author: Chief Judge Lippman.

text:
    [907 NE2d 692, 879 NYS2d 814]
    The People of the State of New York, Respondent, v Joseph Goldstein, Appellant.
    Argued April 1, 2009;
    decided April 30, 2009

      POINTS OF COUNSEL

      Law Offices of Jacob Laufer, P.C., New York City (Jacob Laufer and Shulamis Peltz of counsel), for appellant.
    I. The guilty plea was not knowingly, voluntarily and intelligently entered. It should not have been accepted, and County Court further erred in denying Joseph Goldstein’s motion to withdraw his guilty plea. (Brady v United States, 397 US 742; Boykin v Alabama, 395 US 238; Kercheval v United States, 274 US 220; People v Ford, 86 NY2d 397; People v Harris, 61 NY2d 9; Hill v Lockhart, 474 US 52; People v McDonald, 1 NY3d 109; People v Louree, 8 NY3d 541; People v Catu, 4 NY3d 242; People v Picciotti, 4 NY2d 340.) II. The sentences could not have been imposed consecutively. (People v Laureano, 87 NY2d 640; People v Rodriguez, 217 AD2d 403, 87 NY2d 850; People v Rosas, 8 NY3d 493; People v Kendrick, 261 AD2d 646, 93 NY2d 1021; People v Moffitt, 20 AD3d 687; People v Kindlon, 217 AD2d 793; People v Keindl, 68 NY2d 410; People v Shack, 86 NY2d 529; People v Okafore, 72 NY2d 81; Matter of Johnson v Morgenthau, 69 NY2d 148.) III. Joseph Goldstein’s legal representation was constitutionally infirm. His counsel made no motions, misadvised him regarding his sentencing exposure, and inexplicably advised him to plead guilty several days following his indictment to an agreed-upon sentence that resulted in the maximum sentence he would have faced after trial. (Strickland v Washington, 466 US 668; People v McDonald, 1 NY3d 109; Hill v Lockhart, 474 US 52; People v Benevento, 91 NY2d 708; People v Ozuna, 7 NY3d 913; People v Caban, 5 NY3d 143; People v Rivera, 71 NY2d 705; People v DiLorenzo, 39 AD3d 1032; People v Masters, 36 AD3d 959; People v Grimes, 35 AD3d 882.) IV. County Court erred in summarily enhancing the agreed-upon sentence, following defendant’s nonappearance for sentencing, when defendant, who had voluntarily appeared on the adjourned date, and was in custody, protested that there was psychiatric proof explaining his earlier nonappearance and requested a brief adjournment to have his attorney of record (and not an attorney who had appeared at sentencing in his stead) represent him and present this evidence. Moreover, an enhanced consecutive sentence that would have been improper ab initio could not be imposed for failure to appear. (People v Parker, 57 NY2d 136; People v Terrell, 41 AD3d 1044; People v Parker, 271 AD2d 63, 95 NY2d 967; People v Outley, 80 NY2d 702; People v Perham, 263 AD2d 766; People v Bowden, 221 AD2d 723, 87 NY2d 919; People v Carpenter, 256 AD2d 1205, 93 NY2d 871; People v Jenkins, 29 AD3d 1177, 9 NY3d 991; People v Knowles, 244 AD2d 425; People v De Maio, 304 AD2d 988.)

      Stephen F. Lungen, District Attorney, Monticello (Karen Mannino, Bonnie M. Mitzner and Stephen Wyder of counsel), for respondent.
    I. Appellant’s pleas were voluntarily entered. (Boykin v Alabama, 395 US 238; Brady v United States, 397 US 742; People v Luster, 148 AD2d 305, 74 NY2d 666; People v Davis, 12 AD3d 237; People v Kendrick, 261 AD2d 646, 93 NY2d 1021; People v Smith, 113 AD2d 905, 66 NY2d 922; People v Purnell, 22 AD3d 871; People v Hardy, 32 AD3d 1317, 7 NY3d 925; People v Moffitt, 20 AD3d 687, 5 NY3d 854; People v Nixon, 21 NY2d 338, 393 US 1067.) II. The trial court properly exercised its discretion by accepting appellant’s guilty pleas and by denying his motion to withdraw the pleas. (People v Alexander, 97 NY2d 482; People v Ramos, 63 NY2d 640; People v Knowles, 244 AD2d 425; People v Grady, 110 AD2d 780; People v Baret, 11 NY3d 31; People v McKennion, 27 NY2d 671.) III. The trial court properly enhanced appellant’s sentence based on his failure to appear for sentencing. (People v Outley, 80 NY2d 702; People v Parker, 57 NY2d 136.)
   OPINION OF THE COURT

Chief Judge Lippman.

Defendant was charged by indictment with two counts of reckless endangerment in the first degree (Penal Law § 120.25), one count of aggravated unlicensed operation of a motor vehicle in the first degree (Vehicle and Traffic Law § 511 [3]) and numerous misdemeanors and violations. According to the indictment, defendant, while driving with a suspended license, was pulled over by a police officer for failing to observe a stop sign. When asked by the officer to produce his license, defendant sped away, committing numerous traffic offenses and, in the course of being chased, drove his Ford Explorer at a high speed through a one-lane construction zone into oncoming traffic, causing flagmen at each end of the zone to jump out of the way of his vehicle. Defendant’s license had been suspended some 28 times and he had an extensive criminal record, including at least two felonies. He was on probation at the time of the events here at issue.

At the plea proceedings, defendant was informed by the court that, if he went to trial and was convicted, he faced consecutive sentences. Defendant indicated in substance that, in accordance with the previously agreed upon plea bargain, he wished to enter a plea of guilty to the indictment’s top three counts in full satisfaction of the accusatory instrument and understood that he would be sentenced to concurrent terms, the longest of which would be 3½ to 7 years. He acknowledged that, at the time of the events in question, he had been driving in the town of Liberty, New York without a valid license; that his license had previously been suspended on 28 occasions; that he drove a Ford Explorer through a construction zone “pretty fast”; and that he observed, but did not obey, flagmen directing traffic into and out of the single lane passing through the work zone. During this allocution, the following exchange took place:

“the court: And did you ignore the traffic directions and cause one of the construction workers to jump out of the way to avoid being hit by your car? . . .
“the defendant: I don’t know if he jumped out, your honor. I know I went by.
“the court: Very close. You could have killed him if you hit him?
“the defendant: I don’t think so. I don’t know.
“the court: You didn’t kill him, of course. But, you came so close that you created a situation that was very dangerous.
“[defense counsel]: Your honor, we don’t dispute the allegation. My client has no recollection of particular individuals. But, we don’t dispute the allegations and I have had an opportunity to review the allegations, as well as the statement with my client, and we don’t dispute the voracity [sic] of the situation.”

After accepting defendant’s plea, the court warned defendant that his failure to appear for sentencing on the appointed date would result in a sentence of 12 to 48 years. It is clear that a sentence of that length could not have been imposed.

Some 3½ months after entering his plea, defendant, represented by new counsel, moved unsuccessfully before a different judge to withdraw it.

The essential issues raised on the motion, and upon which the Appellate Division Justices differed in their disposition of the ensuing appeal to that Court, are whether defendant was misinformed as to what appears to have been the only real benefit of his plea (i.e., concurrent as opposed to consecutive sentences), and whether the allocution was fatally defective with respect to the reckless endangerment counts. These issues, decided against defendant by the Appellate Division majority (51 AD3d 1271 [2008]), are now before us by leave of a Justice of that Court (CPL 460.20; 11 NY3d 743 [2008]).

Defendant’s contention that he was misinformed as to the possibility of receiving consecutive sentences if he went to trial is without merit. While it is arguable that the allegations of the indictment and facts adduced at the allocution did not sufficiently demonstrate that the two reckless endangerment counts were based on distinct acts for which consecutive sentences could be imposed—since neither the indictment nor the allocution indicated the length of the construction zone or the interval between the defendant’s alleged near misses of the construction zone flagmen (see generally People v Laureano, 87 NY2d 640, 644 [1996])—it is clear, and, indeed, on this point the Appellate Division Justices agreed, that the conduct underlying the count alleging aggravated unlicensed operation of a motor vehicle was distinct from that involved in the ensuing reckless endangerment offenses and thus permitted a consecutive sentence. Defendant’s plea, then, would have afforded him the considerable benefit of avoiding exposure to consecutive sentences had he appeared for sentencing as directed. This being the case, defendant’s contentions that he was misled into a worthless plea bargain and that he was denied effective representation in connection with the plea bargain would appear untenable. While it is true that the plea court grossly misrepresented defendant’s exposure to consecutive sentencing in the course of administering Parker warnings (see People v Parker, 57 NY2d 136 [1982]), this occurred after the plea had been entered. There is no indication that the misinformation figured in defendant’s decision to plead as he did. The only representation of record made to the defendant by the court prior to the entry of his plea was, simply, that a consecutive sentence was possible, but that under the plea bargain the sentence would be concurrent. This was accurate.

The argument as to the adequacy of the allocution is based on defendant’s claimed inability, when asked, to state whether he had passed perilously close to the construction zone flagmen. Defendant’s asserted ignorance on this point is said to negate the mental state of depraved indifference, which is elemental to first degree reckless endangerment (see People v Feingold, 7 NY3d 288 [2006]). But defendant’s professed inability at the time of the plea to remember whether he nearly hit the flagmen does not “negate” the accusation that he acted with depraved indifference at the time of the incident. Defendant’s counsel explained that although defendant did not remember the “particular individuals,” he and his client had reviewed the allegations and did not dispute them. Certainly, the court was not presented with a protestation of innocence.

If the issue were whether the facts specifically admitted by defendant during the allocution would, if proved, suffice to support a conviction, the question would be close; defendant ably argues that what was made out in the allocution itself amounted to no more than second degree reckless endangerment (Penal Law § 120.20), a non-depraved indifference offense. But an allocution based on a negotiated plea need not elicit from a defendant specific admissions as to each element of the charged crime. Nor is “[t]he court’s duty to inquire further . . . triggered merely by the failure of a pleading defendant, whether or not represented by counsel, to recite every element of the crime pleaded to” (see People v Lopez, 71 NY2d 662, 666 n 2 [1988]). Indeed, no catechism is required in connection with the acceptance of a plea (see People v Nixon, 21 NY2d 338, 350 [1967]) and we have refused to disturb pleas by canny defendants even when there has been absolutely no elicitation of the underlying facts of the crime (see People v Fooks, 21 NY2d 338, 350 [1967] [decided with People v Nixon]). It is enough that the allocution shows that the defendant understood the charges and made an intelligent decision to enter a plea (id.). Here, the allocution was adequate to meet these purposes. The defendant, represented by counsel and no novice to the criminal justice system, clearly understood the nature of the charges to which he was pleading and willingly entered his plea to obtain the benefit of the bargain he had struck.

Defendant’s remaining argument is that the court abused its discretion when it enhanced his sentence by reason of his failure to appear for sentencing on the appointed date, without affording him an opportunity to substantiate his proffered psychiatric excuse for his absence. However, had there been any plausible psychiatric reason for defendant’s failure to appear on the two prior scheduled sentencing dates, it is to be expected that defendant would have been prepared at sentencing with some supporting documentation, particularly after a warrant had been issued to secure his appearance. Under the circumstances, including, notably, defendant’s extensive history of nonappearances—many of his license suspensions having resulted from failing to appear—the court’s decision to proceed with sentencing, and to enhance the sentence by reason of defendant’s failure to heed the Parker warnings he had been given, did not rise to the level of an abuse of discretion.

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

Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.

Order affirmed.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    [908 NE2d 875, 880 NYS2d 885]
    Pioneer Tower Owners Association, Respondent, v State Farm Fire & Casualty Company et al., Appellants.
    Argued March 31, 2009;
    decided April 30, 2009

      POINTS OF -COUNSEL

      Rivkin Radler LLP, Uniondal (Stuart M. Bodoff, Evan H. Krinick, Cheryl F. Korman and Michael A. Troisi of counsel), for appellants.
    I. Plaintiffs loss is excluded from coverage under the earth movement exclusion in the policy. (Matter of Covert, 97 NY2d 68; Vigilant Ins. Co. v Bear Stearns Cos., Inc., 10 NY3d 170; White v Continental Cas. Co., 9 NY3d 264; Bailey v Fish & Neave, 8 NY3d 523; Baughman v Merchants Mut. Ins. Co., 87 NY2d 589; Seaboard Sur. Co. v Gillette Co., 64 NY2d 304; Belt Painting Corp. v TIG Ins. Co., 100 NY2d 377; Teichman v Community Hosp. of W. Suffolk, 87 NY2d 514; Sanabria v American Home Assur. Co., 68 NY2d 866; United States Fid. & Guar. Co. v Annunziata, 67 NY2d 229.) II. Plaintiffs loss is excluded from coverage by the settling and cracking exclusion in the policy. (Holy Angels Academy v Hartford Ins. Group, 127 Misc 2d 1024; 242-44 E. 77th St., LLC v Greater N.Y. Mut. Ins. Co., 31 AD3d 100; New York Univ. v Continental Ins. Co., 87 NY2d 308; Preserver Ins. Co. v Ryba, 10 NY3d 635; Matter of Worcester Ins. Co. v Bettenhauser, 95 NY2d 185; Topliffe v US Art Co., Inc., 40 AD3d 967.) III. Plaintiffs loss is excluded from coverage under the defective construction exclusion in the policy. (Matter of Couch v Perales, 78 NY2d 595; Telaro v Telaro, 25 NY2d 433; 242-44 E. 77th St., LLC v Greater N.Y. Mut. Ins. Co., 31 AD3d 100.)

      Kushnick & Associates, P.C., Melville (Lawrence A. Kushnick, Vincent T. Pallad and Craig H. Handler of counsel), for respondent.
    I. The earth movement exclusion does not apply because the damage was not the result of natural earth movement. (RJC Realty Holding Corp. v Republic Franklin Ins. Co., 2 NY3d 158; Belt Painting Corp. v TIG Ins. Co., 100 NY2d 377; Ruge v Utica First Ins. Co., 32 AD3d 424; Natural Stone Indus., Inc. v Utica Natl. Assur. Co., 29 AD3d 758; Edwards v Allstate Ins. Co., 16 AD3d 368; 242-44 E. 77th St., LLC v Greater N.Y. Mut. Ins. Co., 31 AD3d 100; Cali v Merrimack Mut. Fire Ins. Co., 43 AD3d 415; Sheehan v State Farm Fire & Cas. Co., 239 AD2d 486; Kula v State Farm Fire & Cas. Co., 212 AD2d 16, 87 NY2d 953;
      Wyatt v Northwestern Mut. Ins. Co. of Seattle, 304 F Supp 781.) II. In accordance with the ejusdem generis doctrine, the earth movement exclusion only applies to natural earth movement, not to the removal of earth by unnatural means. (Holy Angels Academy v Hartford Ins. Group, 127 Misc 2d 1024; 242-44 E. 77th St., LLC v Greater N.Y. Mut. Ins. Co., 31 AD3d 100.) III. State Farm Fire & Casualty Company cannot establish that the earth movement exclusion applies. (White v Continental Cas. Co., 9 NY3d 264; Matter of New York Cent. Mut. Fire Ins. Co. v Ward, 38 AD3d 898; Penna v Federal Ins. Co., 28 AD3d 731; Tomco Painting & Contr., Inc. v Transcontinental Ins. Co., 21 AD3d 950; Bassuk Bros. v Utica First Ins. Co., 1 AD3d 470; Marshall v Tower Ins. Co. of N.Y., 44 AD3d 1014; City of New York v Evanston Ins. Co., 39 AD3d 153; 242-44 E. 77th St, LLC v Greater N.Y. Mut. Ins. Co., 31 AD3d 100; Villanueva v Preferred Mut. Ins. Co., 48 AD3d 1015.) IV. The settling and cracking exclusion does not apply. (Adames v Nationwide Mut. Fire Ins. Co., 55 AD3d 513; City of Kingston v Harco Natl. Ins. Co., 46 AD3d 1320; Maroney v New York Cent. Mut. Fire Ins. Co., 10 AD3d 778; Benjamin Shapiro Realty Co. v Agricultural Ins. Co., 287 AD2d 389; North Am. Foreign Trading Corp. v Mitsui Sumitomo Ins. USA, Inc., 499 F Supp 2d 361; TIG Ins. Co. v Town of Cheektowaga, 142 F Supp 2d 343; Holy Angels Academy v Hartford Ins. Group, 127 Misc 2d 1024; 242-44 E. 77th St., LLC v Greater N.Y. Mut. Ins. Co., 31 AD3d 100; Seaboard Sur. Co. v Gillette Co., 64 NY2d 304; Matter of Mostow v State Farm Ins. Cos., 88 NY2d 321.) V. The defective construction exclusion is not applicable. (Quain v Buzzetta Constr. Corp., 69 NY2d 376; Bingham v New York City Tr. Auth., 99 NY2d 355; Adames v Nationwide Mut. Fire Ins. Co., 55 AD3d 513; City of Kingston v Harco Natl. Ins. Co., 46 AD3d 1320; Maroney v New York Cent. Mut. Fire Ins. Co., 10 AD3d 778; Benjamin Shapiro Realty Co. v Agricultural Ins. Co., 287 AD2d 389; Penna v Federal Ins. Co., 28 AD3d 731; Torneo Painting & Contr., Inc. v Transcontinental Ins. Co., 21 AD3d 950; Bassuk Bros. v Utica First Ins. Co., 1 AD3d 470; 242-44 E. 77th St, LLC v Greater N.Y. Mut. Ins. Co., 31 AD3d 100.)

      LHB Pacific Law Partners, LLP, Emeryville, California (Clarke B. Holland and Lisa L. Kirk of counsel), and Pastel & Rosen, LLP, Albany (Robert S. Pastel of counsel), for New York Insurance Association, Inc., and others, amici curiae.
    I. Plaintiffs loss is excluded from coverage under the earth movement exclusion in the policy. (Kula v State Farm Fire & Cas. Co., 212 AD2d 16; Tuepker v State Farm Fire & Cas. Co., 507 F3d 346; Alamia

      v Nationwide Mut. Fire Ins. Co., 495 F Supp 2d 362; Leonard v Nationwide Mut. Ins. Co., 499 F3d 419; TNT Speed & Sport Ctr., Inc. v American States Ins. Co., 114 F3d 731; Schroeder v State Farm Fire & Cas. Co., 770 F Supp 558; Sheehan v State Farm Fire & Cas. Co., 239 AD2d 486; Casey v General Acc. Ins. Co., 178 AD2d 1001; Cali v Merrimack Mut. Fire Ins. Co., 43 AD3d 415.) II. Plaintiffs loss is excluded from coverage under the defective construction exclusion in the policy. (242-44 E. 77th St., LLC v Greater N.Y. Mut. Ins. Co., 31 AD3d 100.) III. Plaintiffs loss is excluded from coverage under the settling and cracking exclusion in the policy.
   OPINION OF THE COURT

Smith, J.

Plaintiff seeks recovery under an insurance policy for damage to its building that resulted from an excavation on an adjacent lot. We hold that policy exclusions for “earth movement” and “settling [or] cracking” did not unambiguously remove this event from the policy’s coverage.

I

Plaintiff is the owner of a condominium apartment building. After cracks began appearing in the building, a structural engineer was called in. He found a number of cracks, separations and open joints, and concluded that they were caused by work that was in progress on the lot next door. That lot was being excavated, and underpinning had been built to protect the foundation of plaintiffs building. The engineer concluded, and it is undisputed in this case, that the underpinning was flawed, and that as a result earth slid away beneath plaintiffs building, causing damage.

Plaintiff submitted a claim for the damage to defendant State Farm Fire & Casualty Company (defendant), which had insured the building against “accidental direct physical loss.” Defendant disclaimed coverage, relying on the “earth movement” exclusion in its policy, which says:

“We do not insure under any coverage for any loss which would not have occurred in the absence of one or more of the following excluded events. We do not insure for such loss regardless of: (a) the cause of the excluded event; or (b) other causes of the loss; or (c) whether other causes acted concurrently or in any sequence with the excluded event to produce the loss . . .
“b. earth movement, meaning the sinking, rising, shifting, expanding or contracting of earth, all whether combined with water or not. Earth movement includes but is not limited to earthquake, landslide, erosion, and subsidence but does not include sinkhole collapse.
“But if accidental direct physical loss by fire, explosion other than explosion of a volcano, theft or building glass breakage results, we will pay for that resulting loss.”

Plaintiff brought this action to recover for its loss. In litigation, defendant and amici supporting it rely not only on the earth movement exclusion but on several others, of which we think only one requires discussion. That exclusion, the settling or cracking exclusion, says:

“We do not insure for loss either consisting of, or directly and immediately caused by, one or more of the following: . . .
“f. settling, cracking, shrinking, bulging or expansion.
“But if accidental direct physical loss by any of the ‘Specified Causes of Loss’ or by building glass breakage results, we will pay for that resulting loss.”

None of the “Specified Causes of Loss”—a 14-item list, including fire, windstorm and water damage among other things—is present in this case.

On cross motions for summary judgment, Supreme Court ruled in plaintiff’s favor on the issue of liability (15 Misc 3d 1127[A], 2007 NY Slip Op 50869[U]). After a stipulation as to the amount of damages, Supreme Court entered judgment for plaintiff. The Appellate Division modified the judgment to add a declaration in plaintiffs favor, and otherwise affirmed (51 AD3d 649 [2008]). We granted leave to appeal (11 NY3d 703 [2008]), and now affirm.

II

The law governing the interpretation of exclusionary clauses in insurance policies is highly favorable to insureds. We said in Seaboard Sur Co. v Gillette Co. (64 NY2d 304 [1984]):

“[W]henever an insurer wishes to exclude certain coverage from its policy obligations, it must do so in clear and unmistakable language. Any such exclusions or exceptions from policy coverage must be specific and clear in order to be enforced. They are not to be extended by interpretation or implication, but are to be accorded a strict and narrow construction. Indeed, before an insurance company is permitted to avoid policy coverage, it must satisfy the burden which it bears of establishing that the exclusions or exemptions apply in the particular case, and that they are subject to no other reasonable interpretation.” (Id. at 311 [citations and internal quotation marks omitted]; see also Cone v Nationwide Mut. Fire Ins. Co., 75 NY2d 747, 749 [1989] [exclusions from coverage “construed strictly against the insurer”]; Breed v Insurance Co. of N. Am., 46 NY2d 351, 353 [1978] [“ambiguities in an insurance policy are to be construed against the insurer, particularly when found in an exclusionary clause”].)

We have enforced policy exclusions only where we found them to “have a definite and precise meaning, unattended by danger of misconception . . . and concerning which there is no reasonable basis for a difference of opinion” (Breed, 46 NY2d at 355).

This case is a close one, but we cannot say that the event that caused plaintiff’s loss was unambiguously excluded from the coverage of this policy.

Defendant’s argument is, in substance, that the literal language of the exclusions describes what happened here. The earth movement exclusion applies, defendant says, because the loss was caused by the movement of earth, and specifically by its “sinking” and “shifting” beneath plaintiffs building. And the settling or cracking exclusion applies, in defendant’s view, because the loss consisted of cracking that was directly and immediately caused by the settling of the building (which was in turn caused by the excavation). Indeed, plaintiffs own engineer’s report says “that the left wing of the building . . . had settled ... as evidenced by the cracking and lateral displacement of the structure.”

Plaintiff argues, however, that a literal reading of the words does not give the meaning that an ordinary reader would assign to these exclusionary clauses. As to the earth movement exclusion, plaintiff stresses the examples of earth movement given in the policy—“earthquake, landslide, erosion, and subsidence.” Plaintiff argues that an excavation—the intentional removal of earth by humans—is a different kind of event from an earthquake and the other examples given; plaintiff suggests that, when specific examples are mentioned, those not mentioned should be understood to be things of the same kind. Indeed, if the drafter of the policy intended to bring excavation—an obvious and common way of moving earth—within the exclusion, why was it not listed as an example while less common events were listed?

Similarly, plaintiff argues that the settling or cracking exclusion would not be thought, by an ordinary reader, to apply to settling or cracking that is the immediate and obvious result of some other event, such as the intentional removal of earth in the vicinity of the building. Read literally, the exclusion would apply, for example, where a refrigerator fell over and cracked a wall, but that can hardly have been the intent of the policy’s drafters.

We conclude that both plaintiffs and defendant’s readings of the clauses are reasonable. Our precedents require us to adopt the readings that narrow the exclusions, and result in coverage. As to the earth movement exclusion, our holding is also supported by precedent which, though not binding on us, is directly on point. Two Appellate Division cases and one federal district court decision have held that earth movement exclusions using identical language are not applicable to losses caused by excavation (Lee v State Farm Fire & Cas. Co., 32 AD3d 902 [2d Dept 2006]; Burack v Tower Ins. Co. of N.Y., 12 AD3d 167 [1st Dept 2004]; Wyatt v Northwestern Mut. Ins. Co. of Seattle, 304 F Supp 781 [D Minn 1969]). The parties have cited no case, and we have found none, applying the earth movement exclusion to intentional earth removal.

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

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

Order affirmed, with costs.


author: Jones, J.

text:
    [907 NE2d 696, 879 NYS2d 818]
    Jesus Fuentes, as Parent of a Disabled Child, Appellant, v Board of Education of the City of New York et al., Respondents.
    Argued March 24, 2009;
    decided April 30, 2009

      POINTS OF COUNSEL

      Lansner & Kubitschek, New York City (David J. Lansner and Jill M. Zuccardy of counsel), Advocates for Children of New York, Inc. (Shawn V. Morehead and Rebecca C. Shore of counsel), and Dewey & LeBoeuf LLP (Lawrence W. Pollack and Lisa A. Keenan of counsel) for appellant.
    I. The Domestic Relations Law recognizes that a noncustodial parent retains the right to participate in decisions pertaining to his or her child’s education. (Matter of Corey L v Martin L, 45 NY2d 383; People ex rel. Kropp v Shepsky, 305 NY 465; Meyer v Nebraska, 262 US 390; Matter of Roe v Doe, 29 NY2d 188; Matter of J. Children, 57 AD2d 568, 42 NY2d 804; Matter of Maureen G., 103 Misc 2d 109; Matter of Kenneth V., 307 AD2d 767; Matter of Bock [Breitung], 280 NY 349; People ex rel. Sisson v Sisson, 271 NY 285; Weiss v Weiss, 52 NY2d 170.) II. The Education Law extends rights to parents without regard to custodial status. (Brown v Board of Education, 347 US 483; Matter of Page v Rotterdam-Mohonasen Cent. School Dist., 109 Misc 2d 1049; Matter of Pawling Cent. School Dist. v New York State Educ. Dept., 3 AD3d 821.) III. New York law and policy, particularly in the context of special education, are furthered by recognizing the rights of noncustodial parents. (Schaffer v Weast, 546 US 49; School Comm. of Burlington v Department of Ed. of Mass., 471 US 359; People ex rel. Kropp v Shepsky, 305 NY 465; Friederwitzer v Friederwitzer, 55 NY2d 89.)

      Michael A. Cardozo, Corporation Counsel, New York City (Scott Shorr and Barry P Schwartz of counsel), for respondents.
    I. Under New York common law, plaintiff lacked authority to make educational decisions for M.F. (Braiman v Braiman, 44 NY2d 584; Matter of Tropea v Tropea, 87 NY2d 727; Wideman v Wideman, 38 AD3d 1318; Chamberlain v Chamberlain, 24 AD3d 589; Bliss v Ach, 86 AD2d 575, 56 NY2d 995; Weiss v Weiss, 52 NY2d 170; Matter of Fedash v Neilsen, 211 AD2d 1003; Matter of De Luca v De Luca, 202 AD2d 580; Parrinelli v Parrinelli, 138 Misc 2d 49; Mester v Mester, 58 Misc 2d 790.) II. This Court should reject plaintiffs attempt to establish a presumption that noncustodial parents have implicit authority to participate in educational decision-making. (Matter of Ring v Ring, 15 AD3d 406; Matter of Davis v Davis, 240 AD2d 928; Braiman v Braiman, 44 NY2d 584; Bliss v Ach, 56 NY2d 995; Voelker v Keptner, 156 AD2d 1014, 76 NY2d 783; Trapp v Trapp, 136 AD2d 178; Ting Yi Chu v Faye, 293 AD2d 425; Community Bd. 7 of Borough of Manhattan v Schaffer, 84 NY2d 148; Matter of Alonzo M. v New York City Dept. of Probation, 72 NY2d 662; Matter of Knight-Ridder Broadcasting v Greenberg, 70 NY2d 151.) III. Neither New York’s Education Law nor New York’s regulations implementing the Individuals with Disabilities Education Act create decision-making rights for noncustodial parents. (People ex rel. Kropp v Shepsky, 305 NY 465; Matter of Tropea v Tropea, 87 NY2d 727; Matter of Page v Rotterdam-Mohonasen Cent. School Dist., 109 Misc 2d 1049; Taylor v Vermont Dept. of Educ., 313 F3d 768.) IV. The presumption that custodial parents have exclusive authority to make educational decisions advances the main purpose of the Individuals with Disabilities Education Act. (Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v Rowley, 458 US 176; Matter of IG Second Generation Partners L.P. v New York State Div. of Hous. & Community Renewal, Off. of Rent Admin., 10 NY3d 474; Taylor v Vermont Dept. of Educ., 313 F3d 768; Navin v Park Ridge School Dist. 64, 270 F3d 1147.)
   OPINION OF THE COURT

Jones, J.

In this certified question case, we are called upon to decide whether a noncustodial parent retains the right to make decisions regarding the child’s education where the divorce decree and custody order are silent on this issue. The pertinent facts of this case are recited below.

Plaintiff Jesus Fuentes and his wife were divorced in 1996. Family Court entered an order granting the wife exclusive custody of the three children, including a son, M.F., who, due to a genetic disorder, was legally blind. M.F. attended public school in New York City and received special education services to accommodate his disability.

In 2000, plaintiff believed that M.F.’s special education services and accommodations were inadequate and requested a reevaluation. When the Committee on Special Education for the Hearing, Handicapped, and Visually Impaired responded that M.F’s services were adequate, plaintiff requested a hearing from the Impartial Hearing Office of the New York City Board of Education to review that determination. In 2001, plaintiffs request for a hearing was denied based on his status as the noncustodial parent of M.F. The Office concluded that because plaintiff was not the “person in parental relation” (Education Law § 3212), he did not have the right to make educational decisions pertaining to M.F. and, consequently, did not have a right to request a hearing.

Plaintiff then commenced an action in the United States District Court for the Eastern District of New York alleging, among other things, that he was denied his right under the federal Individuals with Disabilities Education Act (IDEA) to a hearing to review the determinations of the Board of Education. After a dismissal, appeal, and remand on issues not pertinent to the certified question, the District Court dismissed plaintiffs case for lack of standing under the IDEA. On appeal, the United States Court of Appeals for the Second Circuit found that no precedent from this Court directly addressed the dispositive issue and certified the following question:

“Whether, under New York law, the biological and non-custodial parent of a child retains the right to participate in decisions pertaining to the education of the child where (1) the custodial parent is granted exclusive custody of the child and (2) the divorce decree and custody order are silent as to the right to control such decisions” (Fuentes v Board of Educ. of City of N.Y., 540 F3d 145, 153 [2d Cir 2008]).

The purpose of the IDEA is to provide “all children with disabilities” with a “free appropriate public education” (20 USC § 1400 [d] [1] [A]). Such an education must include “special education and related services” designed to meet the particular needs of the child (20 USC § 1401 [9]). A qualifying child’s educational needs “and the services required to meet those needs must be set forth at least annually in a written individualized education plan (TEP’)” (M.C. ex rel. Mrs. C. v Voluntown Bd. of Educ., 226 F3d 60, 62 [2d Cir 2000]). A “parent” who is dissatisfied with an IEP “may file a complaint with the state or local educational agency,” to be resolved through a due process hearing (id. at 62-63).

The Second Circuit previously discussed a noncustodial parent’s rights under the IDEA in Taylor v Vermont Dept. of Educ. (313 F3d 768 [2d Cir 2002]). In Taylor, a noncustodial parent demanded a hearing under the IDEA even though her Vermont divorce decree expressly provided that the custodial parent was “ allocate[d] all legal rights and physical rights regarding the choice of schooling for the child” (id. at 772). The court concluded that the federal statutory scheme required the courts to turn to state law “to establish which potential parent has authority to make special education decisions for the child” (id. at 779). Applying Vermont law, the court held that the noncustodial parent lacked standing to request a hearing under the IDEA because her “parental right to participate in her daughter’s education has been revoked by a Vermont family court” (id. at 782).

This case presents an issue unanswered by Taylor—namely, whether a noncustodial parent has the right to initiate a hearing under the IDEA where the New York divorce decree and custody order grant exclusive custody to the custodial parent but are silent as to who has the authority to make decisions concerning the child’s education. In Weiss v Weiss (52 NY2d 170 [1981]), a Judge of this Court first alluded to the principle that a custodial parent has the right, absent controlling contrary provisions in a separation agreement, to determine the child’s secular and religious education programs (id. at 177 [Meyer, J., concurring]). It is now well settled in the Appellate Division that, absent specific provisions in a separation agreement, custody order, or divorce decree, the custodial parent has sole decision-making authority with respect to practically all aspects of the child’s upbringing (see e.g. Matter of Fedash v Neilsen, 211 AD2d 1003 [3d Dept 1995]; Matter of De Luca v De Luca, 202 AD2d 580 [2d Dept 1994]; De Beer v De Beer, 162 AD2d 165 [1st Dept 1990]; Stevenot v Stevenot, 133 AD2d 820 [2d Dept 1987]; Bliss v Ach, 86 AD2d 575 [1st Dept 1982]).

In appropriate circumstances, courts routinely include specific provisions in custody orders addressing decision-making authority between the parents (see e.g. Wideman v Wideman, 38 AD3d 1318 [4th Dept 2007]; Chamberlain v Chamberlain, 24 AD3d 589 [2d Dept 2005]; Matter of Davis v Davis, 240 AD2d 928 [3d Dept 1997]). Plaintiff asks this Court to recognize an implied right of noncustodial parents to exercise decision-making authority with respect to their child’s education notwithstanding the custody order’s silence on this subject. We decline to do so and emphasize the importance of parties determining these issues at the time of separation or divorce.

Finally, we note the distinction between a noncustodial parent’s right to “participate” in a child’s education and the right to “control” educational decisions. Generally, there is nothing which prevents a noncustodial parent (even one without any decision-making authority) from requesting information about, keeping apprised of, or otherwise remaining interested in the child’s educational progress. Such parental involvement is to be encouraged. However, unless the custody order expressly permits joint decision-making authority or designates particular authority with respect to the child’s education, a noncustodial parent has no right to “control” such decisions. This authority properly belongs to the custodial parent. In light of our discussion, we see fit to reformulate the certified question to read as follows:

“Whether, under New York law, the non-custodial parent of a child retains decision-making authority pertaining to the education of the child where (1) the custodial parent is granted exclusive custody of the child and (2) the divorce decree and custody order are silent as to the right to control such decisions.”

Accordingly, as reformulated, the certified question should be answered in the negative.

Judges Ciparick, Graffeo, Read, Smith and Pigott concur; Chief Judge Lippman 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, as reformulated, answered in the negative.


text:
    [908 NE2d 869, 880 NYS2d 879]
    Miliha Ferluckaj, Respondent, v Goldman Sachs & Co., Appellant, et al., Defendant. Goldman Sachs & Co., Third-Party Plaintiff, v American Building Maintenance Co., Third-Party Defendant.
    Argued February 19, 2009;
    decided April 2, 2009

      POINTS OF COUNSEL

      Wilson Elser Moskowitz Edelman & Dicker LLP, New York City (Christine Bernstock of counsel), for appellant and third-party plaintiff.
    I. There was absolutely no evidence which established or indicated that Goldman Sachs & Co. had the right or authority to control the work performed by plaintiff. (Guzman v L.M.P Realty Corp., 262 AD2d 99; Frierson v Concourse Plaza Assoc., 189 AD2d 609; Bart v Universal Pictures, 277 AD2d 4; Sweeting v Board of Coop. Educ. Servs., 83 AD2d 103.) II. The work plaintiff performed at the time of her accident was pursuant to the contract between Paramount Group, Inc. and American Building Maintenance Co., to which Goldman Sachs & Co. was not a party. III. Plaintiff was the sole proximate cause of her own accident and, as such, the Labor Law § 240 (1) claim should have been dismissed. (Broggy v Rockefeller Group, Inc., 8 NY3d 675; Montgomery v Federal Express Corp., 4 NY3d 805.)

      Michael J. Gaffney, Staten Island, for respondent.
    I. There are questions of fact as to whether Goldman Sachs & Co. had the right or authority to control the work performed by plaintiff. (Bart v Universal Pictures, 277 AD2d 4.) II. Plaintiff was not the sole proximate cause of her own accident and as such Labor Law § 240 (1) claims should not have been dismissed. (Balbuena v New York Stock Exch., Inc., 45 AD3d 279; Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280; Swiderska v New York Univ., 10 NY3d 792; Broggy v Rockefeller Group, Inc., 8 NY3d 675.)

      Thomas J. Maroney, Jericho, Fiedelman & McGaw (Andrew Zajac and Dawn C. DeSimone of counsel), Rona L. Platt, Uniondale, and Brendan T. Fitzpatrick, Albertson, for Defense Association of New York, Inc., amicus curiae.
    I. The Legislature did not envision that Goldman Sachs & Co.’s status as merely a lessee would expose it to liability as that of an “owner” under Labor Law § 240 (1), and this Court should dismiss the action against it. (Whelen v Warwick Val. Civic & Social Club, 47 NY2d 970; Zimmer v Chemung County Performing Arts, 65 NY2d 513; Russin v Louis N. Picciano & Son, 54 NY2d 311; Copertino v Ward, 100 AD2d 565; Wendel v Pillsbury Corp., 205 AD2d 527; Guzman v L.M.P Realty Corp., 262 AD2d 99; Bart v Universal Pictures, 277 AD2d 4; Zaher v Shopwell, Inc., 18 AD3d 339; Lacey v Long Is. Light. Co., 293 AD2d 718; Billman v CLFMgt., 19 AD3d 346.) II. Plaintiff’s actions were the sole proximate cause of the accident. (Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280; Narducci v Manhasset Bay Assoc., 96 NY2d 259; Robinson v East Med. Ctr., LP, 6 NY3d 550; Montgomery v Federal Express Corp., 4 NY3d 805; Egan v Monadnock Constr., Inc., 43 AD3d 692; Stark v Eastman Kodak Co., 256 AD2d 1134; Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35.)
   OPINION OF THE COURT

Smith, J.

Plaintiff fell off a desk on which she was standing while cleaning the inside of an office building window, in space leased to defendant Goldman Sachs & Co. We hold that, because uncontroverted evidence shows that Goldman did not hire plaintiffs employer to clean the window and that Goldman exercised no control over plaintiffs work, Goldman is not liable to plaintiff under Labor Law § 240 (1). Supreme Court and the Appellate Division erred in denying Goldman’s motion for summary judgment.

The building in question is at 32 Old Slip, in Manhattan. Goldman leased a number of floors from the building’s owner, Paramount Group, Inc. Paramount hired third-party defendant, American Building Maintenance Co. (ABM), to provide cleaning and janitorial services. Among ABM’s duties under its contract with Paramount was to clean the building’s windows every three months. Tenants, including Goldman, could and sometimes did contract directly with ABM for “special services,” but window cleaning was not treated as a special service. It was provided by Paramount to Goldman in exchange for the rent.

Plaintiff, an ABM employee, fell while she was cleaning a window on a floor that Goldman had not yet occupied. Goldman was scheduled to, and did, begin moving in on the day after the accident. Plaintiff claims, and we assume it to be true, that the cleaning she was working on was not a regular quarterly cleaning, but a special “preoccupancy” cleaning, to get the space ready for Goldman’s use. Preoccupancy cleanings, however, were also provided for in the Paramount-ABM contract, which requires ABM to provide such cleanings without extra cost to Paramount: “Prior to tenant occupancy, contractor shall provide the initial cleaning or [sic] all interior windows for which there will be no charge to Paramount Group, Inc. or tenant.”

There is no evidence in the record that Goldman hired ABM to perform either a regular quarterly cleaning or a preoccupancy cleaning. The contractor that Goldman used to do renovation work on the space, defendant Henegan Construction Co., Inc., did not subcontract any work to ABM.

In sum, the evidence points clearly and without contradiction to the conclusion that it was Paramount, not Goldman, that hired ABM to do the project on which plaintiff was working when she fell. Plaintiff does not claim that Goldman in fact supervised her work. Goldman therefore has no liability to plaintiff under Labor Law § 240 (1). The statute says:

“All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, 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.”

This statute places a duty on “contractors and owners and their agents.” It says nothing about lessees. That does not necessarily mean lessees can never be liable. Appellate Division cases have said that lessees who hire a contractor, and thus have the right to control the work being done, are “owners” within the meaning of the statute (Frierson v Concourse Plaza Assoc., 189 AD2d 609, 611 [1st Dept 1993]; Sweeting v Board of Coop. Educ. Servs., 83 AD2d 103, 114 [4th Dept 1981]; cf. Bart v Universal Pictures, 277 AD2d 4, 6 [1st Dept 2000] [occupant of space with power to control the work held “an agent of the fee owner”]). We assume, without deciding, that these cases are right, but they do not apply here. ABM was hired by the landlord, Paramount, not by Goldman, so there is no basis for holding Goldman to be an owner or owner’s agent (see Guzman v L.M.P. Realty Corp., 262 AD2d 99 [1st Dept 1999]).

Plaintiff concedes that she cannot prevail if Goldman had no right to control ABM’s work, but she says that the facts are not clear enough to justify granting Goldman summary judgment. She points out that, under the contract between Paramount and ABM, preoccupancy cleaning was to be done “upon request of Paramount,” and notes that the record contains no direct evidence of a “request.” Though it is clear that Goldman’s contractor, Henegan, did not hire ABM to do this work, plaintiff speculates that, for some reason, Goldman might have done so directly. Plaintiff emphasizes that Goldman did not submit an affidavit denying that such a transaction occurred.

We find plaintiff’s theorizing—and the somewhat more elaborate theories offered by the dissent—insufficient to defeat summary judgment. The idea that Goldman chose to hire ABM at its own expense, when ABM was already contractually obligated to Paramount to do the work for free, is farfetched. And if that did happen, plaintiff had an ample opportunity to show it. After taking discovery, she has unearthed no record of any payment for this service from Goldman to ABM, or any relevant communication between the two.

The burden of a party moving for summary judgment is to “make a prima facie showing of entitlement to judgment as a matter of law” (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The moving party need not specifically disprove every remotely possible state of facts on which its opponent might win the case. Goldman’s showing here was adequate to shift the burden to plaintiff “to produce evidentiary proof . . . sufficient to establish the existence of material issues of fact” (id.). Plaintiff has not carried that burden.

Accordingly, the order of the Appellate Division should be reversed, with costs, summary judgment granted dismissing the complaint as against Goldman Sachs & Co., and the certified question answered in the negative.

Pigott, J. (dissenting). We have held time and time again that summary judgment should not be granted when there is “any doubt” (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]) as to the existence of a triable issue or when the issue is “arguable” (id.; Barrett v Jacobs, 255 NY 520, 522 [1931]). “[I]f the issue is fairly debatable a motion for summary judgment must be denied” (Stone v Goodson, 8 NY2d 8, 12 [1960]). In other words, if it is reasonable to disagree about the material facts or about what may be inferred from undisputed facts, summary judgment may not be granted. Moreover, in deciding whether there is a material triable issue of fact, “the facts must be viewed in the light most favorable to the nonmoving party” (Matter of Council of City of N.Y. v Bloomberg, 6 NY3d 380, 401 [2006], citing Matsushita Elec. Industrial Co. v Zenith Radio Corp., 475 US 574, 587 [1986]). It follows that a split decision, such as this one, in which appellate judges disagree about what disputed facts may be inferred from undisputed facts, should be extremely rare.

A summary judgment motion is governed by a well-established shifting of the burden of proof. The movant’s failure to make a prima facie showing of entitlement to judgment as a matter of law “requires a denial of the motion, regardless of the sufficiency of the opposing papers” and it is only if the movant succeeds in making this showing that the burden shifts to the party opposing the motion (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Here, Goldman Sachs failed to sustain its initial burden of making a prima facie showing of entitlement to summary judgment.

Under New York case law that the majority does not question, a lessee is liable pursuant to Labor Law § 240 (1) if it has “the right to control the work being done” (majority op at 320, citing Sweeting v Board of Coop. Educ. Servs., 83 AD2d 103, 114 [4th Dept 1981], lv denied 56 NY2d 503 [1982]; Frierson v Concourse Plaza Assoc., 189 AD2d 609, 611 [1st Dept 1993]; Bart v Universal Pictures, 277 AD2d 4, 5 [1st Dept 2000]). The key question is whether “defendant had the right to insist that proper safety practices were followed ... it is the right to control the work that is significant, not the actual exercise or nonexercise of control” (Copertino v Ward, 100 AD2d 565, 567 [2d Dept 1984], citing Sweeting, 83 AD2d at 114). “[E]vidence that the lessee actually hired the general contractor” is relevant to establishing the right to control, as are “contractual or statutory provisions granting such right” (Bart, 277 AD2d at 5). The question for this Court is whether Goldman tendered sufficient evidence to eliminate any issue of fact concerning whether it had the right to control plaintiffs work. In my view, it did not.

Here, the majority relies exclusively on one document, a “Services Agreement” between Paramount Group, Inc., the building’s owner, and American Building Maintenance Co. (ABM), entered into as of June 1, 1997. An appendix to the contract, titled “EXHIBIT ‘C’ SPECIFICATIONS”—describing the “base building cleaning specifications” in regard to window cleaning—provides that “[p]rior to tenant occupancy, [ABM] shall provide the initial cleaning [of] all interior windows for which there will be no charge to Paramount Group, Inc. or tenant. Work to be performed upon request of Paramount Group Inc.” The majority infers from this single provision that Ferluckaj, who was cleaning the interior side of an exterior window, just prior to occupancy by Goldman, was doing so pursuant to Paramount’s orders. This inferential leap cannot be reconciled with the well-established standards of summary judgment outlined above.

The majority writes that “[t]he idea that Goldman chose to hire ABM at its own expense, when ABM was already contractually obligated to Paramount to do the work for free, is farfetched” (majority op at 320). I cannot agree. Far from answering the dispositive question, of who ordered the cleaning, as a matter of law, the Services Agreement raises several questions. Contrary to the majority’s suggestion that window cleaning was not treated as a special service that tenants could contract directly with ABM for (majority op at 319), the Services Agreement expressly states, in a section titled “SPECIAL SERVICES REQUIRED BY TENANTS,” that “[additional window cleaning” is one of the extra services that tenants may request and for which they will be directly charged by ABM.

At his deposition, Robert Barriero, a corporate services vice-president at Goldman, testified that in his understanding “[additional window cleaning” referred to the cleaning of “[ijnterior glass,” such as might be found in an interior doorway. And he insisted that, while Goldman hired ABM directly during occupancy to perform additional cleaning and maintenance services such as carpet cleaning and pantry maintenance, it did not hire ABM to do any window cleaning. Barriero’s testimony is, however, of limited value with respect to preoccupancy events. His knowledge of the “base building cleaning specifications” and the “special services” was confined to their postoccupancy implementation. In fact, Barriero admitted he was unaware of the preoccupancy renovations.

Barriero’s testimony was of limited use for another reason— Goldman outsourced its management services at the time in question to a company, Hines Interests Limited, that entered into and maintained all the contracts for services provided to Goldman at the building. Hines, as Goldman’s agent, entered into contracts for services not provided by the base building cleaning specifications contract, including the additional postoccupancy cleaning and maintenance services. Barriero testified that, if there were records concerning the purchase of additional ABM cleaning services by Goldman, they would not be in his possession. It remains undisputed that, under the Services Agreement, special window cleaning by ABM could be separately contracted for.

The Services Agreement is puzzling in another way. As the majority notes, ABM’s postoccupancy duties included cleaning the building’s windows once every three months. The pertinent provision states that ABM shall “[w]ash and clean all interior and exterior of windows and frames ... on every floor every three (3) months.” By contrast, the preoccupancy provision specifies “all interior windows,” omitting the possessive. As the majority reads it, the contract envisages three-monthly cleaning of the interior and exterior sides of all windows, plus an initial preoccupancy cleaning that would include the interior sides of exterior windows. This is a reasonable interpretation, but it is by no means the only reasonable one.

An alternative reading of the agreement is both literal and plausible. It is that there will be three-monthly cleaning of the interior and exterior sides of all windows, plus an initial preoccupancy cleaning of interior windows—glass panels neither side of which is outside the building. These would be precisely the windows that Barriero testified would not be included in “base building cleaning” and would normally be the subject of a separate contract between tenant and ABM. This interpretation makes sense of the clause that provides that “there will be no charge to Paramount Group, Inc. or tenant” for this cleaning. Since the context is a list of base building cleaning services that are provided to tenants at the owner’s expense, the added language specifying that there will be no charge in this one instance is odd. It is explicable if it refers to a service that would normally, postoccupancy, be regarded as an additional service to be paid by the tenant. I conclude that it is reasonable to doubt whether the Services Agreement provided for preoccupancy cleaning of the interior sides of exterior windows.

Moreover, under the Services Agreement, the only preoccupancy cleaning of any kind that ABM contracted to do was “the initial cleaning [of] all interior windows.” That seems a peculiar choice of item to clean prior to a tenant moving in. One would expect an owner to require the cleaning service it contracts with to carry out further services, such as carpet shampooing, wall washing and dusting, before a tenant moves in. Moreover, Goldman retained defendant Henegan Construction Co., Inc., as construction manager, to supervise a “complete renovation” of the floor on which Ferluckaj’s accident occurred, prior to occupancy. The accident occurred after the renovation and immediately before occupancy. In these circumstances, unless Henegan and its subcontractors could be relied on to clean up the dust and dirt that their work created (as opposed to the large pieces of debris associated with construction work that laborers would normally remove themselves), extensive cleaning would have to be performed by ABM. In short, there was a large amount of preoccupancy cleaning that ABM was not contractually obliged to do, under the Services Agreement, but which any corporate tenant would surely have expected.

Either the Services Agreement incompletely describes the responsibilities of ABM or tenants contracted separately with ABM for preoccupancy cleaning. We do not know whether Goldman had to hire ABM at its own expense to clean carpets, walls, doors and ceilings, between the renovation and occupancy. (Goldman was required by its lease to use ABM for any additional cleaning services.) If it did, it likely contracted with ABM for preoccupancy cleaning of the interior sides of exterior windows, including those Ferluckaj was cleaning when she fell. I note that ABM was accustomed to doing additional window cleaning work, over and above the base building specifications. Al Hoti, an ABM manager, testified that, although the postoccupancy cleaning of the interior sides of exterior windows was part of base building cleaning, nevertheless “it all depends how many cycles [of cleaning] the contract calls for ... if a tenant requests . . . more cleaning, then [ABM] can get more cleaning done.”

We simply do not know which contract governed Ferluckaj’s cleaning, because discovery did not answer that question. This would be a very different case if Goldman had produced an affidavit stating that the cleaning was done pursuant to the Services Agreement. Then Ferluckaj, if she failed to respond to that affidavit, might be deemed to admit it (Kuehne & Nagel v Balden, 36 NY2d 539, 544 [1975]). But Goldman produced no such affidavit, and, as noted above, the relevant deposition testimony mainly concerned postoccupancy events, shedding no light on who ordered the preoccupancy cleaning.

Because, having read the Services Agreement, as well as the deposition transcripts and affidavits submitted by the parties in their summary judgment motions, I still have considerable “doubt” (Sillman, 3 NY2d at 404) as to whether Goldman had the right to control Ferluckaj’s work, I would affirm the order of the Appellate Division, deny so much of Goldman’s motion as sought summary judgment dismissing Ferluckaj’s Labor Law § 240 (1) claim, and answer the certified question in the affirmative.

I conclude by noting that I would expect the majority opinion in this case to have fairly limited precedential value. This is a fact-specific area of law in which almost every case is sui generis.

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

Order reversed, with costs, that part of defendant Goldman Sachs & Co.’s motion seeking summary judgment dismissing plaintiffs Labor Law § 240 (1) claim granted, complaint against Goldman Sachs & Co. dismissed in the entirety, and certified question answered in the negative.


author: Graffeo, J.

text:
    [908 NE2d 878, 880 NYS2d 888]
    The People of the State of New York, Respondent, v Jonathan Mattocks, Appellant.
    Argued March 26, 2009;
    decided April 30, 2009

      POINTS OF COUNSEL

      Simpson Thacker & Bartlett LLP, New York City (Brian P. McCloskey of counsel), and Office of the Appellate Defender (Richard M. Greenberg and Sara Gurwitch of counsel) for appellant.
    I. The trial court erred in denying Jonathan Mattocks’s motion for a trial order of dismissal because Mr. Mattocks did not possess a forged instrument as a matter of law. (People v Cunningham, 2 NY3d 593; People v Grant, 185 Misc 2d 512; People v Lawrence, 169 Misc 2d 752; People v Pena, 169 Misc 2d 366; People v Hodges, 246 AD2d 824; People v Snyder, 274 App Div 371, 298 NY 858; People v Clark, 190 Misc 725; People v Teal, 196 NY 372; People v Sansanese, 17 NY2d 302; People v Abeel, 182 NY 415.) II. The trial court erred in denying Jonathan Mattocks a suppression hearing where Mr. Mattocks had standing and set forth a sufficient factual basis in his motion. (People v Mendoza, 82 NY2d 415; People v Hightower, 85 NY2d 988; People v Marquez, 246 AD2d 330; People v Vasquez, 200 AD2d 344; People v Huggins, 162 AD2d 129.)

      Robert M. Morgenthau, District Attorney, New York City (Gina Mignola and Amyjane Rettew of counsel), for respondent.
    I. A MetroCard that has been purposefully bent to alter the zero-value field is a forged instrument. (Matter of D. U, 192 Misc 2d 601; People v Abeel, 45 Misc 86, 100 App Div 516, 182 NY 415; People v Blase, 57 App Div 585; People v Gibbs, 210 AD2d 4; People v Roberts, 208 AD2d 410; People v Greenberg, 89 NY2d 553; People v Webb, 5 AD3d 115; People v Colon, 306 AD2d 213; People v L.R., 13 Misc 3d 1212[A], 2006 NY Slip Op 51800[U]; People v Griffin, 10 Misc 3d 1057[A], 2005 NY Slip Op 52006[U].) II. The Court correctly ruled that defendant had not made out any basis for a hearing on his motion to suppress physical evidence. (People v Mendoza, 82 NY2d 415; People v Gruden, 42 NY2d 214; People v Burton, 6 NY3d 584; People v Murray, 172 AD2d 437; People v Lopez, 5 NY3d 753; People v Hightower, 85 NY2d 988; People v Landy, 59 NY2d 369; People v Moreno, 223 AD2d 450; People v Jones, 95 NY2d 721; People v Reynolds, 71 NY2d 552.)
   OPINION OF THE COURT

Graffeo, J.

In this case, we are asked whether the forgery provisions of Penal Law article 170 apply to Metropolitan Transportation Authority “MetroCards” that were purposefully bent in order to obtain free fares. We hold that this type of alteration can be prosecuted as a forgery.

I

The Metropolitan Transportation Authority (MTA) is responsible for operating the mass transit system in the New York City area. In years past, a person gained access to the subways by purchasing a token and depositing it into a turnstile. This mechanical means of entry was eventually replaced with a computerized system that uses a “MetroCard”—a plastic swipe card that is “read” by a scanner, embedded within a turnstile, that deducts the cost of the fare from the MetroCard.

There are two types of MetroCards: value-based MetroCards (referred to as “pay-per-ride” cards) and time-based Metro-Cards (referred to as “unlimited” cards). A purchaser of a time-based card is provided unlimited transportation access for a specified period of time (one day, one week or one month depending on the purchase price). The purchaser of a value card electronically stores a certain amount of money on the Metro-Card that will be debited each time the user enters the MTA system. Only value cards are at issue in this appeal.

A MetroCard has two distinct magnetic fields that contain information, referred to as the primary and secondary fields. The MTA opted to use two fields so that the information encoded onto the card has “backup” storage in the event that a magnetic field is damaged. Based on the testimony of an MTA expert in this case, when a value-based MetroCard is swiped through the electronic eye of a turnstile, a computer reads both magnetic fields. If the MetroCard has monetary value remaining, the turnstile grants access and deducts the cost of the ride from the value of the card, amending the information stored on the magnetic strip to reflect the reduction in value. Thus, the expert explained, if a MetroCard is bought for $4 in value, that amount is initially encoded onto both the primary and secondary fields. When the card is first used for a $2 fare, the computer will deduct $2 from one of the fields, leaving the other field at $4. The next time the MetroCard is swiped for entry, the computer does not change the $2 field but instead reduces the $4 field to zero. Once one of the fields reads zero, the turnstile is not supposed to open. By utilizing this design methodology, which electronically leaves $2 of value on one of the magnetic fields even though the purchased value has been depleted to zero, the MTA intended to give riders “the benefit of the doubt” in the event that the magnetic strip was damaged. Thus, if the computer eye in the turnstile cannot determine the true remaining purchase value but can read the $2 backup field, one ride can be obtained.

Individuals seeking free rides on the subway soon learned how to take advantage of the system’s design. By creating a small bend or crease on the section of the magnetic strip where the zero-value field is contained, a person can obliterate that information so that, when swiped, the computer is unable to detect that the MetroCard is worthless, meaning no purchase value remains. When there is a strategically-placed crease or bend on the card, the turnstile computer will read the other field containing the $2 “backup” information, which gives the user of the card a free entry to the subway. Hence, a person can bend a valueless MetroCard and swipe it once, then use or sell the free ride at a discounted price by swiping it a second time (this is referred to as “selling swipes”). The ease of this type of alteration and its popularity among individuals who are willing to defraud the MTA contributed to considerable losses of revenue for the MTA—it was estimated that as of 2005, fraudulent MetroCard use was costing the MTA approximately $16 million per year, the equivalent of about eight million ride fares.

II

One night in October 2005, an MTA employee working at the 125th Street station of the Lexington Avenue subway line reported that several individuals were selling MetroCard swipes. Two police officers responded and observed defendant bend MetroCards and swipe them through turnstiles, after which he solicited riders and gave them access to the subway using the bent MetroCards in exchange for money. When an officer approached defendant, he attempted to flee but was quickly apprehended with 14 MetroCards in his possession, all of which had the telltale crease; 11 of the cards had zero value and three of them had been successfully altered and would have each yielded a free ride. After he was in custody, defendant remarked to the police that “you better watch your back. I’m gonna serve 3 months. When I come out, you better just shoot me in the head, because I’m going to kill you.” The reference to three months of incarceration appears to have stemmed from defendant’s numerous prior convictions for MTA-related offenses and his apparent assumption that he would be facing charges under Penal Law § 165.16—a class B misdemeanor—for the unauthorized sale of certain transportation services.

Instead of pursuing misdemeanor charges, the People secured an indictment charging defendant with 14 counts of criminal possession of a forged instrument in the second degree, class D felony offenses. Defendant moved to suppress the MetroCards and cash that he had possessed at the time of the arrest, along with his statement to the police. Supreme Court denied the motion. During the ensuing jury trial, defendant moved to dismiss the charges, arguing that the evidence was insufficient to prove that he committed possession of a forged instrument, and Supreme Court reserved decision.

At the close of proof, the court submitted only one count of second-degree possession of a forged instrument to the jury. The jury convicted defendant of that crime and Supreme Court subsequently denied defendant’s motion to dismiss. Defendant was adjudicated a second felony offender and sentenced to 2 to 4 years of imprisonment. The Appellate Division affirmed (51 AD3d 301 [1st Dept 2008, Nardelli, J.]), a Judge of this Court granted leave (11 NY3d 738 [2008]) and we now agree with the well-reasoned opinion of the Appellate Division.

Ill

Article 170 of the Penal Law defines the crime of forgery and related offenses. A person commits criminal possession of a forged instrument in the second degree “when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he utters or possesses any forged instrument of a kind specified in section 170.10” (Penal Law § 170.25). Section 170.10 applies to a “written instrument” that a person “falsely makes, completes or alters” and “which is or purports to be, or which is calculated to become or to represent if completed . . . [p]art of an issue of tokens, public transportation transfers, certificates or other articles manufactured and designed for use as symbols of value usable in place of money for the purchase of . . . services” (Penal Law § 170.10 [4]). A “written instrument” under section 170.10 includes

“any instrument or article, including computer data or a computer program, containing written or printed matter or the equivalent thereof, used for the purpose of reciting, embodying, conveying or recording information, or constituting a symbol or evidence of value, right, privilege or identification, which is capable of being used to the advantage or disadvantage of some person” (Penal Law § 170.00 [1]).

In this case, defendant concedes, and we agree, that a Metro-Card satisfies the statutory definition of a “written instrument.”

Defendant maintains, however, that a bent MetroCard does not qualify as a “forged” instrument because it is not “falsely altered” (see Penal Law § 170.00 [7]). An instrument is falsely altered

“when, without the authority of anyone entitled to grant it, he changes a written instrument, whether it be in complete or incomplete form, by means of erasure, obliteration, deletion, insertion of new matter, transposition of matter, or in any other manner, so that such instrument in its thus altered form appears or purports to be in all respects an authentic creation of or fully authorized by its ostensible maker or drawer” (Penal Law § 170.00 [6]).

According to defendant, since the MTA does not sell Metro-Cards with creases, no person who examines a bent MetroCard would conclude that it was authentic, and it is therefore void on its face and not subject to the forgery statutes. Defendant also argues that a bent MetroCard is not a forged instrument because the damage does not create value on a worthless card, it merely prevents the turnstile computer from determining that the card has no value.

We reject these assertions. While it is true, as defendant submits, that the creasing of the MetroCards did not add monetary value where none existed, the damage to the Metro-Cards thwarted the usual computer processing of the information contained on the magnetic strips. By bending the Metro-Cards, defendant successfully destroyed the zero-value information encoded on one of the fields in the magnetic strips (see Penal Law § 170.00 [6]) and was able to acquire free rides on what were worthless MetroCards. Thus, defendant misused the “benefit of the doubt” system by intentionally making the valueless MetroCards purport to be authentic instruments. Nor did the small creases on the MetroCards make them appear to be inauthentic—in other words, not genuine MTA-issued Metro-Cards—to the human eye, they merely rendered the cards slightly bent. Notwithstanding this minimal physical blemish on the cards, they “appear[ed] or purported] to be in all respects an authentic creation of or fully authorized by” the MTA as $2 MetroCards (Penal Law § 170.00 [6]) and were not void on their face. We therefore hold that the MetroCards defendant possessed were forged instruments under article 170 of the Penal Law.

Defendant additionally claims that the Legislature, in enacting Penal Law § 165.16 (a class B misdemeanor) to deal specifically with illegal MetroCard activity, determined that this type of conduct was not to be prosecuted under article 170. The statute was adopted in 2005 to address MetroCard abuses and applies to the sale of certain transportation services provided by the MTA through the use of an “unlimited farecard or doctored farecard” (Penal Law § 165.16 [1]), which can include a bent MetroCard similar to the ones defendant possessed (see Penal Law § 165.16 [3] [c]). The executive memorandum described the statute’s purpose:

“Under current law, these illegal MetroCard swipers can often only be charged with a non-criminal violation, the penalty for which has proved unsuccessful in deterring this type of illegal activity. Also, since current violations do not appear on the perpetrators’ records, there is no easy way to keep track of repeat offenders. This bill would help correct this situation by subjecting the swipers to misdemeanor criminal penalties of up to one year in jail” (2005-2006 Executive Budget, Transportation Article VII Legislation Mem in Support, NY Assembly Bill A1924-A, at 10-11).

Although this statement indicates that a relevant provision addressing this type of conduct appears in 21 NYCRR 1050.4 (a noncriminal violation for the unlawful receipt of fare for providing access to Transit Authority facilities), there was no legislative direction to eliminate the applicability of forgery statutes. The primary governmental concern was that a violation as the penalty was ineffective as a deterrent and hampered the detection of repeat offenders.

Furthermore, we have recognized that the existence of “a statutory prohibition against a particular type of conduct”— such as Penal Law § 165.16—“will not be deemed to constitute the exclusive vehicle for prosecuting that conduct unless the Legislature clearly intended such a result” (People v Duffy, 79 NY2d 611, 614 [1992]; see People v Walsh, 67 NY2d 747, 749 [1986]; People v Bergerson, 17 NY2d 398, 401 [1966]). This intent cannot be imputed to the Legislature solely by virtue of the enactment of section 165.16 because the Legislature is presumed to be aware of existing law when it creates a new crime (see e.g. People v Robinson, 95 NY2d 179, 184 [2000]). Prior to the codification of section 165.16, it had been acknowledged that the forgery statutes had been intentionally written in a broad fashion to encompass a wide range of conduct (see People v Gottlieb, 36 NY2d 629, 632 [1975]; People v Abeel, 182 NY 415, 421 [1905]). Notably, the use of “slugs” in place of tokens at subway turnstiles had been upheld as a forgery (see e.g. People v Gibbs, 210 AD2d 4 [1st Dept 1994]; People v Roberts, 208 AD2d 410 [1st Dept 1994]). As the modern-day equivalent of “slugs,” the illegal use of altered MetroCards remains eligible for prosecution as a forgery despite the enactment of Penal Law § 165.16.

This type of conduct is subject to varying degrees of prosecution, including the noncriminal violation under 21 NYCRR 1050.4 (c) and the A misdemeanor pursuant to Penal Law § 170.20 (criminal possession of a forged instrument in the third degree), in addition to the class D felony and class B misdemeanor offenses. Thus, prosecutors have considerable discretion in choosing among these classifications, having due regard for the accused’s prior history of defrauding or attempting to defraud the MTA, and other relevant considerations. We trust that felony forgery prosecutions involving bent or altered MetroCards will be reserved for individuals, like defendant, who have been repeatedly prosecuted and convicted for abusing the MetroCard system.

Consequently, we conclude that defendant is not entitled to vacatur of his conviction of criminal possession of a forged instrument in the second degree.

IV

Defendant alternatively argues that his motion to suppress the MetroCards, cash and his statement should not have been denied without a hearing. Although Supreme Court incorrectly believed that defendant lacked standing to pursue suppression (see People v Burton, 6 NY3d 584, 588-589 [2006]), the motion was properly denied without a hearing. A police officer averred that he had observed defendant swipe three people into the subway in exchange for money from the riders. Although defendant maintained that he was merely “speaking with various neighborhood acquaintances,” he never challenged the assertion that he had been selling swipes. Hence, the police officer’s unchallenged statement was sufficient to provide probable cause for the arrest and there was no factual dispute on a material issue that needed to be resolved before a decision could be rendered on the suppression motion.

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

Chief Judge Lippman and Judges Ciparick, Read, Smith, Pigott and Jones concur.

Order affirmed.

      . The executive proposal called for the creation of a class A misdemeanor offense. The Legislature amended that request by making the new crime punishable as a class B misdemeanor.

      . Similar charging discretion is available in connection with turnstile jumping, which can be prosecuted under various statutes, such as failure to pay a fare (21 NYCRR 1050.4 [a] [a noncriminal violation]), criminal trespass (Penal Law § 140.05 [a violation]), criminal trespass in the third degree (Penal Law § 140.10 [a B misdemeanor]) or theft of services (Penal Law § 165.15 [3] [an A misdemeanor]).


author: Read, J.

text:
    [907 NE2d 702, 879 NYS2d 824]
    In the Matter of George Infante, as Administrator of the Estate of Rosemary A. Infante, Deceased, Respondent, v Caroline R. Dignan, M.D., as Medical Examiner of Monroe County, et al., Appellants.
    Argued March 25, 2009;
    decided May 5, 2009

      POINTS OF COUNSEL

      Daniel M. De Laus, Jr., County Attorney, Rochester (Howard A. Stark and Michael E. Davis of counsel), for appellants.
    The Fourth Department majority improperly applied a presumption against suicide and superseded the deputy medical examiner’s determination with its own opinion. (Schelberger v Eastern Sav. Bank, 60 NY2d 506; Rinaldo v New York City Tr. Auth., 39 NY2d 285; Begley v Prudential Ins. Co. of Am., 1 NY2d 530; People v Miller, 257 NY 54; People v Cuozzo, 292 NY 85; People v Jandelli, 116 Misc 2d 384; Lauer v City of New York, 95 NY2d 95; Flacke v Onondaga Landfill Sys., 69 NY2d 355; Matter of City of Rensselaer v Duncan, 266 AD2d 657; Matter of Yarbough v Franco, 95 NY2d 342.)

      Paul F. Stavis, Castleton-on-Hudson, and Kenneth J. Doyle for respondent.
    I. The presumption against suicide applies to the medical examiner under the common law, the Constitution and the case law of the State of New York. (Washington v Glucksberg, 521 US 702; Matter of Von Holden v Chapman, 87 AD2d 66; Matter of Senior v Boyle, 221 NY 414; Matter of Leib v Paparo, 84 AD2d 538, 55 NY2d 603; Schelberger v Eastern Sav. Bank, 60 NY2d 506; Shipman v Protected Home Circle, 174 NY 398; Duhan v Milanowski, 75 Misc 2d 1078; Matter of Merlin v Bradess, 17 Misc 2d 724; Matter of Newbrand v City of Yonkers, 285 NY 164; Begley v Prudential Ins. Co. of Am., 1 NY2d 530.) II. Even if the presumption against suicide is held not to apply to the medical examiner in this case, the determination by the Monroe County medical examiner of suicide as the manner of death of Rosemary A. Infante is arbitrary and capricious such that no reasonable person would be expected to make it. (Matter of Mitchell v Helpern, 17 AD2d 922, 14 NY2d 817; Green v

      William, Penn Life Ins. Co. ofN.Y., 48 AD3d 37; Wallwork v New York Life Ins. Co., 38 AD2d 804; Schelberger v Eastern Sav. Bank, 60 NY2d 506; Rivers v Katz, 67 NY2d 485; Matter of Ansonia Residents Assn. v New York State Div. of Hous. & Community Renewal, 75 NY2d 206; Matter of SoHo Alliance v New York City Bd. of Stds. & Appeals, 264 AD2d 59; Matter of Goldstein Constr. Corp. v Gliedman, 117 AD2d 170.) III. This Court should affirm the Appellate Division’s order directing the medical examiner “to amend the corrected death certificate of Rosemary A. Infante forthwith to state that the manner of death was accidental or undetermined circumstances.” IV. The supplemental record contains materials that were utilized by the court below, by the medical examiner, or are otherwise public records. (Matter of Altimari v Meisser, 23 AD2d 672; Dunham v Townshend, 118 NY 281.)

      Michael A. Cardozo, Corporation Counsel, New York City (Leonard J. Koerner, Barry P Schwartz and Scott Shorr of counsel), for Office of the Chief Medical Examiner of the City of New York, amicus curiae.
    The three-Justice Appellate Division majority erred by abandoning the rational basis standard of review, applying a presumption against suicide, and substituting its judgment for the judgment of the medical examiner. (Matter of Mitchell v Helpern, 17 AD2d 922, 14 NY2d 814; Matter of Soman v Di Maio, 58 AD2d 521; Matter of Merlin v Bradess, 17 Misc 2d 724; Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222; Matter of Walker v State Univ. of N.Y. [Upstate Med. Univ.], 19 AD3d 1058, 5 NY3d 713; Wellisch v John Hancock Mut. Life Ins. Co., 293 NY 178; Broun v Equitable Life Assur. Socy. of U. S., 69 NY2d 675; Begley v Prudential Life Ins. Co. of Am., 1 NY2d 530; Garrow v State of New York, 268 App Div 534, 294 NY 741.)

      Tobin and Dempf LLP, Albany (Michael L. Costello of counsel), for Most Reverend Howard J. Hubbard, D.D., amicus curiae.
    Properly applied, the presumption against suicide should exhibit recognition and consideration of a decedent’s religious faith.
   OPINION OF THE COURT

Read, J.

Because of the circumstances of decedent Rosemary A. Infante’s death on April 16, 2006, the Monroe County Office of the Medical Examiner investigated its cause. In an autopsy report dated August 8, 2006, the medical examiner assigned to the case, an experienced forensic pathologist, concluded that decedent had died of multiple drug intoxication and that the manner of her death was suicide.

On December 8, 2006, petitioner George Infante, decedent’s father and the administrator of her estate, commenced this CPLR article 78 proceeding, alleging that “th[e] classification of decedent’s death as a suicide [was] not based upon any credible evidence and [was] simply speculation, and as such the finding [was] arbitrary and capricious and/or an abuse of discretion.” He sought a declaration that the manner of decedent’s death was unintentional or undetermined rather than suicide.

On February 2, 2007, Supreme Court dismissed the petition, adopting the reasoning of the Appellate Division’s decision in Matter of Mitchell v Helpern (17 AD2d 922 [1st Dept 1962], affd without op 14 NY2d 817 [1964]), where a petitioner likewise sought to compel a medical examiner to revise a death certificate attributing death to suicide. Quoting Mitchell, the trial judge observed that “[w]hen the medical and other facts could sustain different inferences, ‘the determinations of the medical examiners must be sustained as far as their entries on the public record are concerned unless the determinations are arbitrary’ and that “ ‘[a] public determination is arbitrary when no reasonable man would be expected to make it.’ ” Applying these principles to the facts of the case, Supreme Court acknowledged that “[a]n impartial evaluation of the medical and factual circumstances . . . could result in differing conclusions of the manner of death as an accident or cause unknown or suicide”; however, because “[t]here [was] sufficient information on the record for a reasonable person to make the finding of suicide,” the medical examiner’s “determination of the manner of death as suicide . . . [was] not arbitrary.”

On appeal, the Appellate Division, with two Justices dissenting, reversed on the ground that “the evidence before [the medical examiner] was insufficient to rebut the presumption against suicide” (Matter of Infante v Dignan, 55 AD3d 1258, 1259 [4th Dept 2008]). The majority recognized that the medical examiner’s “determination was based upon the autopsy and toxicology report as well as information concerning the scene of the death,” but nonetheless concluded that “the evidence from which the determination was made failed to rebut the presumption against suicide, and thus . . . [was] arbitrary and capricious” (id. at 1261).

The two dissenting Justices would have applied the CPLR article 78 standard of review unencumbered by any common-law presumption. As a result, although there were facts “ suggesting] that [the medical examiner’s] determination of suicide may well [have been] mistaken,” his determination was not “arbitrary or irrational” in their view (id. at 1263). The dissenting Justices found no authority indicating that the presumption against suicide—an evidentiary rule in litigation involving life insurance claims—was relevant where “a medical examiner . . . discharged] his or her administrative function of determining the means or manner of an unattended death” (id. at 1262, quoting County Law § 674 [3] [a] [internal quotation marks omitted]). The double dissent on an issue of law brought the case to us (see CPLR 5601 [a]), and we now reverse.

New York’s common-law presumption against suicide has no role to play in a medical examiner’s determination of the cause or manner of a decedent’s death, or the judicial review of such a determination (see e.g. Public Health Law § 4143 [3] [directing medical examiner to certify whether a death from external causes was “probably accidental, suicidal or homicidal” (emphasis added)]). The presumption is an evidentiary rule relevant to resolving disputes over life insurance proceeds (see Green v William Penn Life Ins. Co. of N.Y., 12 NY3d 342 [2009] [decided today]). We have never considered the presumption in any other context.

As a statutory matter, the County Law requires a medical examiner to “determine the means or manner of death” (County Law § 674 [3] [a]; § 671) for the benefit of the public at large rather than for the benefit of individuals, including a decedent’s family members (see e.g. Lauer v City of New York, 95 NY2d 95 [2000] [New York City medical examiner did not owe duty of care to father of child whose death was wrongly attributed to homicide]). If medical examiners were forced to leaven their decision-making with a common-law evidentiary presumption, the medical and scientific quality of their work would be seriously compromised to the detriment of the citizenry.

In this case, there is evidentiary support for the medical examiner’s determination of suicide, although—as every judge who has reviewed the record has observed—there is also reason to believe that decedent may have accidentally overdosed on prescription medication. As was pointed out 47 years ago in Mitchell, “[i]n ... an arguable situation capable of sustaining different inferences, the determinations of the Medical Examiners must be sustained . . . unless [they] are arbitrary” (17 AD2d at 922).

Here, the medical examiner’s determination was not arbitrary. He performed an autopsy, during which he removed samples of decedent’s heart blood, urine, liver, brain, and gastric contents for comprehensive drug screen analysis. The results of this analysis, which were reported by an experienced forensic toxicologist, disclosed an extremely high heart blood concentration of the drug fluoxetine (commercially known as Prozac)—a level 18 to 20 times higher than would be expected with normal therapeutic usage. In addition, the level of a fluoxetine metabolite in decedent’s liver was comparatively high in relation to the parent drug’s level in her heart blood. The medical examiner characterized these autopsy and toxicological findings as “most significant” in leading him to conclude that decedent’s manner of death was suicide. In his opinion, these levels and their ratio were consistent with intentional excessive consumption, but not chronic overusage or accidental overdose. In short, the medical examiner set forth a reasonable basis for his determination in an area where administrative judgment involves specialized medical and scientific expertise (see generally Flacke v Onondaga Landfill Sys., 69 NY2d 355, 363 [1987] [“where . . . the judgment of the agency involves factual evaluations in the area of the agency’s expertise and is supported by the record, such judgment must be accorded great weight and judicial deference”]).

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

Chief Judge Lippman and Judges Ciparick, Smith, Pigott and Jones concur; Judge Graffeo taking no part.

Order reversed, etc.