author: Graffeo, J. Pigott, J.

text:
    [866 NE2d 439, 834 NYS2d 494]
    Chaskie J. Rosenberg, Appellant, v MetLife, Inc., et al., Respondents.
    Argued February 13, 2007;
    decided March 29, 2007

      POINTS OF COUNSEL

      Heller, Horowitz & Feit, EC., New York City (Maurice W. Heller, Jacob W. Heller, Allen M. Eisenberg and Evan R. Shusterman of counsel), for appellant.
    I. According a qualified privilege to statements in the Form U-5 is consistent with New York law. (Andrews v Gardiner, 224 NY 440; Toker v Pollak, 44 NY2d 211; Park Knoll Assoc. v Schmidt, 59 NY2d 205; Mihlovan v Grozavu, 72 NY2d 506; Shapiro v Health Ins. Plan of Greater N.Y., 7 NY2d 56; Baravati v Josephthal, Lyon & Ross, Inc., 28 F3d 704; Herzfeld & Stern v Beck, 175 AD2d 689; First Heritage Corp. v National Assn. of Sec. Dealers, Inc., 785 F Supp 1250; F.N. Wolf & Co. v Bowles, 160 Misc 2d 752; Cicconi v McGinn, Smith & Co., Inc., 27 AD3d 59.) II. The overwhelming weight of authority favors qualified immunity. (Fahnestock & Co., Inc. v Waltman, 935 F2d 512; Toker v Pollak, 44 NY2d 211; Acciardo v Millennium Sec. Corp., 83 F Supp 2d 413; Dawson v New York Life Ins. Co., 135 F3d 1158; Andrews v Prudential Sec., Inc., 160 F3d 304; Glennon v Dean Witter Reynolds, Inc., 83 F3d 132; Baravati v Josephthal, Lyon & Ross, Inc., 28 F3d 704; Dickinson v Merrill Lynch, Pierce, Fenner & Smith, Inc., 431 F Supp 2d 247; Prudential Sec., Inc. v Dalton, 929 F Supp 1411.)

      Proskauer Rose LLP, Newark, New Jersey (Steven E. Obus, Steven Yarusinsky and Steven H. Holinstat of counsel), for respondents.
    Statements required to be made on a Form U-5 are absolutely privileged against claims of defamation. (Herzfeld & Stern v Beck, 175 AD2d 689; Toker v Pollak, 44 NY2d 211; Wiener v Weintraub, 22 NY2d 330; Hessel v Goldman, Sachs & Co., 281 AD2d 247; Matter of Dunn v Ladenburg Thalmann & Co., 259 AD2d 544; Cicconi v McGinn, Smith & Co., Inc., 27 AD3d 59, 6 NY3d 807; Fahnestock & Co., Inc. v Waltman, 935 F2d 512; Matter of Spasiano [1717 Capital Mgt. Co.], 1 AD3d 902; Park Knoll Assoc. v Schmidt, 59 NY2d 205; Andrews v Gardiner, 224 NY 440.)

      Schlam Stone & Dolan LLP, New York City (David J. Katz of counsel), for Matthew N. Murray, amicus curiae.
    Statements made by an employer on a National Association of Securities Dealers employee termination notice (Form U-5) should be subject to a qualified privilege in a suit for defamation.

      Zamansky & Associates, LLC, New York City {Jacob H. Zamansky and Edward H. Glenn, Jr., of counsel), for National Employment Lawyers Association/New York, amicus curiae.
    Statements in the Form U-5 should be accorded only a qualified privilege. (Acciardo v Millennium Sec. Corp., 83 F Supp 2d 413; Baravati v Josephthal, Lyon & Ross, Inc., 28 F3d 704; Herzfeld & Stern v Beck, 175 AD2d 689; Cicconi v McGinn, Smith & Co., Inc., 27 AD3d 59; Toker v Pollak, 44 NY2d 211; Dawson v New York Life Ins. Co., 135 F3d 1158; Glennon v Dean Witter Reynolds, Inc., 83 F3d 132.)

      Orrick, Herrington & Sutcliffe LLP, New York City (Michael Delikat and Robert S. Whitman of counsel), for the Securities Industry and Financial Markets Association, amicus curiae.
    Statements on a Form U-5 should be absolutely privileged against defamation claims. (Cicconi v McGinn, Smith & Co., Inc., 27 AD3d 59; National Assn. of Sec. Dealers, Inc. v Securities & Exch. Commn., 431 F3d 803; Boice v Unisys Corp., 50 F3d 1145; Slotten v Hoffman, 999 F2d 333; Becker v Philco Corp., 372 F2d 771; Gulati v Zuckerman, 723 F Supp 353; McManus v McCarthy, 586 F Supp 302; Blum v Campbell, 355 F Supp 1220; Westfall v Erwin, 484 US 292; Boice v Unisys Corp., 50 F3d 1145.)

      Liddle & Robinson, L.L.P., New York City {Jeffrey L. Liddle and Ethan A. Brecher of counsel), amicus curiae.
    I. Brokerage firms misuse Forms U-5 to harm individual executives. (Cicconi v McGinn, Smith & Co., Inc., 27 AD3d 59, 6 NY3d 807; Herzfeld & Stern v Beck, 175 AD2d 689, 79 NY2d 914; Sawtelle v Waddell & Reed, 304 AD2d 103; Sawtelle v Waddell & Reed, Inc., 21 AD3d 820, 6 NY3d 750.) II. The law of New York fully supports a qualified privilege for defamatory communications on Forms U-5. (Toker v Pollak, 44 NY2d 211; Baravati v Josephthal, Lyon & Ross, Inc., 28 F3d 704; Dawson v New York Life Ins. Co., 135 F3d 1158; Cicconi v McGinn, Smith & Co., Inc., 27 AD3d 59, 6 NY3d 807; Herzfeld & Stern v Beck, 175 AD2d 689, 79 NY2d 914; Liberman v Gelstein, 80 NY2d 429; Shapiro v Health Ins. Plan of Greater N.Y., 7 NY2d 56; Purgess v Sharrock, 33 F3d 134; Horn v New York Times, 100 NY2d 85; Prudential Sec., Inc. v Dalton, 929 F Supp 1411.) III. The National Association of Securities Dealers provides no adequate remedy for a defamed employee to clear his professional reputation. (Prozeralik v Capital Cities Communications, 82 NY2d 466; Den Norske Ameriekalinje Actiesselskabet v Sun Print. & Publ. Assn., 226 NY 1.)
   OPINION OF THE COURT

Graffeo, J.

The United States Court of Appeals for the Second Circuit has asked us whether statements made by an employer on a National Association of Securities Dealers (NASD) employee termination notice (Form U-5) are subject to an absolute or qualified privilege in a defamation lawsuit. For the reasons that follow, we conclude that such statements are protected by an absolute privilege.

In 1997, defendant MetLife, Inc. hired plaintiff Chaskie Rosenberg to work as a financial service representative in MetLife’s All-Boro agency in Brooklyn. The All-Boro office primarily serviced the local Hasidic Jewish community and a majority of the agency’s employees, including plaintiff, were Hasidic Jews. MetLife audited the All-Boro agency in 1999 because of the agency’s acceptance of third-party checks for the payment of premiums for life insurance policies. According to MetLife, third-party payments can be indicative of speculative insurance practices and possible moneydaundering activities. After a subsequent audit in 2000, MetLife closed the All-Boro agency, concluding that such practices were continuing at the agency. Plaintiff and other All-Boro agency representatives were transferred to another office. In April 2003, MetLife terminated plaintiffs employment following another audit.

Upon termination of a registered representative, the NASD requires member firms to complete and file with the NASD a Uniform Termination Notice for Securities Industry Registration (Form U-5) within 30 days of dismissal and to provide a copy of the form to the employee (see NASD By-Laws, art Y § 3 [a]). The employer must explain the reasons for termination on the Form U-5. In addition, the form contains a number of disclosure questions that address whether the employee had been subject to criminal charges, customer complaints or an internal review for violating investment-related rules. If any of these inquiries is answered in the affirmative, a corresponding disclosure reporting page directs the employer to explain the nature of these allegations.

Consistent with these requirements, MetLife prepared a Form U-5 after plaintiffs dismissal and filed it with the NASD in May 2003. The form stated the following reason for plaintiffs termination: “AN INTERNAL REVIEW DISCLOSED MR[.] ROSENBERG APPEARED TO HAVE VIOLATED COMPANY POLICIES AND PROCEDURES INVOLVING SPECULATIVE INSURANCE SALES AND POSSIBLE ACCESSORY TO MONEY LAUNDERING VIOLATIONS.” MetLife also indicated that plaintiff had been under an internal review for violating investor-related rules in response to the relevant disclosure question. On the disclosure reporting page, MetLife restated this reason for termination.

Plaintiff commenced this action in federal court seeking damages for employment discrimination, fraudulent misrepresentation, breach of contract and libel against defendants MetLife, Inc., Metropolitan Life Insurance Company and MetLife Securities, Inc. (collectively, MetLife). Plaintiff alleged that MetLife terminated his employment because he is a Hasidic Jew. With respect to his libel claim, plaintiff asserted that MetLife’s statements on the Form U-5 were defamatory and made with malicious intent. After discovery, MetLife moved for summary judgment dismissing the complaint in its entirety.

The United States District Court for the Southern District of New York denied MetLife’s motion as to plaintiffs discrimination claims and a breach of contract cause of action, but granted the motion dismissing plaintiffs fraudulent misrepresentation and libel claims. The court held that, under New York law, MetLife’s statements on the Form U-5 were absolutely privileged. Following a trial on the remaining issues, the court dismissed plaintiffs contract claim and the jury found MetLife not liable on the discrimination claims.

On appeal, plaintiff contended that the District Court erroneously dismissed his libel claim on the basis that Form U-5 statements are absolutely privileged under New York law. The Second Circuit concluded that plaintiff presented an unsettled issue of New York law and certified a question to this Court: “Are statements made by an employer on an NASD employee termination notice (‘Form U-5’) subject to an absolute or a qualified privilege in a suit for defamation?” (453 F3d 122, 128 [2006].)

Plaintiff argues that a qualified, but not absolute, privilege attaches to statements made on a Form U-5. He submits that the filing of a Form U-5 is too remote from the NASD’s quasi-judicial functions to warrant the application of an absolute privilege and asserts that one of the purposes of the form is to provide member firms with background information about a prospective employee. MetLife counters that an absolute privilege should apply because the filing of a Form U-5 with the NASD is a preliminary step in a quasi-judicial process and because such a privilege best serves the public interest in encouraging full and truthful disclosure.

It is well settled that “[p]ublic policy mandates that certain communications, although defamatory, cannot serve as the basis for the imposition of liability in a defamation action” (Toker v Pollak, 44 NY2d 211, 218 [1978]). “When compelling public policy requires that the speaker be immune from suit, the law affords an absolute privilege, while statements fostering a lesser public interest are only [qualifiedly] privileged” (Liberman v Gelstein, 80 NY2d 429, 437 [1992]).

Communications that are protected by a qualified privilege are not actionable unless a plaintiff can demonstrate that the declarant made the statement with malice. Malice in this context has been interpreted to mean spite or a knowing or reckless disregard of a statement’s falsity (see id. at 437-438). Generally, a statement is subject to a qualified privilege when “it is fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of his own affairs, in a matter where his interest is concerned” (Toker, 44 NY2d at 219 [internal quotation marks and citation omitted]).

In contrast, an absolute privilege immunizes a communicant from liability in a defamation action. The absolute privilege generally is reserved for communications made by individuals participating in a public function, such as executive, legislative, judicial or quasi-judicial proceedings. This protection is designed to ensure that such persons’ “own personal interests — especially fear of a civil action, whether successful or otherwise — do not have an adverse impact upon the discharge of their public function” (id.; see also Park Knoll Assoc. v Schmidt, 59 NY2d 205, 209 [1983] [participants are granted immunity “for the benefit of the public, to promote the administration of justice, and only incidentally for the protection of the participants”]).

Although statements made during the course of a judicial or quasi-judicial proceeding are clearly protected by an absolute privilege “as long as such statements are material and pertinent to the questions involved,” we have indicated that the absolute privilege can extend to preliminary or investigative stages of the process, particularly where compelling public interests are at stake (Wiener v Weintraub, 22 NY2d 330, 331 [1968] [internal quotation marks and citations omitted]; see also Julien J. Studley, Inc. v Lefrak, 50 AD2d 162, 165 [2d Dept 1975], affd insofar as appealed 41 NY2d 881 [1977]). In Wiener, we held that a complaint letter accusing an attorney of misconduct that had been sent to the grievance committee of a bar association was absolutely privileged. We observed that the grievance committee functions as a quasi-judicial body through its investigation of complaints and administration of disciplinary proceedings. We also emphasized the strong policy reasons warranting the extension of an absolute privilege to such complaints:

“Assuredly, it is in the public interest to encourage those who have knowledge of dishonest or unethical conduct on the part of lawyers to impart that knowledge to a Grievance Committee or some other designated body for investigation. If a complainant were to be subject to a libel action by the accused attorney, the effect in many instances might well be to deter the filing of legitimate charges. We may assume that on occasion false and malicious complaints will be made. But, whatever the hardship on a particular attorney, the necessity of maintaining the high standards of our bar — indeed, the proper administration of justice — requires that there be a forum in which clients or other persons, unlearned in the law, may state their complaints, have them examined and, if necessary, judicially determined” (Wiener, 22 NY2d at 332).

A comparable public purpose is served by the NASD’s regulatory regime for the securities industry. The NASD is the largest self-regulatory organization (SRO) subject to US Securities and Exchange Commission (SEC) oversight, and is the only “national securities association” registered under section 15A of the Securities Exchange Act of 1934 (Exchange Act) {see 15 USC § 78o-3). As a securities association, the NASD is a quasi-governmental entity that has been delegated authority to enforce the requirements of the Exchange Act and is the primary regulator of the broker-dealer industry. In accordance with section 15A of the Exchange Act, the NASD has promulgated rules designed to prevent fraudulent practices and protect the investing public {see 15 USC § 78o-3 [b] [6]). Although the SEC has the power to regulate the NASD’s members, “as a practical matter the bulk of the day-to-day regulation is generally delegated to the [NASD]” (4 Hazen, Securities Regulation § 14.3 [3], at 127 [5th ed]). Indeed, SROs, like the NASD, have been described as “standing] in the shoes of the SEC because they perform regulatory functions that would otherwise be performed by the SEC” (DL Capital Group, LLC v Nasdaq Stock Mkt., Inc., 409 F3d 93, 95 [2d Cir 2005] [internal quotation marks and citation omitted]).

One of the NASD’s central responsibilities involves the investigation and adjudication of suspected violations of the SEC’s laws and regulations as well as the NASD’s own rules (see 15 USC § 78o-3 [b] [7], [8]). During the investigative stage of this quasi-judicial process, the NASD has the power to inspect and copy any books, records or accounts related to the investigation and may require individuals to testify under oath or provide information in writing (see NASD rule 8210). Disciplinary proceedings against registered representatives for securities violations may take place before a NASD hearing panel (see NASD rules 9213, 9221). Sanctions for violations include censures, fines, suspensions and expulsions (see NASD rule 8310). NASD disciplinary determinations are subject to SEC and judicial review (see 15 USC § 78s [d], [e]; § 78y [a] [1]).

The Form U-5 plays a significant role in the NASD’s self-regulatory process. Filing is mandatory within 30 days of termination of the registered representative and firms are subject to penalties should they fail to comply. Upon receipt of the Form U-5, the NASD routinely investigates terminations for cause to determine whether the representative violated any securities rules. The form “is often the first indication that the NASD receives regarding possible misconduct by members of the securities industry, and investigations of misconduct reported on the Form U-5 frequently lead to the initiation of disciplinary action by the NASD” (Wright, Form U-5 Defamation, 52 Wash & Lee L Rev 1299, 1304 [1995]). As such, the compulsory Form U-5 can be viewed as a preliminary or first step in the NASD’s quasi-judicial process. It is also designed to aid prospective member employers in researching the backgrounds of potential employees. To that end, the NASD requires a member firm to review an applicant’s most recent Form U-5 during the hiring process (see NASD rule 3010 [e]).

The public interests implicated by the filing of Forms U-5 are significant. The form is designed to alert the NASD to potential misconduct and, in turn, enable the NASD to investigate, sanction and deter misconduct by its registered representatives. The NASD’s actions ultimately inure to the benefit of the general investing public, which faces the potential for substantial harm if exposed to unethical brokers. Accurate and forthright responses on the Form U-5 are critical to achieving these objectives.

The Form U-5’s compulsory nature and its role in the NASD’s quasi-judicial process, together with the protection of public interests, lead us to conclude that statements made by an employer on the form should be subject to an absolute privilege. Analogously, close to 40 years ago in Wiener we determined that complaints involving attorneys should be accorded an absolute privilege because of “the necessity of maintaining the high standards of our bar” (Wiener, 22 NY2d at 332). The regulation of registered brokers in the securities industry is of no less importance. We further note that registered employees who are maliciously defamed on a Form U-5 are not wholly without remedy as they may commence an arbitration proceeding or court action to expunge any alleged defamatory language.

Accordingly, the certified question should be answered as follows: Statements made by an employer on a NASD employee termination notice are subject to an absolute privilege in a suit for defamation.

Pigott, J.

(dissenting). I respectfully dissent because I disagree with the majority’s holding that statements made by an employer on a Form U-5 are part of a quasi-judicial process and that the public interest is best served by affording the statements an absolute privilege. Rather, I would answer the certified question by stating that such statements are protected by a qualified privilege.

As a matter of public policy, an absolute privilege has been afforded in very few situations (see Park Knoll Assoc. v Schmidt, 59 NY2d 205 [1983]; see also Clark v McGee, 49 NY2d 613 [1980]). These situations have historically involved individuals participating in a public function, including judicial, legislative, or executive proceedings (see Toker v Pollak, 44 NY2d 211 [1978]). For example, in Wiener v Weintraub (22 NY2d 330 [1968]), we extended an absolute privilege to individuals who filed complaints to the Grievance Committee of the Association of the Bar of the City of New York. In affording such a privilege, we noted that complaints alleging professional misconduct by an attorney had once been presented to Supreme Court, but were now filed with the Grievance Committee of a bar association. By investigating such complaints and conducting disciplinary hearings, the bar association’s Grievance Committee acted as a quasi-judicial body and “an arm of the Appellate Division” (id. at 332).

Unlike the complaints in Wiener, statements made on a Form U-5 are not intended to be part of any court proceeding nor are they presented to a committee having attributes similar to a court. Rather, they are filed by an employer for the primary purpose of notifying the National Association of Securities Dealers’ (NASD) Central Registration Depository system of a change in an employee’s registration status. While the information on a Form U-5 could possibly trigger an investigation or even serve as evidence in a later disciplinary proceeding, the vast majority of the Forms, being merely informational, do not result in action on the part of any regulatory agency. There is no requirement that the NASD or the New York Stock Exchange (NYSE) take disciplinary action with respect to the information contained on a Form U-5. Indeed, in this case, there was no action taken by any agency that would provide Mr. Rosenberg with an opportunity to challenge the statements made on his Form U-5. Thus, the majority’s holding provides an absolute privilege to statements made on a Form U-5 where no judicial or even “quasi-judicial” proceeding is even contemplated. The submission of the Form simply does not represent a preliminary or investigative stage in any quasi-judicial process.

Nor does public policy require that statements made by employers on a Form U-5 be free from liability in a defamation action. When a defamatory statement is made on such a Form, there is the danger of substantial harm to the individual about whom the statement is made. Unlike statements made in a complaint to a grievance committee that are confidential, the Form U-5 is widely disseminated. Indeed, potential employers in the securities industry are required to review an individual’s Form U-5 during the hiring process (see NASD rule 3010 [e]). As a consequence, defamatory Form U-5 reporting can unfairly penalize a departing employee and prevent that employee from obtaining new employment or retaining existing customers. “[I]t is widely acknowledged that false Form U-5 reporting has sometimes been used to retaliate against departing employees or threatened to gain concessions from such employees” (Wright, Form U-5 Defamation, 52 Wash & Lee L Rev 1299, 1302 [1995]; see Baravati v Josephthal, Lyon & Ross, Inc., 28 F3d 704, 708 [7th Cir 1994] [“To insulate the (NASD) members from liability for the contents of their U-5s would be tantamount to allowing a member of the NASD to blackball a former employee from employment throughout the large sector of the industry that the membership of the association constitutes”]). Because of the serious personal and financial interests of the employee at stake, member firms should not be completely immune from all liability for defamatory Form U-5 statements.

The majority focuses on the fact that accurate and forthright responses on the Form U-5 are critical to the financial industry. However, it should be remembered that not only is truth a complete defense to a defamation claim (see Brian v Richardson, 87 NY2d 46 [1995]), but a qualified privilege offers strong protection as well. To overcome a qualified privilege, the employee would have the burden of showing that a statement is actionable because it was motivated by malice (see Toker, 44 NY2d at 219; Liberman v Gelstein, 80 NY2d 429 [1992]). Therefore, truthful and accurate statements on a Form U-5 would not give rise to defamation liability concerns.

Finally, affording statements made on a Form U-5 a qualified, rather than absolute, privilege would provide New York employees in the securities industry the same protections and rights afforded to brokers in other states and create a uniform standard to be applied (see e.g. Dawson v New York Life Ins. Co., 135 F3d 1158 [7th Cir 1998] [applying Illinois law]; Glennon v Dean Witter Reynolds, Inc., 83 F3d 132 [6th Cir 1996] [applying Tennessee law]; Eaton Vance Distribs., Inc. v Ulrich, 692 So 2d 915 [Fla Dist Ct App 1997]).

Because the Form U-5 is not a part of any judicial process, and given the serious potential damage to an employee’s reputation and business prospects, any communication associated with the Form is amply protected by a qualified rather than an absolute privilege.

Judges Ciparick, Read and Jones concur with Judge Graffeo; Judge Pigott dissents and votes to answer the certified question by stating that such statements are protected by a qualified privilege, in a separate opinion in which Judge Smith concurs; Chief Judge Kaye taking no part.

Following certification of a question by the United States Court of Appeals for the Second Circuit and acceptance of the question by this Court pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), and after hearing argument by counsel for the parties and consideration of the briefs and the record submitted, certified question answered as follows: Statements made by an employer on a NASD employee termination notice are subject to an absolute privilege in a suit for defamation.

      . Speculative insurance involves the purchase of a policy on the life of an insured as a form of investment by a third party with no insurable interest.

      . According to plaintiff, a number of the agency’s policyholders relied on a Gemach, a Jewish free loan society, to help them meet their premium payments, resulting in the use of third-party checks to make premium payments.

      . The NASD stores the Form U-5 on its Central Registration Depository (CRD), an on-line registration and licensing database used by regulators throughout the securities industry to register, license and regulate securities firms and their brokers. Through one component of the CRD called “Broker-Check,” the NASD allows investors to obtain certain information about individual brokers and registered securities firms. General information, such as a broker’s current employer and 10 years of employment history, is available online to the public. Upon specific request, the NASD will release “disclosure information” — information pertaining to criminal actions, civil actions, customer complaints and securities-related terminations for cause — via mail or e-mail within two days of the request. The NASD gathers such disclosure information from the information provided by the individual broker on the Form U-4 (the Uniform Application for Securities Industry Registration or Transfer), not from a former employer’s Form U-5 (see NASD Interpretive Material [EM] 8310-2). A Form U-4 must be completed when a broker initially seeks to register with the NASD or when a terminated broker reregisters upon obtaining employment with a new securities firm.
      Certain information found on a terminated employee’s Form U-5 can appear on BrokerCheck indirectly through the employee’s responses to questions on the Form U-4. For example, question 14J of the Form U-4 requires a broker to state whether he or she has been discharged after allegations were made accusing the broker of “violating investment-related statutes, regulations, rules, or industry standards.” The Form U-4 also contains a disclosure reporting page that corresponds to question 14J. The disclosure reporting page directs the broker to detail the allegations made by the prior employer (on the Form U-5) and allows the broker to rebut or comment on the termination. The Form U-4 statements, in turn, are subject to disclosure to investors through BrokerCheck. The NASD further provides a procedure for brokers to seek ex-pungement of defamatory statements contained in the CRD.

      . In October 2003, plaintiff filed a Form U-4 with the NASD upon obtaining new employment. In response to question 14J, plaintiff indicated that he previously had been discharged after having been accused of violating investment-related laws. On the related disclosure reporting page, plaintiff repeated verbatim the statement MetLife made on its Form U-5. In response to the allegation, plaintiff wrote:
      “I WAS TERMINATED ON ACCOUNT OF CERTAIN ALLEGED VIOLATIONS OF METLIFE POLICY REGARDING THIRD PARTY CHECKS, THIRD PARTY PAYORS AND CHARITABLE GIFTS. EACH OF THESE CHARGES WHICH METLIFE HAS CLAIMED LED TO MY TERMINATION IS COMPLETELY UNTRUE, WHICH MY ATTORNEYS HAVE CATEGORICALLY DEMONSTRATED TO METLIFE FOLLOWING MY TERMINATION. IN FACT, I HAVE STRONG REASON TO BELIEVE THAT I WAS TERMINATED SOLELY ON ACCOUNT OF THE FACT THAT I AM A HASSIDIC JEW”
      These statements apparently became available to the investing public upon request, through BrokerCheck, in October 2003.

      . The NASD currently oversees the activities of over 5,000 brokerage firms and more than 660,000 registered securities representatives (see About NASD <http://www.nasd.com/AboutNASD/index.htm> [last updated Mar. 5, 2007]). Other SROs, such as the New York Stock Exchange and the American Stock Exchange, are registered as national securities exchanges under section 6 of the Exchange Act (see 15 USC § 78f).

      . Members who refuse to comply with the NASD’s requests are subject to suspension (see NASD rule 9552).

      . We acknowledge that, unlike the complaint letter in Wiener — which was subject to the confidentiality requirements of Judiciary Law § 90 (10) — statements made on a Form U-5 are reviewed by prospective employers, and may indirectly become available to the investing public via the NASD’s Broker-Check program. But we do not read the confidentiality aspect as dispositive in Wiener and we believe an absolute privilege better serves the substantial public interests promoted by the NASD regulatory scheme.

      . The filing of a Form U-5 is unlike a complaint issued pursuant to the NASD Code of Procedure (rule 9000 series), which governs proceedings for disciplining a member or person associated with a member (see NASD rule 9211 [a]). A “disciplinary proceeding shall begin when the complaint is served and filed” (see rule 9211 [b]).

      . As the majority points out, one of the responsibilities of the NASD is to investigate and adjudicate suspected violations of the Securities and Exchange Commission’s (SEC) laws and the NASD’s rules. Although this function could fairly be described as quasi-judicial, the NASD has only a limited immunity from defamation in the context of reporting its findings (see 15 USC §§ 78o-3, 78iii [b] [no liability if reporting made in “good faith”]).

      . The fact that Mr. Rosenberg could have commenced an arbitration proceeding or a court action to expunge the alleged defamatory language, as noted by the majority, is only further proof that the Form U-5 is not part of any quasi-judicial process. If the Form U-5 were part of a quasi-judicial process, then an expungement action would be entirely unnecessary. Indeed, a costly expungement action is often the only means by which an employee may challenge defamatory statements made on a Form U-5.

      . In Wiener, we noted that any risk of prejudice for statements made in a complaint to a grievance committee was completely “eliminated” because such complaints are deemed “private and confidential” (see Wiener, 22 NY2d at 331, quoting Judiciary Law § 90 [10]).


source: Caselaw Access Project

author: Ciparick, J. Pigott, J.

license: Public Domain

text:
    [865 NE2d 1228, 834 NYS2d 62]
    328 Owners Corp., Appellant, v 330 West 86 Oaks Corp. et al., Respondents, and City of New York, Appellant.
    Argued February 13, 2007;
    decided April 3, 2007

      POINTS OF COUNSEL

      Herrick, Feinstein LLP, New York City (Scott E. Molten, Patricia M. Graham and John P. Sheridan of counsel), for 328 Owners Corp., appellant.
    I. Plaintiff, as an adjoining property owner, has standing to prosecute this action. (Society of Plastics Indus. v County of Suffolk, 77 NY2d 761; Matter of Lee v New York City Dept. of Hous. Preserv. & Dev., 212 AD2d 453; Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69 NY2d 406; Nature Conservancy v Congel, 253 AD2d 248.) II. The Appellate Division erred in failing to uphold the deed’s restrictions on the use of the property. (Post v Weil, 115 NY 361; Suffolk Bus. Ctr. v Applied Digital Data Sys., 78 NY2d 383; Munro v Syracuse, Lake Shore & N. R.R. Co., 200 NY 224; McGrane v Wiener, 268 App Div 789; Jennings Beach Assn. v Kaiser, 145 AD2d 607; Booth v Knipe, 225 NY 390; Matter of Board of Commrs. of Washington Park of City of Albany, 52 NY 131; Johnson v Shelter Is. Grove & Camp Meeting Assn., 122 NY 330; Hoppough v Struble, 60 NY 430; New York &

      Brooklyn Suburban Inv. Co. of N.Y. v Leeds, 100 Misc 2d 1079.) III. The court below erred in failing to hold that the statutory and project summary use restrictions applied to the developer. (Arroyo v Rosenbluth, 115 Misc 2d 655; Rubel Bros., Inc. v Dumont Coal & Ice Co., Inc., 200 App Div 135; Hodge v Sloan, 107 NY 244; Neponsit Prop. Owners’ Assn. v Emigrant Indus. Sav. Bank, 278 NY 248; City of New York v Delafield 246 Corp., 236 AD2d 11; Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69 NY2d 406.)

      Michael A. Cardozo, Corporation Counsel, New York City (Tahirih M. Sadrieh, Edward F.X. Hart and Warren Shaw of counsel), for City of New York, appellant.
    I. The deed limits the use of the subject property to conservation. (Jennings Beach Assn. v Kaiser, 145 AD2d 607; Rydberg v Jennings Beach Assn., 69 AD2d 816; Malley v Hanna, 65 NY2d 289; Booth v Knipe, 225 NY 390; McGrane v Wiener, 268 App Div 789; Suffolk Bus. Ctr. v Applied Digital Data Sys., 78 NY2d 383; Medical Coll. Lab. v New York Univ., 178 NY 153; Phoenix Ins. Co. v Continental Ins. Co., 87 NY 400; Bannin v Peck, 266 App Div 209, 291 NY 717; Trump Vil. Section 3 v New York State Hous. Fin. Agency, 292 AD2d 156, 98 NY2d 671.) II. If the deed is interpreted as not requiring compliance with the project, then it is invalid. (Lipton v Bruce, 1 NY2d 631; Morrison v Piper, 77 NY2d 165; Granada Bldgs. v City of Kingston, 58 NY2d 705; Henry Modell & Co. v City of New York, 159 AD2d 354; D’Angelo v Cole, 67 NY2d 65; Matter of Signacon Controls v Mulroy, 32 NY2d 410; Matter of Ross v Wilson, 308 NY 605; Cameron Estates, Inc. v Deering, 308 NY 24; Town of Brookhaven v Aronauer, 65 AD2d 570; Gladsky v City of Glen Cove, 164 AD2d 567.) III. The provisions of the Urban Development Action Area Act must be construed into the deed. (Matter of Lade v Abbott, 185 Misc 501.) IV The restrictive covenant meets the requirements of a covenant running with the land. (Neponsit Prop. Owners’ Assn. v Emigrant Indus. Sav. Bank, 278 NY 248; Chambers v Old Stone Hill Rd. Assoc., 1 NY3d 424; Malley v Hanna, 65 NY2d 289; Booth v Knipe, 225 NY 390; City of New York v Delafield 246 Corp., 236 AD2d 11.) V. The covenant is effective against the new owner as a party taking with notice. (Witter v Taggart, 78 NY2d 234; Buffalo Academy of Sacred Heart v Boehm Bros., 267 NY 242; Hodge v Sloan, 107 NY 244; Farrell v Sitaras, 22 AD3d 518; Webster v Ragona, 7 AD3d 850; 487 Elmwood v Hassett, 83 AD2d 409.)

      Edward B. Safran, New York City, for 330 West 86th Street, LLC, respondent.
    I. The Urban Development Action Area Act does not condition a conveyance on a permanent land use restriction; accordingly no such restriction should be read into a deed conveying property pursuant to the procedural requirements of the act where the deed contains no express restrictive covenant. (D’Angelo v Cole, 67 NY2d 65; Sega v State of New York, 60 NY2d 183; Alweis v Evans, 69 NY2d 199; Margulis v Lindsay, 31 NY2d 167.) II. The deed contains no restrictive covenant limiting the manner in which the property may be used; no such covenant may be implied, nor may the deed be reformed to include such a covenant. (Jennings Beach Assn. v Kaiser, 145 AD2d 607; Post v Weil, 115 NY 361; 67 Wall St. Co. v Franklin Natl. Bank, 37 NY2d 245; Adler v Simpson, 203 AD2d 691; Matter of Hamilton St., 144 App Div 702; Grafton v Moir, 130 NY 465; Val-Kill Co., Inc. v Cities Serv. Oil. Co., 278 App Div 164; West, Weir & Bartel v Mary Carter Paint Co., 25 NY2d 535; Huggins v Castle Estates, 36 NY2d 427; Bear Mtn. Books v Woodbury Common Partners, 232 AD2d 595, 90 NY2d 808.)
   OPINION OF THE COURT

Ciparick, J.

The issue in this case is whether land use restrictions as set forth in article 16 of the General Municipal Law and referenced in the recitals of a deed to real property can be enforced against a successor grantee. We hold that under the circumstances presented here, they can.

The subject property, located at 330 West 86th Street in Manhattan, came into municipal ownership through an in rem tax foreclosure proceeding. The property consists of a five-story townhouse, constructed around 1900, which serves as an eight-unit multiple dwelling. The building, upon entering the City’s inventory, had many municipal code violations and “was in deteriorated condition and in need of rehabilitation.” The City, through the Asset Sales Program of the Department of Housing Preservation and Development (HPD), determined that the status of the building “tended to impair or arrest the sound growth and development of the municipality” and that its otherwise marketable condition rendered it ripe for disposition as an Urban Development Action Area Project (UDAAP) as governed by the Urban Development Action Area Act (UDAAA), article 16 of the General Municipal Law.

When HPD seeks to sell one of its properties under this program, it offers the occupant tenants the right of first refusal to purchase the property at an appraised value, as it did here. This is contingent on the tenants agreeing to remove all city code violations and hazardous conditions, and maintaining the existing tenants’ rent at its current amount for two years. If the tenants are unwilling or unable to purchase the property, HPD places the property on the open market, generally selling the premises to the highest bidder.

The subject property was appraised at $340,000 based on the capitalization of its income. Thus, HPD sent letters to each of the building’s tenants giving them an option, through June 30, 1998, to submit an offer to purchase the premises. The letters informed the tenants that negotiation of the sale was subject to various other conditions, including that the prospective purchasers could not have previously owned the building and that “[t]he sale of the Building is subject to approval by the City Council and the Mayor, and to all other applicable requirements of law.” On June 29, 1998, the tenants submitted a letter to HPD offering to purchase the premises, complete with supporting documentation indicating that they were able to meet HPD’s additional requirements. By correspondence dated December 28, 1998, HPD notified the tenants that it was prepared to enter into negotiations. The tenants then formed a corporation, 330 West 86 Oaks Corp. (Oaks Corp) for the purpose of taking title to the property.

In the interim, on January 26, 1999, HPD requested that the City Council make the necessary findings for conveyance of the property as an accelerated UDAAP pursuant to General Municipal Law § 695 (2) (b) and (6) (d). That same day, HPD also submitted a request for authorization of the disposition of the property from the Office of the Mayor. Attached to each request was a copy of the “Project Summary” that described the type of project as “Conservation.”

Specifically, HPD asked that the City Council:

“Find that the present status of the Disposition Area tends to impair or arrest the sound growth and development of the municipality and that the proposed [UDAAP] is consistent with the policy and purposes of Section 691 of the General Municipal Law; . . .
“Waive the area designation requirement of Section 693 of the General Municipal Law pursuant to Section 693 of the General Municipal Law; . . .
“Waive the requirements of Sections 197-c and 197-d of the Charter pursuant to Section 694 of the General Municipal Law; and . . .
“Approve the project as an [UDAAP] pursuant to Section 694 of the General Municipal Law.”

In making these requests, HPD confirmed that “the Project . . . consists solely of the rehabilitation or conservation of existing private or multiple dwellings or the construction of one to four unit dwellings, and does not require any change in land use permitted under the New York City Zoning Resolution” (Council of City of NY Resolution No. 673 [Mar. 16, 1999]).

In order to approve a proposal, the City Council must find that the current status of the building “tends to impair or arrest the sound growth and development of the municipality,” and that the proposed UDAAP is “consistent with the policy and purposes stated in section six hundred ninety-one” (General Municipal Law § 694 [4] [a], [c]). Although generally, any City Council approval must be made “in conformance with the standards and procedures required for all land use determinations pursuant to general, special or local law or charter,” the land use review procedures, as well as the area designation requirement (General Municipal Law § 693), can be waived “if the proposed urban development action area project consists solely of the rehabilitation or conservation of existing private or multiple dwellings or the construction of one to four unit dwellings without any change in land use permitted by local zoning” (General Municipal Law § 694 [5]). Here, HPD sought such waiver from the provisions of New York City Charter §§ 197-c and 197-d, which would have otherwise required compliance with the Uniform Land Use Review Procedure (ULURP) and additional City Council review.

After a public hearing in March 1999, the City Council made the requisite findings, approved HPD’s requests and directed that the “Project shall be disposed of and developed upon the terms and conditions in the Project Summary that HPD has submitted to the Council.” Shortly thereafter, the Mayor approved the designation of Oaks Corp as a qualified and eligible sponsor and authorized the conveyance of the subject premises to Oaks Corp based on the City Council Resolution. On June 22, 1999, the City sold the subject premises to Oaks Corp for $340,000.

The deed conveying the property includes several recitals, a granting and a habendum clause. Referenced in and made a part of the deed is a description of the disposition area, the City Council Resolution approving the UDAAP (including the Project Summary) and the Mayoral approval. The deed, in its entirety, contains numerous references in the recitals to the property’s UDAAP designation, and to the parties’ required compliance with the UDAAA’s requirements. It states that the City Council has waived the General Municipal Law § 693 area designation as well as City Charter § 197-c’s requirements under General Municipal Law § 694, and approved the project as an UDAAP In addition, the deed recites:

“WHEREAS, the project to be undertaken by Sponsor (‘Project’) consists solely of the rehabilitation or conservation of existing private or multiple dwellings or the construction of one to four unit dwellings without any change in land use permitted by existing zoning . . . .”

However, the language employed in the habendum clause of the deed is not as precise. It fails to explicitly reference the above use restriction on the property but rather states that the project sponsor accepts “the Disposition Area [the property conveyed] subject to . . . [t]he provisions of all laws, codes, statutes, ordinances, acts, rules and regulations of any local, state or federal government . . . existing at the time of delivery of this deed.” It additionally sets forth two affirmative obligations on the part of the sponsor: the duty to remedy all building violations of record within six months, and to maintain existing tenants’ rents at a fixed rate for two years. The habendum clause also declares that:

“The agreements and covenants set forth in this Deed shall run with the land and shall be binding to the fullest extent permitted by law and equity. Such covenants shall inure to the benefit of the City and shall bind and be enforceable against Sponsor and its successors and assigns.”

Significantly, Oaks Corp never corrected the code violations. Rather, on February 13, 2001, it sold the premises to 330 West 86th Street, LLC (330 West) for $1 million. This new owner allegedly plans to demolish the building and develop a high-rise “sliver” apartment building in its place. In anticipation of the sale to 330 West, plaintiff 328 Owners Corp. — the owners of an adjacent building which shares a party wall — filed a summons and complaint, naming Oaks Corp and the City as defendants, challenging the pending conveyance. It also filed a lis pendens against the property. The new owner, 330 West, purchased the property with notice of the pending lawsuit and the Us pendens. After the sale, plaintiff amended its complaint to name 330 West as an additional defendant. The first two causes of action sought a declaratory judgment that the deed restricts the use of the land and that the new owner and any successors or assigns must act within those constraints and also sought injunctive relief. A third cause of action sought to declare the City’s conveyance to Oaks Corp null and void.

Supreme Court dismissed the third cause of action as barred by the statute of limitations. The City then asserted two cross claims. The first sought a declaration that under the deed and related statutory requirements, the subject premises could only be used for conservation purposes, or in the alternative, for the rehabilitation or conservation of existing private or multiple dwellings or construction of one to four unit multiple dwellings. The second cross claim sought to permanently enjoin the owner and any successors from using the premises except in compliance with the above-referenced uses. 330 West also filed a counterclaim against plaintiff regarding its filing of a notice of pendency against the subject premises. The parties all moved for summaiy judgment.

Supreme Court dismissed all claims against Oaks Corp. The court denied 330 West’s motion for summary judgment and partially granted the City and plaintiffs motions for summary judgment against 330 West, declaring that the subject property “may not be used other than for (a) rehabilitation or conservation of the existing building thereon, or (b) construction of one to four unit dwellings without any change in land use.” All aggrieved parties appealed.

In the interim, the City sought leave to reargue alleging that Supreme Court overlooked the City’s contention that the use of the property should be limited to conservation only. The City further asked that the order be resettled to reflect that the use restrictions should run with the land. 328 Owners Corp. joined in support of the motion. Supreme Court denied reargument but granted the resettlement application and declared that the use restrictions run with the land.

The Appellate Division, in a divided opinion, reversed and granted summary judgment to 330 West holding that there was no intent by the original parties to the deed that the covenant run with the land nor did it touch and concern the land. The dissenting justices voted to affirm Supreme Court, reasoning that the parties’ intent, in light of the UDAAA, was clear, and that to read the deed otherwise would undermine the purpose of the UDAAA. The City and 328 Owners Corp. both appeal as of right pursuant to CPLR 5601 (a). Both appellants ask this Court to hold that the deed be read in conjunction with article 16 of the General Municipal Law and to enforce the land use restrictions as running with the land. The City also requests that we further limit the use of the property to conservation purposes. We now reverse and reinstate the amended order and judgment of Supreme Court.

Defendant, 330 West, in support of its claim that it is not subject to the land use restrictions of article 16 of the General Municipal Law, places great emphasis on the covenants restricting the property’s use being located in the recital provisions of the deed rather than the habendum clause. While it is true that the habendum clause is generally the best depiction of an interest conveyed, the inquiry is not that narrow (see e.g. Phoenix Ins. Co. v Continental Ins. Co., 87 NY 400, 407 [1882] [placement of a restrictive covenant outside the habendum clause did not undermine its enforceability]; Suffolk Bus. Ctr. v Applied Digital Data Sys., 78 NY2d 383, 388 [1991] [no particular words are determinative to give meaning to a condition of conveyance]; Wasil v Realty Dealership Co., 87 AD2d 931, 932 [3d Dept 1982] [it may be necessary to examine the “interrelationship between the recital and operative clauses” to be sure that the “intent is evidenced from a reading of the whole instrument”]). Rather, “[e]very instrument creating [or] transferring ... an estate or interest in real property must be construed according to the intent of the parties, so far as such intent can be gathered from the whole instrument, and is consistent with the rules of law” (Real Property Law § 240 [3]; cf. Post v Weil, 115 NY 361, 369-372 [1889]; see also 4 Warren’s Weed, New York Real Property, Deeds § 37.02 [5th ed] [“Courts today de-emphasize the formal parts of a deed and hold, in the construction of deeds, that the language of a deed must be so interpreted and applied as to be meaningful and valid, and the intent of the parties, as evidenced by the deed and the circumstances surrounding the making thereof, must be given expression wherever it is possible to do so without violating law and reason”]).

Looking to the whole instrument, inclusive of the City Council and Mayoral approvals as well as the Project Summary, there are 28 references to the project being governed by its UDAAP status. The deed and City Council and Mayoral approvals all make reference to the sale of the property as an accelerated UDAAP — a designation permissible only when the property’s use is restricted by the limitations set forth in General Municipal Law §§ 693 and 694 (5) — the very restriction that is spelled out in the recital provisions on the first page of the deed limiting the land’s use to conservation, rehabilitation or construction of one to four unit multiple dwellings. These references are consistent with General Municipal Law § 695 (5)’s requirement that the deed “shall contain provisions insuring the use of such real property for purposes consistent with such [UDAAP].” The habendum clause further states:

“The agreements and covenants set forth in this Deed shall run with the land and shall be binding to the fullest extent permitted by law and equity. Such covenants shall inure to the benefit of the City and shall bind and be enforceable against Sponsor and its successors and assigns.”

This clause is not limited to covenants that are set forth in the habendum clause but covers any such covenants discernible from the deed in its entirety and further dictates that they shall “run with the land” and “inure to the benefit of the City.”

Although the deed is by no means a model of draftsmanship, in this case the land use restrictions can be recognized by viewing the instrument as a whole. Furthermore, since the deed “derives all its validity” from article 16 of the General Municipal Law, its provisions must “be construed into and with the deed” (Matter of Lade v Abbott, 185 Misc 501, 507 [Sup Ct, Onondaga County 1945]; see also United States v City of New York, 233 F2d 307, 310 [2d Cir 1956]). The City had no authority to convey the property in this manner without imposing statutory use restrictions.

Our analysis, however, does not end here as, even when a deed declares that a restrictive covenant will run with the land, it must still comply with certain legal requisites to be enforceable against successors in interest (see Neponsit Prop. Owners’ Assn. v Emigrant Indus. Sav. Bank, 278 NY 248 [1938]; cf. Witter v Taggart, 78 NY2d 234, 237-238 [1991] [“the law has long favored free and unencumbered use of real property, and covenants restricting use are strictly construed against those seeking to enforce them”]). In Neponsit, we articulated three conditions that must be met in order for a covenant to run with the land:

“(1) it must appear that grantor and grantee intended that the covenant should run with the land; (2) it must appear that the covenant is one ‘touching’ or ‘concerning’ the land with which it runs; (3) it must appear that there is ‘privity of estate’ between the promisee or party claiming the benefit of the covenant and the right to enforce it, and the promisor or party who rests under the burden of the covenant” (278 NY at 255 [citation omitted]).

These three conditions will be addressed in turn.

First, the parties’ intent to restrict the use of the property is clear from the deed’s multiple references to the UDAAP requirements and from the inclusion, within the habendum clause, of an explicit provision stating that “agreements and covenants . . . shall run with the land.” This intent is equally apparent from the circumstances surrounding the transaction (see Jennings Beach Assn. v Kaiser, 145 AD2d 607, 608 [2d Dept 1988]). Here, the sponsor must have understood that the benefits it received — low appraisal value and exemption from both competitive bidding and a time-consuming land use review — were directly related to the City’s intent to restrict the use of the land for the purposes of the completion of the project. The purchase price alone is indicative of the parties’ intent. HPD appraised the property’s value based on its current income in its current state. It did not calculate the potential income stream for a possible use of the land with a high-rise building, which HPD could have realized had it sold the building on the open market without restriction.

Furthermore, the benefits received by the sponsor/tenants came at a price (cf. Medical Coll. Lab. v New York Univ., 178 NY 153, 163 [1904] [“defendant cannot retain what is beneficial in the transaction, while disclaiming what is onerous”]). Oaks Corp was able to purchase the premises without a cumbersome land use review and without competitive bidding. In exchange, it was required to remove code violations within six months, which it never did, offer two year leases without rent increases to the current tenants and comply with the accelerated UDAAP’s land use restrictions. To allow Oaks Corp to circumvent the conditions by promptly selling the premises is clearly antithetical to the purpose of article 16 of the General Municipal Law (cf. Granada Bldgs. v City of Kingston, 58 NY2d 705, 708 [1982] [“Municipal contracts which violate express statutory provisions are invalid”]). Furthermore, to view the parties’ intent otherwise disregards the language of the deed as a whole. It also permits the sponsor’s subsequent sale to result in an uncontemplated windfall to the detriment of the municipality.

The second Neponsit condition, that the covenant touches and concerns the land, is likewise met here. Although the requirements of offering renewal leases and correcting code violations are finite in nature, they also are relevant to the economic development of the property as declared by the City Council under article 16 of the General Municipal Law. The durational restraint of General Municipal Law § 695 — that the project be completed within a reasonable time — appears to be “merely a reflection of prudent business practices” and is not meant to restrain the ongoing duty to conserve, rehabilitate or reconstruct within the constraints of the deed and UDAAA (City of New York v Delafield 246 Corp., 236 AD2d 11, 25 [1st Dept 1997]).

Thus, we cannot agree with 330 West that, even if Oaks Corp defaulted in its obligations to the City, 330 West is not responsible for breaches of its predecessor with respect to the duty to rehabilitate the blighted property. Rather, the land use restrictions on the property are rooted in the unchallenged finding that the “status of the [property] tends to impair or arrest the sound growth and development of the municipality” and, as such, the duty is not extinguished when the property is so readily transferred, as it was here. Moreover, the new owner was on notice of this responsibility prior to taking title, both from the clear language of the deed between the City and Oaks Corp describing the property’s UDAAP status, and from the filed lawsuit and lis pendens.

Lastly, the third Neponsit factor, privity of estate, has been met as there exists a direct chain of title running from the City to Oaks Corp to 330 West. Whether such privity exists as to 328 Owners Corp. is immaterial, as 328 Owners Corp. has sought the identical relief being granted to the City.

Under the circumstances presented here and the integrated statutory authority for the sale of this property, we hold that the land use restrictions included in the language of the deed and mandated by statute run with the land. Certainly, this need not be “in perpetuity” (see dissenting op at 385, 387). If the project identified in the deed recitals is accomplished, the restrictions may expire by their own terms (see Booth v Knipe, 225 NY 390, 396 [1919] [recognizing that a covenant running with the land “may not last forever”]). In any event, the current or any future owner may seek extinguishment of the land use restrictions under RPAPL 1951 to the extent it desires to make different use of the property.

As for the City’s request to limit the property use to conservation purposes only, we find little merit to its argument. References in the deed to article 16 of the General Municipal Law— other than a single reference in the project summary — do not make such a limiting distinction. The parties’ remaining contentions are also without merit.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the amended order and judgment of Supreme Court reinstated.

Pigott, J.

(dissenting). I respectfully dissent because the majority’s interpretation of the Urban Development Action Area Act (UDAAA) places indefinite use restrictions on property sold pursuant to that Act when no such restrictions were intended. In my view, the Appellate Division’s order dismissing 328 Owners Corp.’s action and the City’s cross claims against the subsequent purchaser should be affirmed.

The City and 328 Owners Corp. argue that because the deed and its accompanying documents were prepared as part of the accelerated Urban Development Action Area Project (UDAAP), 330 West Oaks Corp. (Oak Corp.), the tenant group that purchased the property, and the City intended that the property would be used for certain, specific purposes in perpetuity. While those documents may, indeed, evidence an intent that Oaks Corp. be bound by certain use restrictions, they show no evidence of an intent that a subsequent purchaser, like 330 West 86th St., LLC (330 West), be so bound.

This is clear from the language of the deed itself. As the majority notes, the deed “must be construed according to the intent of the parties, so far as such intent can be gathered from the whole instrument, and is consistent with the rules of law” (Real Property Law § 240 [3]). In my view, the language of the deed is unambiguous and evidences the parties’ intent that Oaks Corp., and only Oaks Corp., be subject to the use restrictions. Specifically, the deed’s “Recital” clauses state that the property is conveyed pursuant to General Municipal Law article 16 and, in particular, that the project “undertaken by [Oaks Corp., as sponsor] . . . consists solely of the rehabilitation or conservation of existing private or multiple dwellings or the construction of one to four unit dwellings.” The recitals describe the authority under which the City acted when it deeded the property to Oaks Corp. and the City’s understanding that Oaks Corp. would use the property for those purposes. These recitals, however, do not constitute covenants or agreements binding on any subsequent purchaser. Nowhere is it mentioned in the deed, either in these recitals or the body thereof, that any subsequent purchaser is limited in its use of the property. Thus, contrary to the majority’s conclusion, it is of no moment that 330 West may have had “notice” of the restrictions meant to be imposed only on Oaks Corp. at the time it purchased the property.

Indeed, the only covenant in the deed that applies to a subsequent purchaser, like 330 West, is that which prohibits “successors and assigns, and every successor in interest” from engaging in discriminatory conduct relative to the use, sale or leasing of the property. It is, of course, axiomatic that purchasers of real property are subject to all applicable zoning ordinances and land use restrictions that a municipality in its lawmaking authority may choose to impose on property located within its boundaries. But limitations found within a deed are a different matter. In such cases, the municipality is acting as a vendor; and, like all vendors, it must strictly adhere to the Real Property Law when it comes to the alienation of real property.

Even assuming that the deed could somehow be read as containing covenants and agreements requiring 330 West to abide by the use restrictions agreed to by Oaks Corp., we have held that express recitals of affirmative covenants that “run with the land” are “generally not binding upon subsequent grantees of the promisor unless [the] well-defined and long-established legal requisites” contained in our holding in Neponsit Prop. Owners’ Assn. v Emigrant Indus. Sav. Bank (278 NY 248 [1938]) have been met (Eagle Enters. v Gross, 39 NY2d 505, 507 [1976], citing Nicholson v 300 Broadway Realty Corp., 7 NY2d 240, 244 [1959]). Neponsit requires that, in order for a covenant to run with the land, the original grantor and grantee must so intend (see Neponsit, 278 NY at 255). In addition, there must be privity of estate between the party seeking to enforce the covenant and the party against whom the covenant is sought to be enforced, and the covenant must “touch and concern” the land upon which it runs (id. at 254-255). Here, the first prerequisite of Neponsit has not been met because, strictly construing the “covenants” against the City and 328 Owners Corp. as we must (see Buffalo Academy of Sacred Heart v Boehm Bros., 267 NY 242, 249 [1935]), it is readily apparent that neither Oaks Corp. nor the City intended any entity other than Oaks Corp. to be bound by the use restrictions. The parties, and the City in particular as drafter of the deed, could easily have crafted a deed binding successors of Oaks Corp. to the use restrictions; but that was not done here.

General Municipal Law § 695 (5) further supports the finding that the use restrictions now sought to be imposed apply only to the original purchaser. That statute provides that any deed disposing of real property pursuant to section 695

“shall contain provisions requiring the purchaser, lessee or grantee to . . . rehabilitate . . . conserve . . . , reconstruct or redevelop such property in accordance with the [UDAAP,] as approved by the [City Council,] within a definite and reasonable period of time subject to the terms of the . . . deed relating thereto between the municipality and the sponsor, and shall contain provisions insuring the use of such real property for purposes consistent with such [UDAAP].”

Thus, even if section 695 (5) is “construed” into the deed, it does not prohibit a subsequent purchaser from redeveloping the property. There is no language in the statute that mandates property initially sold pursuant to the accelerated UDAAP procedure remain, as is argued here, a one to four unit dwelling in perpetuity, or that once a purchaser rehabilitates or conserves the premises it cannot convert the premises to a different use. To the contrary, the City may sell a property pursuant to the accelerated UDAAP procedure when such sale “requires the effectuation of an urban development action area project with[in] a definite and reasonable period of time” (General Municipal Law § 695 [2] [b]). Thus, while a purchaser must effectuate a project within a reasonable time, there is no requirement that once the project is completed the property is forever restricted from becoming something else.

The purpose of article 16 is the swift and quick rehabilitation or conservation of property, and it should not be construed to prohibit future development. If the position of the City and 328 Owners Corp. is taken to its logical conclusion, any property that has been sold by the City pursuant to the accelerated UDAAP procedure may now be subject to attack because the property has been changed from its initial use, regardless of how many years have passed, how many times it has been sold, and how pristine its present condition. That is not the result the Legislature intended when it enacted article 16, the purpose of which is to “provide incentives for the correction of . . . substandard, insanitary, blighted, deteriorated or deteriorating conditions ... by the clearance, replanning, reconstruction, redevelopment, rehabilitation, restoration or conservation of such areas” (General Municipal Law § 691).

Notably, the only conditions found in the deed — that the building code violations be cured and that two-year leases be offered to current tenants at a fixed rate — are temporal and directed explicitly at Oaks Corp. The program under which the property was conveyed mandates these conditions and the City, had it chosen to do so, could have taken appropriate action against Oaks Corp. to enforce them. The same can be said about Oaks Corp.’s purported failure to comply with the use restrictions. The City did not avail itself of the enforcement mechanisms specified in the deed, i.e. suing for rescission of the deed or for breach of the promises contained therein. Thus, the purpose behind the accelerated UDAAP process was not subverted by the sale of the property to 330 West, as the majority implies. Rather, it was the City’s draftsmanship of the deed and its failure to enforce the conditions and use restrictions against Oaks Corp. that subverted the UDAAP process.

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

Order reversed, etc.

      . HPD’s Asset Sales Program is part of its Division of Alternative Management Programs (DAMP). The Asset Sales Program is charged, in part, to help meet HPD’s goal of “returning the City’s housing stock to private tax-paying ownership, while maintaining it as affordable housing” (Rules of City of NY Dept of Hous Preserv and Dev [28 RCNY] § 21-22 [a]). Buildings that are marketable “as is” are placed in the Asset Sales Program while buildings that need city funding are placed in one of the other DAMP programs.

      . Additionally, HPD required that the tenants meet its asking price of $340,000, that the majority of the units be in support of submitting the offer and that rent collections from March 1998 through July 1998 average at least 50%.

      . General Municipal Law § 691 sets forth the “policy and purposes” behind the UDAAA. In part, it states that because deteriorated buildings have an adverse impact on neighborhoods and the growth of municipalities:
      “it is necessary to provide incentives for the correction of such substandard, insanitary, blighted, deteriorated or deteriorating conditions, factors, and characteristics by the clearance, replanning, reconstruction, redevelopment, rehabilitation, restoration or conservation of such areas, the undertaking of public and private improvement programs related thereto and the encouragement and participation in these programs by private enterprise.”

      . Plaintiff alleges that the sale price was at least $1 million based on the transfer tax for the property that was recorded on March 15, 2001. However, a recent New York Times article states that the residents sold the property to developers for $2.25 million in March 2001 (see Mindlin, For a Brownstone Lot, Tall Dreams and Troubled Neighbors, New York Times, Mar. 4, 2007). The sales contract was not made part of the record.

      . This is consistent with the general policy statements of General Municipal Law § 691 as well as HPD’s mission statement that:
      “Using a variety of preservation, development and enforcement strategies, HPD strives to improve the availability, affordability and quality of housing in New York City. As the nation’s largest municipal housing agency, HPD works with private, public and community partners to strengthen neighborhoods and enable more New Yorkers to become homeowners or to rent well-maintained, affordable housing” (HPD Mission Statement, <http://www.nyc.gov/html/hpd/html/about/mission.shtml> [last accessed Mar. 21, 2007], cached at <http://www.courts.state.ny. us/reporter/webdocs/about_HPD_description_of_services_and _mission.htm>).

      . Both Supreme Court and the Appellate Division found that plaintiff, 328 Owners Corp., has standing as an adjacent property owner, to bring this lawsuit.

      . RPAPL 1951 provides a mechanism for extinguishing land use restrictions when “the purpose of the restriction has already been accomplished or, by reason of changed conditions or other cause, its purpose is not capable of accomplishment, or for any other reason.”


author: Graffeo, J.

text:
    [866 NE2d 1009, 834 NYS2d 681]
    The People of the State of New York, Respondent, v William P. Havrish, Appellant.
    Argued February 8, 2007;
    decided April 3, 2007

      POINTS OF COUNSEL

      Jacobs & Jacobs, Stamford (Patrick J. Cannon of counsel), for appellant.
    I. County Court Judge Bartlett erred in reversing Town Justice Hait’s order suppressing evidence and dismissing the accusatory instrument filed against appellant. (United States v Hubbell, 530 US 27; People v Mitchell, 61 NY2d 580; People v Berg, 92 NY2d 701; Schmerber v California, 384 US 757; People v Slavin, 1 NY3d 392, 543 US 818; United States v Doe, 465 US 605; Baltimore City Dept. of Social Servs. v Bouknight, 493 US 549; United States v Wade, 388 US 218; Holt v United States, 218 US 245; Gilbert v California, 388 US 263.) II. Town Justice Hait correctly ruled that the evidence against appellant had been obtained in violation of his constitutional rights and dismissed the charge against him. (People v Wagman, 99 AD2d 519; Marchetti v United States, 390 US 39; Grosso v United States, 390 US 62; Kastigar v United States, 406 US 441; United States v United States Coin & Currency, 401 US 715; Kemp v Lynch, 275 AD2d 1024; United States v Kordel, 397 US 1; Miranda v Arizona, 384 US 436; Schmerber v California, 384 US 757; United States v Wade, 388 US 218.)

      James Sacket, District Attorney, Schoharie (Thomas F. Garner of counsel), for respondent.
    I. County Court correctly held that William Havrish’s right against self-incrimination was not violated. (Schmerber v California, 384 US 757; United States v Wade, 388 US 218; Curcio v United States, 354 US 118; Holt v United States, 218 US 245; Gilbert v California, 388 US 263; Baltimore City Dept. of Social Servs. v Bouknight, 493 US 549; People v Slavin, 1 NY3d 392; People v Berg, 92 NY2d 701.) II. No evidence was obtained from William Havrish in violation of his constitutional rights.
   OPINION OF THE COURT

Graffeo, J.

In complying with an order of protection that directed him to turn over his firearms to police, defendant produced an unlicensed handgun and was subsequently charged with criminal possession of a weapon in the fourth degree. The issue before us is whether defendant’s surrender of the handgun was privileged under the Fifth Amendment. We conclude that it was and therefore reverse the order of County Court, grant defendant’s motion to suppress and dismiss the accusatory instrument.

On April 8, 2005, defendant was charged in Delhi Town Court with assault in the third degree, burglary in the second degree and kidnapping in the second degree in connection with a domestic violence incident in Delaware County. The Town Court set bail and issued an order of protection directing defendant to stay away from the victim and to “[s]urrender any and all firearms owned or possessed.”

After defendant posted bail, the police accompanied him to his residence in Schoharie County where defendant promptly gave the officers his “long guns.” Defendant advised the authorities that he owned a handgun but had given it to his ex-wife. The police contacted defendant’s ex-wife, who informed them that she did not possess the pistol but believed defendant still had it. She claimed to have last seen the gun in a small room off the living room in defendant’s home. With some equivocation, she also indicated that the handgun was not licensed.

Before the authorities acted on the information supplied by defendant’s ex-wife, defendant called one of the officers and said that he had located the pistol. When the police arrived at his home, defendant brought them to a small room next to the living room where they retrieved a Ruger Blackhawk .44 magnum revolver from a milk crate.

Once the police confirmed that defendant did not have a license for the handgun, defendant was charged in Jefferson Town Court with criminal possession of a weapon in the fourth degree, a class A misdemeanor. He moved to dismiss the accusatory instrument on the ground that the gun and his statements to police must be suppressed because he was compelled to produce evidence protected by the Fifth Amendment right against self-incrimination. Defense counsel argued that the order directing defendant to turn over his weapons created an impossible dilemma since defendant was required either to produce the unlicensed pistol, thereby incriminating himself, or defy the court order and risk being prosecuted for criminal contempt. Among other arguments, the People countered that defendant’s Fifth Amendment rights were not implicated because surrender of the revolver involved the production of physical evidence that was not communicative or testimonial in nature.

Jefferson Town Court granted defendant’s motion to suppress, concluding that, for purposes of the weapon possession prosecution, defendant’s surrender of the pistol was privileged under the Fifth Amendment. Because the People did not assert that they possessed independent evidence of defendant’s guilt, the court determined that dismissal of the accusatory instrument was also warranted. On the People’s appeal, County Court reversed and reinstated the charge, reasoning that the order directing defendant to surrender the handgun involved the production of real or physical evidence, not compelled communication, and therefore did not run afoul of the Fifth Amendment. A Judge of this Court granted defendant leave to appeal and we now reverse.

The Fifth Amendment guarantees that an individual shall not “be compelled in any criminal case to be a witness against himself’ (US Const 5th Amend). “[T]he privilege protects an accused . . . from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature” (Schmerber v California, 384 US 757, 761 [1966]). There are thus two elements to the privilege: the presence of compulsion and the solicitation or receipt by the government of evidence of a testimonial nature.

Here, the element of state compulsion was unquestionably met. Defendant was ordered by a court to surrender his weapons. Had he failed to do so, he could have been prosecuted for criminal contempt. The more difficult question is whether compliance with the order supplied testimonial or communicative evidence or whether, as County Court concluded, defendant was merely directed to supply “real or physical evidence” not protected by the Fifth Amendment.

It is well settled that a person can be forced to produce real or physical evidence without offending the privilege against self-incrimination (id.). Cases in which a defendant is required to engage in conduct that reveals the physical characteristics of his or her body generally fall in the “real or physical evidence” category. For example, in Schmerber, the Court held that the requirement that a defendant accused of driving while intoxicated submit to a blood test did not implicate the Fifth Amendment privilege because defendant’s “testimonial capacities were in no way implicated; indeed, his participation, except as a donor, was irrelevant to the results of the test, which depend on chemical analysis and on that alone” (id. at 765).

The Fifth Amendment therefore “offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture” (id. at 764). Similarly, a defendant can be ordered to participate in a lineup (see United States v Wade, 388 US 218 [1967]) or to provide a handwriting exemplar (see Gilbert v California, 388 US 263 [1967]) without implicating the privilege against self-incrimination. Our Court has applied the Schmerber analysis on a number of occasions, holding that field sobriety tests conducted during a traffic stop were the equivalent of real or physical evidence not protected under the Fifth Amendment (People v Hager, 69 NY2d 141 [1987]; see People v Berg, 92 NY2d 701 [1999]) and that a defendant could not rely on the privilege to avoid compliance with a court order requiring him to display his upper body tattoos (see People v Slavin, 1 NY3d 392 [2004], cert denied 543 US 818 [2004]).

The People rely on the Schmerber analysis in asserting that defendant’s surrender of the revolver was not conduct protected by the Fifth Amendment. But the surrender of evidence — even evidence not otherwise cloaked by the privilege — may itself be privileged if the very act of production has communicative or testimonial aspects (see e.g. United States v Doe, 465 US 605, 613 [1984] [Doe I]). Although the act of production doctrine has most commonly been applied to the surrender of subpoenaed documents, the U.S. Supreme Court has indicated that it can also apply to the compelled production of other types of evidence (see Baltimore City Dept. of Social Servs. v Bouknight, 493 US 549 [1990]; but see United States v Patane, 542 US 630, 644 n 7 [2004]). And the Court has emphasized that the item produced is distinct from the act of production itself. In sum, even when the thing demanded is not privileged, the act of production may be (see Doe I, 465 US at 613).

In Bouknight, the judge presiding over a child-protective proceeding ordered a mother to produce her child in court. She refused, invoking the Fifth Amendment. In considering whether the mother could rely on the act of production doctrine to avoid compliance with the court order, the Court explained the doctrine as follows:

“When the government demands that an item be produced, the only thing compelled is the act of producing the item . . . The Fifth Amendment’s protection may nonetheless be implicated because the act of complying with the government’s demand testifies to the existence, possession, or authenticity of the things produced” (493 US at 554-555 [internal quotation marks, citations and brackets omitted]; see United States v Hubbell, 530 US 27, 36 [2000]).

Ultimately, the Court held the doctrine inapplicable to the mother’s circumstance because it could not be used to resist compliance with a civil regulatory regime constructed to effectuate governmental purposes unrelated to law enforcement— the social services system designed for the protection of children.

In this case, the People did not assert below, and do not argue here, that the Bouknight regulatory regime exception applies to this factual scenario. Thus, the pivotal issue here is whether defendant’s act of producing the unlicensed handgun was privileged. The Supreme Court has developed a two-part test for resolving this question (see Fisher v United States, 425 US 391 [1976]).

First, a court must assess whether the compelled act of production is sufficiently testimonial. Under the Fifth Amendment, evidence is deemed testimonial when it reveals defendant’s subjective knowledge or thought processes — when it expresses the contents of defendant’s mind (Doe v United States, 487 US 201, 211 [1988] [Doe II]; Hager, 69 NY2d at 142). The surrender of evidence can be testimonial if, by doing so, defendant tacitly concedes that the item demanded exists or is in defendant’s possession or control when these facts are unknown to the authorities and would not have been discovered through independent means. Put another way, the inquiry is whether the existence of the item sought, or defendant’s possession of it, was a “foregone conclusion and the [defendant] adds little or nothing to the sum total of the Government’s information by conceding that he in fact has the [item]” (Fisher, 425 US at 411). In .that circumstance, the act of production is not sufficiently testimonial to implicate the Fifth Amendment.

Second, a court must determine whether the act of production is incriminating. If the subjective information the government will obtain through the act of production does not “pose[ ] any realistic threat of incrimination” (id. at 412) but presents “merely trifling or imaginary[ ] hazards of incrimination” (Doe I, 465 US at 614 n 13 [internal quotation marks and citations omitted]), the act enjoys no Fifth Amendment protection. Both elements must be fulfilled for an act of production to be privileged and the Supreme Court has made clear that the elements “do not lend themselves to categorical answers; their resolution . . . instead depend[s] on the facts and circumstances of particular cases” (Fisher, 425 US at 410).

Turning to the first inquiry, in this case we cannot say that, absent defendant’s court-ordered surrender of the revolver, the discovery that defendant possessed an unlicensed handgun would have been a “foregone conclusion.” Before defendant revealed that he had possessed a revolver, neither the court nor the police were aware that defendant owned a handgun. Furthermore, defendant’s statements about the gun were integral to compliance with the directive in the order of protection. Although it is conceivable that defendant could have heeded the order without uttering a word about his weapons, it was reasonably likely that defendant’s response would include verbal communications concerning their existence and location. The statements defendant made — advising police that he owned a revolver and indicating where it was — went no further than what a person complying with such an order would have been expected to communicate. They were therefore central to and part of the act of production. And that act was the exclusive source of evidence the People relied on in pursuing the prosecution for criminal possession of a weapon.

The People have not come forward with evidence suggesting that, incident to the charges in the domestic violence case, they were independently investigating whether defendant owned a handgun. It is true that defendant’s ex-wife disclosed information to the authorities concerning the unlicensed revolver, but there is no basis in the record to conclude that the police would have contacted her if defendant had not earlier indicated that she had the gun. Nor have the People proffered evidence that the victim of the domestic violence incident knew of the pistol or that, in the ordinary course of investigation of that incident, she would have necessarily alerted them to defendant’s unlawful possession of it. Had this information been provided, the police may well have been able to obtain the weapon through execution of a search warrant. But, on this record, defendant’s surrender of the gun was testimonial because it revealed defendant’s subjective thought processes — that he knowingly possessed the weapon — and, absent this revelation, the information would not have come to the attention of the police.

Defendant’s surrender of the handgun was also sufficiently incriminating to give rise to Fifth Amendment protection. The order compelling defendant to turn over his weapons was issued in the course of a felony prosecution, without a grant of immunity or amnesty. Indeed, by the time defendant produced the weapon, he had provided the police with proof of virtually every element of the offense of criminal possession of a weapon. Given that the act of production involved the commission of a crime in the presence of the police, it can hardly be argued that the conduct was unlikely to result in criminal prosecution.

Both elements of the act of production doctrine having been met, defendant’s surrender of the unlicensed handgun was privileged under the Fifth Amendment and suppression of the evidence was therefore warranted in the weapon possession prosecution. Because the People have proffered no evidence that law enforcement authorities would have learned of defendant’s possession of the revolver through independent means, or that they could have connected defendant to the handgun with proof unrelated to the act of production, the suppression of this evidence necessitated dismissal of the accusatory instrument.

Accordingly, the order of County Court should be reversed, defendant’s motion to suppress granted and the information dismissed.

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

Order reversed, etc.

      . The People also contended that defendant could not seek suppression based on the Fifth Amendment because he did not invoke the privilege before he turned over the weapon (see e.g. Roberts v United States, 445 US 552, 559-561 [1980]). The People having failed to brief this argument on appeal, we have no occasion to consider it.

      . For example, in the case of a document, the contents are not deemed to have been compelled if the document was prepared voluntarily. Even if the contents of the document are not cloaked with the privilege because the element of compulsion is absent, the doctrine may apply to privilege the act of producing the document (Doe I, 465 US at 617 n 17; see Fisher v United States, 425 US 391, 409-410 [1976]). Similarly, in Bouknight where the Supreme Court considered whether a mother could invoke the privilege in order to avoid producing her child for a court proceeding, the Court noted that, if the doctrine applied, the baby itself was not privileged and the mother could not “claim the privilege based upon anything that examination of [the child] might reveal” (493 US at 555). Instead, the privilege would apply to the mother’s conduct. Thus, the fact that the item to be produced is “real or physical evidence” not protected under the privilege does not automatically preclude application of the act of production doctrine.

      . Any argument concerning the applicability of the regulatory regime exception is both unpreserved and waived. Moreover, even if the exception applied, it is not clear to what extent it would assist the People. In Bouknight, the Supreme Court did not define the limitations on the use of testimonial evidence obtained by virtue of the regulatory regime exception but noted in dicta that “the Fifth Amendment protections are not. . . necessarily unavailable to the person who complies with the regulatory requirement after invoking the privilege and subsequently faces prosecution” (493 US at 561-562).

      . There was no connection between the ex-wife and the domestic violence incident in Delaware County, which involved a different person. It appears that the authorities would have had no reason to interview defendant’s ex-wife concerning their investigation of the Delaware County charges.