conceded at oral argument) the prospect of prosecution elsewhere on the five tax-related counts.

      . The crime charged against petitioners—offering a false instrument for filing in the first degree—occurs when a person “knowing that a written instrument contains a false statement or false information, and with intent to defraud the state or any political subdivision, public authority or public benefit corporation of the state, . . . offers or presents it to a public office, public servant, public authority or public benefit corporation with the knowledge or belief that it will be filed with, registered or recorded in or otherwise become a part of the records of such public office, public servant, public authority or public benefit corporation” (Penal Law § 175.35). As the majority acknowledges, this statute is “intended to protect the integrity of governmental processes,” as called for in Fea to support extraterritorial jurisdiction (see Fea, 47 NY2d at 77; majority op at 37). In stark contrast, “[a] person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof” (Penal Law § 155.05 [1]). Criminal mischief of any degree is similarly bereft of any language protecting governmental processes, and simply calls for an “intent to damage property of another person” (Penal Law § 145.05).

      . Interestingly, the New York State Department of Taxation and Finance, which administers the New York City sales and use tax, has designated a location in New York County as the mailing address for filing all New York State and Local Quarterly Sales and Use Taxes Returns (see www.nystax.gov [Form ST-100]).

      . The majority has also encouraged New Yorkers to execute and mail their tax returns from out of state in order to minimize their exposure to prosecution for tax evasion.

      . The majority emphasizes that petitioners still face numerous other charges, some of which carry stiffer penalties than the tax-related counts at issue here (majority op at 32). This strikes us as irrelevant. The People should be allowed to pursue the full case against petitioners. This is surely what was intended by the Commission for Quality of Care, which brought these matters to the New York County District Attorney’s attention, and the New York State Department of Taxation and Finance, which recommended that the New York County District Attorney commence a grand jury investigation into petitioners’ possible tax crimes and false filings. Further, petitioners might face consecutive sentencing if convicted for falsely reporting income on separate years’ returns.


author: Ciparick, J.

text:
    [814 NE2d 784, 781 NYS2d 477]
    Anthony Abbatiello, Jr., et al., Appellants, v Lancaster Studio Associates et al., Respondents and Third-Party Plaintiffs-Respondents. Paragon Cable Manhattan, Inc., et al., Third-Party Defendants-Respondents.
    Argued June 2, 2004;
    decided July 1, 2004

      POINTS OF COUNSEL

      Raymond, Carey, P.C., Woodbury (Raymond Carey and John W. Dougherty of counsel), and Scheine, Fusco Brandstein & Rada, P.C., for appellants.
    I. Section 240 (1) of the Labor Law clearly applies to all owners (not expressly exempt) of property where work of the type described in the statute is being done. The imposition by the Appellate Division of a condition to such general application in the situation of the injured plaintiff here was erroneous and should be reversed. (Haimes v New York Tel. Co., 46 NY2d 132; Panek v County of Albany, 99 NY2d 452; Coleman v City of New York, 91 NY2d 821; Bland v Manocherian, 66 NY2d 452; Zimmer v Chemung County Performing Arts, 65 NY2d 513; Gordon v Eastern Ry. Supply, 82 NY2d 555; Adimey v Erie County Indus. Dev. Agency, 89 NY2d 836; Ceballos v Kaufman, 249 AD2d 40; Marchese v Grossarth, 232 AD2d 924, 89 NY2d 809; Otero v Cablevision of N.Y., 297 AD2d 632.) II. If this Court accepts the condition to property owners’ liability under the Labor Law applied by the lower courts in this case, such condition should be deemed as having been met under the circumstances present here. III. This Court should also reverse the Appellate Division’s alternate ruling that, as a matter of law, the work being done by the injured plaintiff at the time of his injury was not of a type protected by section 240 (1) of the Labor Law. Summary judgment should in fact be given to plaintiffs on the issue. (Prats v Port Auth. of N.Y. & N.J., 100 NY2d 878; Fuller v Niagara Mohawk Power Corp., 213 AD2d 986, 86 NY2d 708; Rocovich v Consolidated Edison Co., 78 NY2d 509; Panek v County of Albany, 99 NY2d 452; Gordon v Eastern Ry. Supply, 82 NY2d 555; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Joblon v Solow, 91 NY2d 457; Craft v Clark Trad

      ing Corp., 257 AD2d 886; Izrailev v Ficarra Furniture of Long Is., 70 NY2d 813.)

      Sherwin Rear, New York City, for respondents.
    I. An opportunity to affect work site safety is a necessary condition precedent to the imposition of liability on the owner of a building or structure when a worker has been injured due to a violation of Labor Law § 240 (1). (Hargobin v K.A.F.C.1. Corp., 282 AD2d 31; Coleman v City of New York, 91 NY2d 821; Gordon v Eastern Ry. Supply, 82 NY2d 555; Celestine v City of New York, 86 AD2d 592, 59 NY2d 938; Panek v County of Albany, 99 NY2d 452; Allen v Cloutier Constr. Corp., 44 NY2d 290; Haimes v New York Tel. Co., 46 NY2d 132; Zimmer v Chemung County Performing Arts, 65 NY2d 513; Blake v Neighborhood Hous. Servs., 1 NY3d 280; Kelly v Diesel Constr. Div. of Carl A. Morse, Inc., 35 NY2d 1.) II. Public Service Law § 228 does not impose constructive knowledge and consent on the building owner of maintenance of cable television facilities by the cable provider, and does not subject the owner to liability pursuant to Labor Law § 240 (1). (Piaquadio v Recine Realty Corp., 84 NY2d 967; Gordon v American Museum of Natural History, 67 NY2d 836.) III. At the time of his accident, appellant was engaged in routine maintenance not the repair or alteration of a building or structure. (Prats v Port Auth. of N.Y. & N.J., 100 NY2d 878; Joblon v Solow, 91 NY2d 457; Weininger v Hagedorn & Co., 91 NY2d 958; Esposito v New York City Indus. Dev. Agency, 1 NY3d 526; Smith v Shell Oil Co., 85 NY2d 1000.)

      Newman, Fitch, Altheim, Myers, P.C., New York City (Michael H. Zhu, Abraham S. Altheim and Steven N. Shapiro of counsel), for third-party defendants-respondents.
    I. Plaintiff cannot state a Labor Law § 240 (1) claim because defendant owners did not authorize or permit plaintiff to perform the injury-producing work. (Gordon v Eastern Ry. Supply, 82 NY2d 555; Mordkofsky v V.C.V. Dev. Corp., 76 NY2d 673; Brown v Christopher St. Owners Corp., 211 AD2d 441, 87 NY2d 938; Ceballos v Kaufman, 249 AD2d 40; Marchese v Grossarth, 232 AD2d 924; Copertino v Ward, 100 AD2d 565; Williams v LeChase, 196 Misc 2d 609; Sweeting v Board of Coop. Educ. Servs., 83 AD2d 103, 56 NY2d 503; Bateman v Susquehana Val. Cent. School Dist., 289 AD2d 852; Ogden v City of Hudson Indus. Dev. Agency, 277 AD2d 794.) II. Plaintiff cannot state a Labor Law § 240 (1) claim because he was not making a significant physical change to a building or structure. (Joblon v Solow, 91 NY2d 457; Weininger v Hagedorn & Co., 91 NY2d 958; DiBenedetto v Port Auth. of

      N.Y. & N.J., 293 AD2d 399; Yong Ju Kim v Herbert Constr. Co., 275 AD2d 709; Cullen v Uptown Stor. Co., 268 AD2d 327; Jani v City of New York, 284 AD2d 304; Hollosi v 340 E. 93rd St. Corp., 282 AD2d 651; Breeden v Sunset Indus. Park Assoc., 275 AD2d 726; Zuckerman v City of New York, 49 NY2d 557.) III. Since Lancaster Studio Associates did not own the cable television equipment plaintiff worked on, it cannot be liable as an “owner” under Labor Law § 240 (1). (Gordon v Eastern Ry. Supply, 82 NY2d 555; Celestine v City of New York, 86 AD2d 592; Bonghi v New York Tel. Co., 277 AD2d 893; Gancarz v New York Tel., 257 AD2d 645; Girty v Niagara Mohawk Power Corp., 262 AD2d 1012; Ray v Niagara Mohawk Power Corp., 256 AD2d 1070; Brennan v 3785 S. Park, 242 AD2d 929; Fuller v Niagara Mohawk Power Corp., 213 AD2d 986, 86 NY2d 708; Mangiameli v Galante, 171 AD2d 162; Loretto v Teleprompter Manhattan CATV Corp., 458 US 419.)
   OPINION OF THE COURT

Ciparick, J.

This case presents the question whether a building owner may be held strictly liable under Labor Law § 240 (1) for injuries sustained by a cable technician performing work on its property without its knowledge or consent. We conclude that, under the circumstances of this case, the cable technician does not come within the protections of the section.

Plaintiff Anthony Abbatiello was a cable television technician employed by third-party defendant Paragon Cable Manhattan, Inc. On August 12, 1995, Paragon dispatched plaintiff to a building owned by defendant Lancaster Studio Associates in response to the complaint of a tenant who was a cable service subscriber. Lancaster had no notice that plaintiff would be on its premises for any purpose.

While on the property, plaintiff rang the subscriber’s doorbell and attempted to enter the building—both to no avail. As he had previously done work at that location, plaintiff proceeded to identify the junction box that routed the cable signal into the subscriber’s apartment. The box was bolted on an exterior wall of the building, about 15 to 20 feet above ground level. To access the box, plaintiff placed a 20-foot extension ladder, which had been supplied by Paragon, against the side of the building. He climbed the ladder, equipped to take the cable box apart, diagnose and fix the problem. Following inspection, plaintiff determined that the defective signal was caused by water seeping into the junction box. However, before he could take any further action, the ladder bent, causing plaintiff to fall to the ground and injure himself.

Plaintiff later commenced this action against Lancaster and its individual partners alleging common-law negligence and violations of Labor Law §§ 200, 240 and 241. Lancaster brought a third-party action against Paragon, and Paragon counterclaimed. Lancaster moved for summary judgment dismissing the complaint and counterclaim, and Paragon separately sought dismissal of the complaint. Supreme Court granted both motions and dismissed the complaint in its entirety. The Appellate Division, with one Justice dissenting, affirmed, concluding that there could be no Labor Law § 240 (1) liability here both because the owner did not authorize or even know of plaintiff’s presence, and because the work being performed was routine maintenance (307 AD2d 788 [2003]). We now affirm on both grounds.

The Parties’ Relationship

In Blake v Neighborhood Hous. Servs. of N.Y. City (1 NY3d 280 [2003]), we recently reviewed the history and purposes of Labor Law § 240 (l). We reaffirmed the rule that an accident alone does not establish a Labor Law § 240 (1) violation, and that absolute liability requires a violation of the statute. We found no violation in Blake and likewise find no violation here.

We have consistently “observed that the purpose of the statute is to protect workers by placing ultimate responsibility for safety practices on owners and contractors instead of on workers themselves” (Panek v County of Albany, 99 NY2d 452, 457 [2003] [citations omitted]). Accordingly, the statute imposes absolute liability on owners and contractors for any breach of the statutory duty that proximately causes injury (see Blake, 1 NY3d at 287). To come within the special class for whose benefit absolute liability is imposed, a plaintiff must demonstrate that “he was both permitted or suffered to work on a building or structure and that he was hired by someone, be it [the] owner, contractor or their agent” (Whelen v Warwick Val. Civic & Social Club, 47 NY2d 970, 971 [1979]).

Following the Whelen line of precedent, the First Department has generally held that a cable technician called to a building by a tenant without the knowledge or consent of the owner is not an employee for purposes of Labor Law § 240 (1) and therefore is not afforded the protections of that statute against the owner (see Ceballos v Kaufman, 249 AD2d 40 [1st Dept 1998]). On the other hand, relying on Celestine v City of New York (86 AD2d 592 [2d Dept 1982], affd 59 NY2d 938 [1983]) and its progeny—Gordon v Eastern Ry. Supply (82 NY2d 555 [1993]) and Coleman v City of New York (91 NY2d 821 [1997])— the Second and Third Departments have held building owners strictly liable for the injuries of such workers on the ground that ownership alone may determine whether defendant is liable under section 240 (1). Persuaded by the distinctions between Celestine and its progeny and the facts presented here, we refuse to impose absolute liability on an owner where a cable technician is injured while performing work without the owner’s knowledge or consent.

Common to Celestine, Gordon and Coleman—and to all cases imposing Labor Law § 240 (1) liability on an out-of-possession owner—is some nexus between the owner and the worker, whether by a lease agreement or grant of an easement, or other property interest. Here, however, no such nexus exists. The injured plaintiff was on the owner’s premises not by reason of any action of the owner but by reason of provisions of the Public Service Law.

Public Service Law § 211 states the purpose of Public Service Law article 11—“to ensure that cable television companies provide adequate, economical and efficient service to their subscribers, the municipalities within which they are franchised and other parties to the public interest.” According to Public Service Law § 228 (l),

“No landlord shall (a) interfere with the installation of cable television facilities upon his property or premises, except that a landlord may require:
“(1) that the installation of cable television facilities conform to such reasonable conditions as are necessary to protect the safety, functioning and appearance of the premises, and the convenience and well being of other tenants.”

Plaintiff argues that, notwithstanding the mandatory access imposed by Public Service Law § 228 (1), Lancaster should be deemed an “owner” for purposes of Labor Law § 240 (1) as it maintained a degree of control over the work and would have knowledge—albeit constructive—that Paragon employees would be coming upon its property periodically to effectuate repairs at the request of tenant-subscribers. We disagree,

Lancaster is powerless to determine which cable company is entitled to operate, repair or maintain the cable facilities on its property, since such decision lies with the municipality—the franchisor (see Public Service Law § 219). The City of New York gave Paragon the franchise, and the right to install its cable facilities. This included the right to maintain and service its facilities at the premises free from interference after installation (see Loretto v Teleprompter Manhattan CATV Corp., 458 US 419, 439 [1982]). Neither did Lancaster incur liability for injury to a cable company employee by failing to exercise its right under the statute to require “reasonable conditions” for the protection of its property and tenants when the employee installs the cable (see Public Service Law § 228 [1] [a] [1]).

Lancaster cannot be charged with the duty of providing the safe working conditions contemplated by Labor Law § 240 (1) for cable television repair people of whom it is wholly unaware. Supreme Court correctly noted that, but for Public Service Law § 228, plaintiff would be a trespasser upon Lancaster’s property and Lancaster would neither owe a duty to plaintiff nor incur liability. Any permission to work on the premises was granted upon compulsion and no relationship existed between Lancaster and Paragon or the plaintiff.

Having found no nexus here, we conclude that plaintiff is not an employee for purposes of Labor Law § 240 (1) and that Public Service Law § 228 does not impose constructive notice on a building owner nor does it subject the owner to liability under Labor Law § 240 (1). We thus agree with Supreme Court that

“[t]he Public Service Law was enacted to secure the right of the tenant to have access to cable television services, not to impose unconditional liability upon a defenseless fee owner. The interpretation suggested by the plaintiff goes far beyond the scope of the language employed in each statute, so as to create a new liability with respect to cable service workers which was not envisioned by the Legislature.” (188 Misc 2d 665, 676 [2001].)

The Nature of the Work

We also agree with the Appellate Division that plaintiff, at the time of his accident, was involved in “the routine maintenance of a malfunctioning cable box and [the work] did not constitute ‘erection, demolition, repairing, altering, painting, cleaning or pointing of a building’ so as to fall within the protective ambit of Labor Law § 240 (1)” (307 AD2d 788, 789 [2003] [citations omitted]).

Plaintiff here was engaged in an activity similar to that of plaintiff in Esposito v New York City Indus. Dev. Agency (1 NY3d 526 [2003]), who was performing a monthly maintenance check on air conditioners located high off the ground. One unit appeared in need of repair, and plaintiff left and returned with tools and parts. As he climbed the ladder and began to remove the unit cover, the bottom of his ladder “kicked out” and he fell. We held that “[t]he work . . . involved replacing components that require replacement in the course of normal wear and tear. It therefore constituted routine maintenance and not ‘repairing’ or any of the other enumerated activities” (Esposito, 1 NY3d at 528). Likewise here, plaintiff determined that the cause of the defective signal was water in the tap, a common problem caused by rainwater accumulating in junction boxes affixed to building exteriors. The remedy would have been to loosen a few screws and drain the water from the tap and, if worn out, replace the tap. These activities constitute routine maintenance and not repair as contemplated by Labor Law § 240 (1).

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

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

Order affirmed, with costs.

      . Paragon has been succeeded by Time Warner Cable of New York City, Inc., and both are named as third-party defendants.

        . Labor Law § 240 (1) provides:
      “All contractors and owners and their agents ... in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.”

      . Former Executive Law § 828 (1)—in effect at the time of the accident.


author: Read, J.

text:
    [814 NE2d 789, 781 NYS2d 482]
    In the Matter of Charlene Polan, Appellant, v State of New York Insurance Department, Respondent.
    Argued June 1, 2004;
    decided July 1, 2004

      POINTS OF COUNSEL

      Stein & Schonfeld, Garden City (Robert L. Schonfeld and Seth P. Stein of counsel), for appellant.
    Insurance Law § 4224 (b) (2) applies to insurance policies limiting coverage on the basis of mental disability, and the courts below and the State Insurance Department erred in not applying the statute to the insurance policy at issue. (Matter of Theroux v Reilly, 1 NY3d 232; Matter of Raritan Dev. Corp. v Silva, 91 NY2d 98; Riley v County of Broome, 95 NY2d 455; Matter of Cahill v Rosa, 89 NY2d 14; Scheiber v St. John’s Univ., 84 NY2d 120; Crane Neck Assn, v New York City/Long Is. County Servs. Group, 61 NY2d 154; Sparkes v Morrison & Foerster Long-Term Disability Ins. Plan, 129 F Supp 2d 182; Matter of Yolanda D., 88 NY2d 790; Health Ins. Assn, of Am. v Harnett, 44 NY2d 302; People ex rel. Lewis v Safeco Ins. Co. of Am., 98 Misc 2d 856.)

      Eliot Spitzer, Attorney General, New York City (David Lawrence III and Michael S. Belohlavek of counsel), for respondent.
    I. All available indicia of legislative intent, including the plain language of Insurance Law § 4224 (b) (2), its legislative history, and insurance industry custom and practice, demonstrate that the statute is not intended to require parity in the level of benefits made available to the physically and mentally disabled. (Matter of Albano v Board of Trustees, 98 NY2d 548; Matter of Dworman v New York State Div. of Hous. & Community Renewal, 94 NY2d 359; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; Patrolmen’s Benevolent Assn, of City of N.Y. v City of New York, 41 NY2d 205; Matter of Tompkins County Support Collection Unit v Chamberlin, 99 NY2d 328; McNeil v Time Ins. Co., 205 F3d 179; El-Hajj v Fortis Benefits Ins. Co., 156 F Supp 2d 27; Riley v County of Broome, 95 NY2d 455; Equal Empl. Opportunity Commn. v Staten Is. Sav. Bank, 207 F3d 144; Rogers v Department of Health & Envtl. Control, 174 F3d 431.) II. The circumstances surrounding Insurance Law § 4224 (b) (2)’s enactment are wholly inconsistent with a legislative intent to require a parity of benefits to the mentally and physically disabled. (Equal Empl. Opportunity Commn. v CNA Ins. Cos., 96 F3d 1039; Equal Empl. Opportunity Commn. v Staten Is. Sav. Bank, 207 F3d 144.)

      New York Lawyers for the Public Interest, Inc., New York City
      (Marianne Engelman Lado, Pauline H. Yoo, James George Felakos and Janet L. Steinman of counsel), for Association of the Bar of the City of New York, amicus curiae.
    I. Insurance Law § 4224 (b) (2) prohibits discrimination in the provision of benefits on the basis of disability. (Feinstein v Bergner, 48 NY2d 234; Matter of Yolanda D., 88 NY2d 790; Chabner v United of Omaha Life Ins. Co., 994 F Supp 1185; Astoria Fed. Sav. & Loan Assn, v Solimino, 501 US 104; Matter of Binghamton GHS Empls. Fed. Credit Union v State Div. of Human Rights, 77 NY2d 12; Mowczan v Bacon, 92 NY2d 281; People v Sheppard, 54 NY2d 320; Matter of Hernandez v Barrios-Paoli, 93 NY2d 781; Arizona Governing Comm, for Tax Deferred Annuity & Deferred Compensation Plans v Norris, 463 US 1073.) II. The public policy of narrowly limiting the circumstances under which persons belonging to historically disfavored classes can be subject to disparate treatment is incorporated into the antidiscrimination provisions of the New York Insurance Law. (Scheiber v St. John’s Univ., 84 NY2d 120; Matter of Cahill v Rosa, 89 NY2d 14; Nevada Dept. of Human Resources v Hibbs, 538 US 721; Olmstead v L.C., 527 US 581; Hazen Paper Co. v Biggins, 507 US 604; School Bd. of Nassau County, Fla. v Arline, 480 US 273; Bragdon v Abbott, 524 US 624; Elaine W. v Joint Diseases N. Gen. Hosp., 81 NY2d 211; Lovejoy-Wilson v NOCO Motor Fuel, Inc., 263 F3d 208; Chabner v United of Omaha Life Ins. Co., 225 F3d 1042.) III. Petitioner-appellant’s reading of Insurance Law § 4224 (b) (2) as requiring that any distinctions in benefits based on mental disability must be supported by actuarial or experiential data is consistent with the Insurance Law and the State’s regulation of the insurance industry. (Blue Cross & Blue Shield of Cent. N.Y. v McCall, 89 NY2d 160; Matter of Binghamton GHS Empls. Fed. Credit Union v State Div. of Human Rights, 77 NY2d 12; Matter of Health Ins. Assn. of Am. v Corcoran, 154 AD2d 61; Health Ins. Assn. v Harnett, 44 NY2d 302.)
   OPINION OF THE COURT

Read, J.

Insurance Law § 4224 (b) (2) prohibits an insurer from limiting the coverage available to an individual on account of a physical or mental disability unless permitted by law or regulation and statistically or empirically justified. We are asked to decide whether a long-term disability plan open to both disabled and nondisabled employees on the same terms violates this provision by failing to afford equivalent coverage for mental and physical disabilities. For the reasons that follow, we conclude that it does not.

I.

Petitioner Charlene Polan’s employer provided its employees with a number of benefits, including short- and long-term disability insurance coverage. Under the group policy issued by the insurer to petitioner’s employer, coverage for physical disabilities extended until the disabled employee reached age 65 or the disability ceased. Coverage for disabilities caused by “mental and nervous disorders or diseases,” however, was limited to 24 months unless the disabled employee was hospitalized or institutionalized at the end of this time period, in which event benefits continued until the employee was no longer confined.

Petitioner suffers from a chronic psychiatric disability and has been unable to work since March 24, 1994. In February 1995, the insurer accepted and approved her claim for long-term disability benefits retroactive to September 16, 1994. Although petitioner continued to suffer from a psychiatric disability, her long-term disability benefits terminated after September 8, 1996 because of the 24-month limitation.

In June 2000, petitioner commenced an action against her employer and the insurer, alleging that the 24-month limitation violates Insurance Law § 4224 (b) (2). Supreme Court dismissed the action, determining that section 4224 (b) (2) does not provide a private right of action, and is more appropriately enforced by the Superintendent of Insurance of the State of New York.

Petitioner then filed a complaint against the insurer with the New York State Insurance Department. She protested that the insurer had violated section 4224 (b) (2) by “treat[ing] mental disability differently from other disabilities without actuarial or experiential basis.” The Department rejected petitioner’s complaint, agreeing with the insurer that section 4224 (b) (2) does not mandate equal benefits for mental and physical disabilities, and that petitioner was afforded the same benefits as all other employees participating in her employer’s group plan.

Petitioner then challenged the Department’s determination in this CPLR article 78 proceeding in Supreme Court. She sought vacatur of the rejection and an order directing the Department to consider whether the difference in duration of benefits for long-term physical and mental disabilities was supported by sound actuarial or experiential data. Concluding that the policy did not violate Insurance Law § 4224 (b) (2) by providing more extended coverage for physical disabilities than for mental disabilities, Supreme Court denied the petition and dismissed the proceeding. The Appellate Division, with two Justices dissenting, affirmed (3 AD3d 30 [1st Dept 2003]), and so do we.

II.

When interpreting a statute, we turn first to its text as the best evidence of the Legislature’s intent. As a general rule, a statute’s plain language is dispositive (see Riley v County of Broome, 95 NY2d 455 [2000]). Further, deference to an administrative agency’s “special competence or expertise” does not come into play where, as is the case here, we are called upon to decide a question of “pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent” (Matter of Gruber [New York City Dept. of Personnel— Sweeney], 89 NY2d 225, 231 [1996]).

Insurance Law § 4224 (b) (2) provides, in pertinent part, that

“(b) No insurer doing in this state the business of accident and health insurance[] . . . shall. . .
“(2) refuse to insure, refuse to continue to insure or limit the amount, extent or kind of coverage available to an individual, or charge a different rate for the same coverage solely because of the physical or mental disability, impairment or disease, or prior history thereof, of the insured or potential insured, except where the refusal, limitation or rate differential is permitted by law or regulation and is based on sound actuarial principles or is related to actual or reasonably anticipated experience” (emphasis added).

Nothing in this antidiscrimination provision requires an insurer to offer the same benefits for all ailments unless statistically or empirically justified.

Section 4224 (b) (2) proscribes limitations on coverage “solely because of’ a particular disability, rather than limitations on coverage “for” a particular disability (see McNeil v Time Ins. Co., 205 F3d 179, 184 n 5 [5th Cir 2000] [interpreting a Texas statute similar to Insurance Law § 4224 (b) (2) and stating that if “because of’ a disability meant “for” a disability, insurers would be required “to have an actuarial basis or past experience in support of every limitation on coverage for anything that could be construed as a handicap”]). Indeed, New York’s Insurance Law consistently refers to insurance coverage “for” an insured risk rather than “because of’ that risk (see e.g. Insurance Law § 1117 [f] [1] [“coverage for long term care services”]; § 3216 [i] [6]-[12] [“coverage for” followed by such insured risks as “in-patient hospital care,” “home care,” “preadmission tests,” “in-patient surgical care,” “maternity care,” “hospital, surgical or medical care,” “physician services” and “prescribed drugs”]; § 3234 [a] [added by L 1993, ch 731, § 69] [“coverage for hospital or medical expenses”]).

Thus, in order to discriminate against “an individual” and to do so “solely because of’ a disability, the insurer must somehow limit an individual’s coverage by reason of that individual’s disability. Here, the insurer did not adopt the 24-month limitation “solely because of’ petitioner’s mental disability; the limitation preceded her disability. Nor was petitioner otherwise discriminated against. She was eligible for the same long-term disability coverage at the same premium as were all other employees participating in her employer’s group plan (see McNeil, 205 F3d at 184 [“As long as (the insurer) offered (the plaintiff) the same policy it offered everyone else, (the insurer) has not violated (the antidiscrimination statute), even assuming it knew (the plaintiff) had AIDS”]).

Insurance Law § 4224 (b) (2) is similar to the antidiscrimination statutes of several other states, including Maine and Texas. Courts have generally declined to interpret these statutes to require equivalent coverages for mental and physical disabilities (see e.g. McNeil, 205 F3d 179 [2000], supra; Pelletier v Fleet Fin. Group, Inc., 2000 WL 1513711, *4, 2000 US Dist LEXIS 16456, *13 [D NH, Sept. 19, 2000] [holding that, although Maine’s antidiscrimination insurance statute requires insurers to provide coverage on the same terms and conditions to disabled and nondisabled persons unless sound actuarial evidence justifies different benefits, “(t)he statutory language . . . does not limit the kind of coverage that an insurer can offer”]; see also El-Hajj v Fortis Benefits Ins. Co., 156 F Supp 2d 27, 33 [D Me 2001] [holding that Maine’s antidiscrimination insurance statute “neither implies nor suggests that insurers must treat the mentally disabled in the same way that it treats the physically disabled”]).

Tellingly, the Legislature chose to place the antidiscrimination provision in Insurance Law article 42, which governs insurers, rather than in article 32, which mandates terms and conditions of insurance policies. For example, section 3221 provides that an insurance policy that “provides reimbursement for psychiatric or psychological services . . . [performed] by physicians, psychiatrists or psychologists” must, if requested by the policyholder, “provide the same coverage to insureds for such services when performed by a [certified] social worker” (Insurance Law § 3221 [Z] [4] [A]). Similarly, section 3221 provides that “[e]very group or blanket policy . . . which provides hospital, surgical or medical coverage shall include coverage for maternity care ... to the same extent that coverage is provided for illness or disease under the policy” (§ 3221 [k] [5] [A] [i]). Section 3221, unlike any provision in article 42, specifies coverage of various conditions or services, i.e., “the diagnosis and treatment of mental, nervous or emotional disorders or ailments” (§ 3221 [Z] [5] [A]); “the diagnosis and treatment of chemical abuse and chemical dependence” (§ 3221 [Z] [6] [A]); “equipment and supplies for the treatment of diabetes” (§ 3221 [k] [7] [A]); cancer screening (§ 3221 [Z] [11]); and nursing home care (§ 3221 [Z] [2]). The extensive list of statutorily mandated benefits in article 32 and the absence of any comparable list in article 42 cuts against petitioner’s argument that the Legislature intended section 4224 (b) (2) to require equivalent coverage for physical and mental disabilities.

III.

Section 4224 (b) (2) was enacted in 1994 (L 1994, ch 713) to expand the protections of Insurance Law § 3234, enacted the previous year (L 1993, ch 601) to prohibit insurers from refusing to issue a policy (or cancelling or declining to renew a policy) to an individual with a history of breast cancer (Governor’s Mem approving L 1993, ch 601, 1993 McKinney’s Session Laws of NY, at 2909). In approving the bill enacting section 3234, Governor Mario M. Cuomo observed that it was “too narrow in scope” because its protections were not afforded to survivors of other diseases (id.). Accordingly, he directed the Superintendent of Insurance and the Commissioner of Health to develop legislation to address the needs of the “situations overlooked” by the 1993 legislation (id. at 2910).

The following year, the Legislature enacted Insurance Law § 4224 (b) (2). In his approval memorandum, the Governor observed that the bill enacting this provision was intended to expand the access and eligibility protections of section 3234 to

“ensure that coverage and benefits are offered to all insureds on a non-discriminatory basis” (Governor’s Mem approving L 1994, ch 713, 1994 McKinney’s Session Laws of NY, at 3013). Likewise, Senator Dean G. Skelos, the bill’s Senate sponsor, stated in relevant part that

“this legislation amends section 4224 of the Insurance Law in regard to the eligibility for any life, health and disability insurance. Specifically, the bill prohibits insurance companies from unfairly discriminating by refusing to issue, renew, or limit the extent, amount or kind of coverage due to any physical or mental disability” (Bill Jacket, L 1994, ch 713, at 5 [first emphasis added]).

Assemblyman Charles O’Shea, the legislation’s Assembly sponsor, observed that the bill “not only prohibits] the refusal to issue or cancel a policy, but also prohibit[s] the limiting of benefits covered” (Sponsor’s Mem, Bill Jacket, L 1994, ch 713, at 8). As pointed out by the Department, the statute’s proscription against “limit[ing] the amount, extent or kind of coverage” in this context does not mean, as petitioner argues, that an insurer must provide the same benefits for all disabilities. Rather, section 4224 (b) (2) forbids an insurer from limiting coverage by providing less generous benefits to a disabled individual than to a nondisabled individual.

The National Association of Insurance Commissioners (NAIC) Model Regulation on Unfair Discrimination in Life and Health Insurance on the Basis of Physical or Mental Impairment, which section 4224 (b) (2) mirrors, further supports this view. Section 3 of the Model Regulation describes an act or practice constituting unfair discrimination by a life or health insurer as

“refusing to insure, or refusing to continue to insure, or limiting the amount, extent or kind of coverage available to an individual, or charging a different rate for the same coverage solely because of a physical or mental impairment, except where the refusal, limitation or rate differential is based on sound actuarial principles or is related to actual or reasonably anticipated experience” (4 NAIC Model Laws, Regulations and Guidelines, at 887-1 [July 1993]).

The Drafting Note to the Model Regulation makes it clear that

“[t]he regulation is not intended to mandate the inclusion of particular coverages, such as benefits for normal pregnancy, or of levels of benefits such as for mental illness, in a company’s policies or contracts. In virtually every state, mandates of any coverages or benefits are the subject of separate legislation. The model unfair trade practices act has never been interpreted to provide the basis for such mandates but rather to assure that such coverage and benefits as are offered by insurers are provided on a basis which is not unfairly discriminatory among individuals of the same class” (id. [emphasis added]).

Petitioner and the dissenting Justices contend that “there is no evidence that the . . . Legislature relied upon or endorsed the NAIC Drafting Note in enacting Insurance Law § 4224 (b) (2).” (3 AD3d at 39-40.) But in determining what the Legislature—which enacted the NAIC language almost verbatim— intended, it is reasonable to consider NAIC’s statement of the Model Regulation’s purpose. Notably, this statement is completely consistent with the statutory language.

In short, section 4224 (b) (2)’s legislative history belies any legislative intent to insure parity of benefits for mental and physical disabilities. Instead, section 4224 (b) (2) extended section 3234’s protections for individuals with a history of breast cancer to survivors of other diseases by insuring that a given insurance plan affords disabled and nondisabled individuals equal access to and eligibility for the same benefits.

IV

Finally, we find the federal courts’ analysis of analogous federal antidiscrimination provisions to be persuasive. The federal Courts of Appeals have repeatedly concluded that the Americans With Disabilities Act ([ADA] 42 USC § 12101 et seq.), which prohibits discrimination in employee benefits and public accommodations “because of . . . disability” (§ 12112 [a]; § 12182 [a]), does not mandate equivalent benefits for physical and mental disabilities (see e.g. Ford v Schering-Plough Corp., 145 F3d 601, 608 [3d Cir 1998] [“So long as every employee is offered the same plan regardless of that employee’s contemporary or future disability status, then no discrimination has occurred even if the plan offers different coverage for various disabilities”]; Equal Empl. Opportunity Commn. v CNA Ins. Cos., 96 F3d 1039, 1044 [7th Cir 1996] [observing that a 24-month limit for mental disability benefits “may or may not be an enlightened way to do things, but it (is) not discriminatory in the usual sense of the term”]; Krauel v Iowa Methodist Med. Ctr., 95 F3d 674, 678 [8th Cir 1996] [noting that excluding one disability from coverage is not a disability-based distinction violating the ADA so long as the exclusion applies equally to all individuals]; Parker v Metropolitan Life Ins. Co., 121 F3d 1006, 1015 [6th Cir 1997] [noting that “the ADA does not mandate equality between individuals with different disabilities”]; Kimber v Thiokol Corp., 196 F3d 1092, 1102 [10th Cir 1999] [adopting the reasoning of the other circuits and holding that “the ADA does not prohibit an employer from operating a long term disability benefits plan which distinguishes between physical and mental disabilities”]; Lewis v Kmart Corp., 180 F3d 166, 170 [4th Cir 1999] [holding that “the ADA does not require a long-term disability plan that is sponsored by a private employer to provide the same level of benefits for mental and physical disabilities”]; Weyer v Twentieth Century Fox Film Corp., 198 F3d 1104, 1116 [9th Cir 2000] [noting that “there is no discrimination under the (ADA) where disabled individuals are given the same opportunity as everyone else, so insurance distinctions that apply equally to all employees cannot be discriminatory”]).

Like these federal courts, we are unwilling to infer a legislative intent when to do so would upset longstanding industry practice. As the Second Circuit remarked in Equal Empl. Opportunity Commn. v Staten Is. Sav. Bank (207 F3d 144, 149 [2d Cir 2000]) “the historic and nearly universal practice inherent in the insurance industry [is to provide] different benefits for different disabilities.” Because an interpretation that Insurance Law § 4224 (b) (2) accords the parity of benefits sought by petitioner “would require far-reaching changes in the way the insurance industry does business,” we are “reluctant to infer such a mandate for radical change absent a clearer legislative command” (id.).

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

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

Order affirmed, with costs.

       Insurance Law § 1113 (a) (3) defines “accident and health insurance” to include, among other things, the disability insurance at issue in this appeal.


author: R.S. Smith, J.

text:
    [814 NE2d 795, 781 NYS2d 488]
    John N. Zegarelli et al., Respondents, v Gregory D. Hughes, Appellant.
    Argued June 3, 2004;
    decided July 1, 2004

      POINTS OF COUNSEL

      Sugarman Law Firm, LLP, Syracuse (Sherry R. Bruce of counsel), for appellant.
    I. The “full disclosure” language of CPLR 3101 (i) does not mandate submission of an original surveillance videotape in response to a general discovery demand. (DiNardo v Koronowski, 252 AD2d 69; Rotundi v Massachusetts Mut. Life Ins. Co., 263 AD2d 84; Falk v Inzinna, 299 AD2d 120; DiMichel v South Buffalo Ry. Co., 80 NY2d 184; Tai Tran v New Rochelle Hosp. Med. Ctr., 99 NY2d 383; McArthur v Wal-Mart Stores, 274 AD2d 378.) II. Preclusion of the surveillance videotape and investigator’s testimony caused irreparable harm requiring reversal and a new trial. (Tai Tran v New Rochelle Hosp. Med. Ctr., 99 NY2d 383; Noble v Ackerman, 252 AD2d 392.)

      Brindisi, Murad & Brindisi-Pearlman, LLP, Utica (Stephanie A. Palmer of counsel), for respondents.
    I. The language and intent of CPLR 3101 (i) mandate that there shall be full disclosure of all videotapes. (Falk v Inzinna, 299 AD2d 120; Matter of Theroux v Reilly, 1 NY3d 232; Kavanagh v Ogden Allied Maintenance Corp., 92 NY2d 952; DiMichel v South Buffalo Ry. Co., 80 NY2d 184; Noble v Ackerman, 252 AD2d 392; Lamagna v New York State Assn, for Help of Retarded Children, 222 AD2d 559; Schozer v William Penn Life Ins. Co. of N.Y., 84 NY2d 639.) II. The exclusion of the surveillance video and the investigator’s testimony was at best harmless error; therefore, defendant is not entitled to reversal or a new trial. (Khan v Galvin, 206 AD2d 776; Ateser v Becker, 272 AD2d 219.)
   OPINION OF THE COURT

R.S. Smith, J.

CPLR 3101 (i) provides that “[t]here shall be full disclosure of any films, photographs, video tapes or audio tapes” showing the activities of a party to litigation. We hold here that the “full disclosure” required by this statute is simply the disclosure normally required by the CPLR for relevant, non-privileged materials. More specifically, we hold that defendant here complied with his obligation to disclose a videotape by delivering a complete copy of the tape to plaintiffs counsel well in advance of trial. Defendant was not required, as a precondition to the tape’s admissibility, to furnish plaintiff with the original; it is sufficient that plaintiff had an opportunity to examine the original if he chose to do so.

This is an automobile accident case in which plaintiff John Zegarelli (plaintiff) sought recovery on the basis of a back injury that allegedly caused him significant pain and limited his daily activities. Plaintiff served demands for discovery requesting production, among other things, of “any and all video tapes . . . purporting to depict the Plaintiffs activities.” Subsequently, an investigator employed by defendant’s counsel videotaped plaintiff while he was shoveling snow. The taping was done with a handheld eight-millimeter camera. The investigator copied the eight-millimeter tape onto a VHS tape, which is convenient for display on a television screen.

On August 18, 2000, defendant’s counsel sent a VHS copy of the tape to plaintiffs counsel, with a cover letter saying: “Enclosed herewith please find a copy of a videotape depicting the plaintiff in the above matter which I recently received.” So far as the record shows, there was no more communication about this tape between the parties until the trial, which began more than a year later, on August 21, 2001.

At the trial, plaintiff testified about the limits on his activity resulting from his injury. He testified that after the accident he shoveled snow “very, very rarely.” Specifically asked by his counsel about “one occasion,” reflected on “a video,” he said: “I took two or three swipes of our parking area where we park our car, and I got out and I got the shovel, and I cleared off the little debris that was on the first step.”

Defendant called the investigator, who testified that he had observed plaintiff; that the exhibit shown to him was a copy of a videotape he had made of the observation; that the tape fairly and accurately showed what he had observed; and that the tape had not been edited at all. Plaintiffs counsel objected to the tape’s admissibility, saying: “I don’t know if the 8-millimeter correctly reflects what is on this tape because I haven’t had an opportunity to see it.” He admitted that he had seen the VHS copy of the tape.

Supreme Court sustained the objection on the ground that “[t]he original tape was not made available to the plaintiff by the defendant in anticipation of trial or during the discovery period.” Plaintiff later took advantage of this ruling, asking the jury in closing argument: “Where’s this phantom video? It’s not here, is it? What did that tell you?” The jury returned a verdict for plaintiff including a $55,000 award for pain and suffering, and judgment was entered accordingly.

The Appellate Division, one Justice dissenting, affirmed, stating that Supreme Court had “properly granted” preclusion of the videotape on the ground “that the original eight-millimeter surveillance tape of plaintiff had not been disclosed.” (303 AD2d 916, 917 [2003].) The Appellate Division also concluded that, if the exclusion of the videotape was error, the error was harmless. We granted leave to appeal, and now reverse.

CPLR 3101 (i) provides:

“In addition to any other matter which may be subject to disclosure, there shall be full disclosure of any films, photographs, video tapes or audio tapes, including transcripts or memoranda thereof, involving a person referred to in paragraph one of subdivision (a) of this section [i.e., a party or a party’s officer, director, member, agent or employee]. There shall be disclosure of all portions of such material, including out-takes, rather than only those portions a party intends to use. The provisions of this subdivision shall not apply to materials compiled for law enforcement purposes which are exempt from disclosure under section eighty-seven of the public officers law.”

This statute was enacted in response to our decision in DiMichel v South Buffalo Ry. Co. (80 NY2d 184 [1992]). The issue in DiMichel was whether surveillance videotapes obtained in anticipation of trial constituted trial preparation materials subject to a qualified privilege under CPLR 3101 (d) (2). We held that the statutory protection did attach, and approved Appellate Division holdings that the parties making the tapes need disclose “only those tapes which they planned to use at trial” (id. at 190). We also held it appropriate to provide “that surveillance films should be turned over only after a plaintiff has been deposed” (id. at 197).

Within a year of DiMichel, the Legislature enacted CPLR 3101 (i). That statute’s provision for disclosure of “all portions of such material, including out-takes, rather than only those portions a party intends to use” expressly overruled DiMichel’s holding on that subject. We held in Tai Tran v New Rochelle Hosp. Med. Ctr. (99 NY2d 383, 387-388 [2003]) that CPLR 3101 (i) also overruled “that aspect of DiMichel which allows defendants to withhold surveillance tapes until after a plaintiff has been deposed.” Tran made clear that the provision in CPLR 3101 (i) for “full disclosure” of surveillance tapes removed them from the protection of CPLR 3101 (d) (2), and put them on the same footing with other material discoverable under CPLR 3101 (a). Indeed, subdivision (i) tracks the language of subdivision (a), which states: “There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action. ...”

Section 3101 (i) went no further than this, however. It did not require parties making disclosure of surveillance tapes to be more forthcoming than they would with any ordinary discovery material. In the case of “documents and things”—a term that includes videotapes—a party’s obligation is “to produce and permit the party seeking discovery, or someone acting on his or her behalf, to inspect, copy, test or photograph” the items produced (CPLR 3120 [1] [i]). This section may be satisfied by telling the party seeking the discovery where the materials are and providing a reasonable opportunity for that party to look at them and make copies; but it is often more convenient, and very common, for counsel for the producing party to make copies and send them to the other side. Where that is done, it is understood that the originals must be available for inspection on request.

Here, defendant’s counsel followed this customary procedure when he sent a copy of the tape to plaintiffs counsel. His cover letter expressly disclosed that it was a “copy”—though in any event the recipient would be unlikely to assume that he was being sent the original. Plaintiff has not shown that the difference in format between the eight-millimeter original and the VHS copy was of any significance; but if plaintiffs counsel wanted to see the original, he had only to ask, and he had plenty of time— more than a year—to do so before trial. Defendant thus complied with his obligation to make “full disclosure” of the videotape, and Supreme Court and the Appellate Division erred in holding otherwise.

Plaintiff argues, in the alternative, that the tape was rightly excluded because defendant failed to authenticate it properly. As we read the record, the courts below did not base their rulings on that ground, but if they did, they erred, for there was nothing wrong with the authentication. Testimony from the videographer that he took the video, that it correctly reflects what he saw, and that it has not been altered or edited is normally sufficient to authenticate a videotape. Where the videographer is not called “testimony, expert or otherwise, may also establish that a videotape ‘truly and accurately represents what was before the camera’ ” (People v Patterson, 93 NY2d 80, 84 [1999], quoting People v Byrnes, 33 NY2d 343, 349 [1974]). If there was (as Supreme Court suggested) any discrepancy between the tape and the videographer’s description in a written report of what he saw, that would have been a proper matter for cross-examination.

Nor do we agree with the Appellate Division that the error in excluding the videotape was harmless. The tape shows plaintiff shoveling for about three minutes without obvious discomfort, though for much of that time he uses one hand to shovel, perhaps favoring his back. The tape may not be inconsistent with the existence of back pain, but it is flatly inconsistent with plaintiffs testimony that he “took two or three swipes . . . and . . . cleared off the little debris that was on the first step.” Admission of the tape also would have enabled defendant to attack the credibility of plaintiffs statement that he shoveled snow “very, very rarely”—i.e., that his doing so the day he was videotaped was a coincidence. And even apart from the tape’s relevance to plaintiffs credibility, its exclusion harmed defendant by enabling plaintiffs counsel to ask rhetorically, in closing argument: “Where’s this phantom video?” In short, we cannot conclude with confidence that plaintiff would have obtained the same verdict if the tape had been admitted into evidence.

Accordingly, the order of the Appellate Division should be reversed, with costs, and a new trial ordered.

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

Order reversed, etc.

       Mr. Zegarelli’s wife brought a derivative claim that is not relevant to this appeal.