author: Chief Judge Kaye.

text:
    [840 NE2d 572, 806 NYS2d 460]
    In the Matter of Aneudis Perez et al., Appellants, v City University of New York et al., Respondents.
    Argued October 19, 2005;
    decided November 17, 2005

      POINTS OF COUNSEL

      Ronald, B. McGuire, New York City, for appellants.
    I. The Court of Appeals has construed the Open Meetings Law and Freedom of Information Law broadly, consistent with the manifest public purpose of both statutes. (Matter of Gordon v Village of Monticello, 87 NY2d 124; Matter of Buffalo News v Buffalo Enter. Dev. Corp., 84 NY2d 488; Matter of Orange County Publs., Div. of Ottaway Newspapers v Council of City of Newburgh, 45 NY2d 947; Matter of Holden v Board of Trustees of Cornell Univ., 80 AD2d 378; Matter of Smith v City Univ. of N.Y., 92 NY2d 707; Matter of Csorny v Shoreham-Wading Riv. Cent. School Dist., 305 AD2d 83; Matter of Weston v Sloan, 84 NY2d 462; Matter of Russo v Nassau County Community Coll., 81 NY2d 690; Kwasnik v City of New York, 262 AD2d 171.) II. The College Senate is a public body performing a government function under Public Officers Law (Open Meetings Law) § 102 (2). (Matter of Smith v City Univ. of N.Y., 92 NY2d 707; Matter of Mendez v Reynolds, 248 AD2d 62; Matter of Polishook v City Univ. of N.Y., 234 AD2d 165, 91 NY2d 867; Goodson Todman Enters. v Town Bd. of Milan, 151 AD2d 642, 74 NY2d 614; Matter of Poughkeepsie Newspaper Div. of Gannett Satellite Info. Network v Mayor’s Intergovernmental Task Force on N.Y. City Water Supply Needs, 145 AD2d 65; New York Pub. Interest Research Group v Governor’s Advisory Commn. [Problems Relating to Liab. Ins.], 133 Misc 2d 613, 135 AD2d 1149, 71 NY2d 964; Matter of Syracuse United Neighbors v City of Syracuse, 80 AD2d 984, 55 NY2d 995; Matter of MFY Legal Servs. v Toia, 93 Misc 2d 147; Matter of American Socy. for Prevention of Cruelty to Animals v Board of Trustees of State Univ. of N.Y., 165 AD2d 561, 79 NY2d 927; Matter of Daily Gazette Co. v North Colonie Bd. of Educ., 67 AD2d 803.) III. The College Senate is an agency as defined by Public Officers Law (Freedom of Information Law) § 86 (3). (Matter of Citizens for Alternatives to Animal Labs v Board of Trustees of State Univ. of N.Y., 92 NY2d 357; Matter of Encore Coll. Bookstores v Auxiliary Serv. Corp. of State Univ. of N.Y. at Farmingdale, 87 NY2d 410; Matter of Russo v Nassau County Community Coll., 81 NY2d 690; Kwasnik v City of New York, 262 AD2d 171; Matter of Stoll v New York State Coll. of Veterinary Medicine at Cornell Univ., 94 NY2d 162; Matter of Buffalo News v Buffalo Enter. Dev. Corp., 84 NY2d 488; Matter of Russo v Nassau County Community Coll., 81 NY2d 690; Matter of Capital Newspapers, Div. of Hearst Corp. v Whalen, 69 NY2d 246.) IV The Open Meetings Law and Freedom of Information Law prohibit the College Senate from voting by secret ballot. (Smithson v Ilion Hous. Auth., 130 AD2d 965.)

      Michael A. Cardozo, Corporation Counsel, New York City (Mordecai Newman and Larry A. Sonnenshein of counsel), for respondents.
    I. The doctrine that advisory bodies lacking decision-making power are not subject to the Open Meetings Law remains uncontradicted at the appellate level. This doctrine reflects a balance between the competing values of transparent public decision making and the free and unconstrained rendering of advice. (Matter of Orange County Publs., Div. of Ottaway Newspapers v Council of City of Newburgh, 45 NY2d 947; Matter of Poughkeepsie Newspaper Div. of Gannett Satellite Info. Network v Mayor’s Intergovernmental Task Force on N.Y. City Water Supply Needs, 145 AD2d 65; New York Pub. Interest Research Group v Governor’s Advisory Commn. [Problems Relating to Liab. Ins.], 133 Misc 2d 613, 135 AD2d 1149; Kingston Assoc. v LaGuardia, 156 Misc 116, 246 App Div 803; Matter of Smith v City Univ. of N.Y., 92 NY2d 707; Goodson Todman Enters. v Town Bd. of Milan, 151 AD2d 642, 74 NY2d 614; Matter of Daily Gazette Co. v North Colonie Bd. of Educ., 67 AD2d 803; Matter of American Socy. for Prevention of Cruelty to Animals v Board of Trustees of State Univ. of N.Y., 165 AD2d 561; Matter of Syracuse United Neighbors v City of Syracuse, 80 AD2d 984; Matter of Polishook v City Univ. of N.Y., 234 AD2d 165.) II. Because it is essentially an advisory body with no final decision-making authority on public matters, the Hostos Senate falls outside the scope of the Open Meetings Law. (Matter of Smith v City Univ. of N.Y., 92 NY2d 707; New York Pub. Interest Research Group v Governor’s Advisory Commn. [Problems Relating to Liab. Ins.], 133 Misc 2d 613, 135 AD2d 1149, 71 NY2d 964; Matter of Polishook v City Univ. of N.Y., 234 AD2d 165; Matter of Mendez v Reynolds, 248 AD2d 62; Matter of Daily Gazette Co. v North Colonie Bd. of Educ., 67 AD2d 803.) III. The authority to appoint a panel from which a committee will be chosen is not a sovereign power, particularly when, as here, the committee to be chosen is itself not subject to the Open Meetings Law. (Matter of Smith v City Univ. of N.Y., 92 NY2d 707; Matter of Mary M. v Clark, 100 AD2d 41.) IV Having no decision-making authority, the Senate and Executive Committee are not “agencies” subject to the Freedom of Information Law (FOIL). Moreover, even if they are deemed to be agencies, their records would not reflect “final policy or determinations” and would not be subject to FOIL. (Matter of Russo v Nassau County Community Coll., 81 NY2d 690; Matter of Polishook v City Univ. of N.Y., 234 AD2d 165.)
   OPINION OF THE COURT

Chief Judge Kaye.

Once again we are asked to determine whether certain entities within a public college—in this case, the Hostos Community College Senate and its Executive Committee—are subject to the Open Meetings Law. We also consider whether secret ballots by the College Senate are prohibited by either the Open Meetings Law or the Freedom of Information Law.

I.

Hostos Community College is one of 19 colleges that comprise the City University of New York (CUNY). Pursuant to Education Law § 6204 (1), control of CUNY’s educational work resides solely in its Board of Trustees. The Board can, among other things, establish departments, divisions and faculties; establish and conduct courses and curricula; and prescribe conditions of student admission, attendance and discharge (Education Law § 6206 [7] [a]). Under Education Law § 6204 (3) (a), CUNY Board meetings are subject to the Open Meetings Law.

The CUNY Board has enacted its own bylaws to facilitate its mission. Those bylaws govern all CUNY campuses and explicitly allow the individual colleges to implement their own governance plans, which supersede any inconsistent provision contained in CUNY’s bylaws (CUNY Bylaws § 8.14). In its bylaws, the Board has delegated its authority under Education Law § 6206 (7) (a) in part to the faculty (or a faculty council) of the individual colleges, making the local faculty (or faculty councils) responsible “for the formulation of policy relating to the admission and retention of students including health and scholarship standards therefor, student attendance including leaves of absence, curriculum, awarding of college credit, granting of degrees” (CUNY Bylaws §§ 8.6, 8.7).

In lieu of the faculty council authorized by the CUNY bylaws, the Hostos Community College Governance Charter established a College Senate composed of full-time faculty members, nonteaching instructional staff, students, classified staff and the President and Deans of the College. The faculty, staff and student members are elected by their respective constituencies, faculty and staff to three-year terms and students to one-year terms. The Senate is to “recommend policy on all College matters . . . [and is] specifically responsible for the formulation of academic policy and for consultative and advisory functions related to the programs, standards and goals of the College” (Hostos Community College Governance Charter, art I, § 1).

The Governance Charter sets forth a noninclusive list of 14 areas of college policy, including curriculum and admission requirements, as to which the Senate is authorized to formulate new policy recommendations and review existing policies. The Charter prohibits additions or alterations to the divisions of Hostos Community College without the College Senate first approving those changes; and it provides that changes to the Charter may be proposed only by a member of the Executive Committee or a written petition signed by 10 members of the College Senate.

The nine members of the Executive Committee and the nine members of the Committee on Committees are elected from the College Senate. The Executive Committee organizes the work of the Senate by scheduling and preparing the agenda for Senate meetings and transacts necessary business between Senate meetings. The Committee on Committees assigns all of the members to the Senate’s 13 remaining standing committees, including the Academic Standards Committee (which determines student appeals of academic dismissals or matriculation decisions), the Admissions Committee (which implements college admissions policies) and the Scholarships and Awards Committee (which selects recipients of the Hostos Scholarships and other prizes). Appointments to the standing committees and a number of the decisions issued by the committees are final and nonreviewable.

On May 24, 2001 petitioner Chong Kim, a Hunter College student, was denied entrance to a College Senate meeting during which several changes in the college curriculum were approved by secret ballot. On September 6, 2001 petitioner Aneudis Perez, a Hostos Community College student, was denied entrance to an Executive Committee meeting; Perez tried to hand an Executive Committee member a petition regarding an incident that had arisen months earlier during a political protest on campus. Neither of the two meetings had moved into executive session, though had the Senate or the Executive Committee needed to discuss confidential matters it could have done so (see Public Officers Law § 105).

Petitioners initiated a CPLR article 78 proceeding, arguing that the College Senate and the Executive Committee were subject to the Open Meetings Law and the Freedom of Information Law. Supreme Court granted the petition, but the Appellate Division reversed, concluding that the Senate was only an advisory body and thus outside the purview of the Open Meetings Law and the Freedom of Information Law. We agree with Supreme Court and now reverse the Appellate Division order and reinstate the judgment of Supreme Court.

II.

In enacting the Open Meetings Law, the Legislature sought to ensure that “public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy” (Public Officers Law § 100). Similarly, the Legislature intended the Freedom of Information Law to guarantee “[t]he people’s right to know the process of governmental decision-making and to review the documents and statistics leading to determinations” (Public Officers Law §84).

Thus, all “public bodies” are subject to the Open Meetings Law and all “public agencies” are subject to the Freedom of Information Law. Both provisions define, in part, organizations within their ambit as those that perform a “governmental function” (Public Officers Law § 86 [3]; § 102 [2]). And in applying these laws, we construe their provisions liberally in accordance with their stated purposes (see Matter of Gordon v Village of Monticello, 87 NY2d 124, 127 [1995]; Matter of Encore Coll. Bookstores v Auxiliary Serv. Corp. of State Univ. of N.Y. at Farmingdale, 87 NY2d 410, 418 [1995]).

While an entity must be authorized pursuant to state law to be within the ambit of the Open Meetings Law and the Freedom of Information Law, not every entity whose power is derived from state law is deemed to be performing a governmental function. Certainly not all advisory bodies that issue recommendations to state agencies are performing governmental functions for purposes of compliance with the Open Meetings Law. Rather, in each case the court must undertake an analysis that centers on “the authority under which the entity was created, the power distribution or sharing model under which it exists, the nature of its role, the power it possesses and under which it purports to act, and a realistic appraisal of its functional relationship to affected parties and constituencies” (Matter of Smith v City Univ. of N.Y., 92 NY2d 707, 713 [1999]).

In Smith, for example, this Court concluded that the Fiorello H. LaGuardia Community College Association, Inc.—a group of administrators, faculty members and students authorized to allocate student activity fees to various campus entities—exercised a quintessentially governmental function and was thus subject to the Open Meetings Law. The association not only drew its powers from state law but also was a “formally chartered entity with officially delegated duties and organizational attributes of a substantive nature” (id. at 714). The group’s governmental function was further evidenced by its operation “under protocols and practices where its recommendations and actions [were] executed unilaterally and finally, or receive [d] merely perfunctory review or approval” (id.).

Here, we are persuaded that the College Senate and its Executive Committee similarly are exercising a quintessentially governmental function.

The College Senate’s organizational structure is set forth in the Governance Charter, which mandates that the Senate conduct business only if a quorum is present and that the Senate and its committees conduct meetings pursuant to Robert’s Rules of Order Newly Revised. The members of the Senate elect representatives to the Committee on Committees, which has sole, nonreviewable authority to select members to the College Senate’s other standing committees, some of which exercise nonreviewable power regarding disciplinary findings and punishments, academic disputes and scholarship awards. The Executive Committee schedules regular and special Senate meetings, determines what is appropriate Senate business, sets the agenda for the Senate meetings and conducts all business between Senate sessions.

Key to our conclusion in this case is the record evidence that the College Senate (which includes its Executive Committee) has been charged with a number of the responsibilities delegated by the Legislature to the CUNY Board and that the Senate functions as a proxy for the faculty councils authorized by the CUNY bylaws. The Senate is to recommend policy on all college matters to the Board. The Senate is explicitly imbued with the power to formulate new policy recommendations and review existing policies, forwarding those recommendations to the Board of Trustees in areas as far-reaching as college admissions, degree requirements, curriculum design, budget and finance; it is represented on all committees established by the College President or Deans; it is to review proposals for and recommend the creation of new academic units and programs of study; it must be consulted prior to any additions or alterations to the College’s divisions; and it is the only body that can initiate changes to the College Governance Charter.

Under CUNY’s comprehensive university governance scheme, the College Senate is the sole legislative body on campus authorized to send proposals to the CUNY Board of Trustees, and although the policy proposals must first be approved and forwarded by the College President, they overwhelmingly are. While the CUNY Board retains the formal power to veto recommendations of the College Senate, that does not in and of itself negate the Senate’s policy-making role or render the Senate purely advisory. Realistically appraising the Senate’s function, we conclude that the Appellate Division erred in holding that the Senate was only an advisory body (contrast Matter of Snyder v Third Dept. Jud. Screening Comm., 18 AD3d 1100 [3d Dept 2005] [proceedings of Judicial Screening Committee not subject to the Freedom of Information or Open Meetings laws because its role is limited to providing information to appointing authority]). As Supreme Court held, “the college senate and the executive committee thereof constitute integral components of the governance structure of Hostos Community College. The senate and its executive committee perform functions of both advisory and determinative natures which are essential to the operation and administration of the college” (195 Misc 2d 16, 33 [Sup Ct, Bronx County 2002]).

Whether the votes of the College Senate may be by secret ballot, however, is a separate question.

The Open Meetings Law does not speak to balloting or voting procedures, requiring only that “[m]inutes shall be taken at all open meetings of a public body which shall consist of a record or summary of all motions, proposals, resolutions and any other matter formally voted upon and the vote thereon” (see Public Officers Law § 106 [1]). A final determination may easily be recorded in the meeting’s minutes without an accounting of each participant’s ballot. Though we construe the provisions of the Open Meetings Law liberally, we will not add a requirement to the text of the statute.

Under the Freedom of Information Law, however, a public agency must maintain “a record of the final vote of each member in every agency proceeding in which the member votes” (Public Officers Law § 87 [3] [a]). This requirement differs from the summary of a final vote mandated by the Open Meetings Law. The requisite record of the final vote of each member would be impossible were the final vote of each member anonymous or secret. Consequently, under the Freedom of Information Law, voting by the College Senate and the Executive Committee may not be conducted by secret ballot.

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

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

Order reversed, etc.


source: Caselaw Access Project

author: Rosenblatt, J.

license: Public Domain

text:
    [840 NE2d 569, 806 NYS2d 457]
    Varsity Transit, Inc., et al., Respondents, v Board of Education of the City of New York, Appellant.
    Argued October 20, 2005;
    decided November 17, 2005

      POINTS OF COUNSEL

      Michael A. Cardoza, Corporation Counsel, New York City {Julian L. Kalkstein and Larry A. Sonnenshein of counsel), for appellant.
    Plaintiffs failed to file notices of claim with the Board of Education of the City of New York pursuant to Education Law § 3813 (1) as a condition precedent to the commencement of their contract claims for the balance of school year 1996-1997 and for school years 1997-1998, 1998-1999 and 1999-2000 and, therefore, their application to amend their complaint to add such claims more than one year after said claims had accrued should have been denied. (Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539; Lawrence Constr. Corp. v State of New York, 293 NY 634; Babigian v Wachtler, 181 AD2d 640; Matter of Judge Rotenberg Educ. Ctr. v Maul, 91 NY2d 298; Matter of State of New York v Ford Motor Co., 74 NY2d 495; Dreger v New York State Thruway Auth., 81 NY2d 721; Barchet v New York City Tr. Auth., 20 NY2d 1; Chinatown Apts. v New York City Tr. Auth., 100 AD2d 824; Arol Dev. Corp. v City of New York, 59 AD2d 883; Salesian Socy. v Village of Ellenville, 41 NY2d 521.)

      Ruskin Moscou Faltischek, EC., Uniondale (<Joseph R. Harbeson of counsel), for respondents.
    Education Law § 3813 does not require the filing of notices of claim for plaintiffs’ postaction claims. (Matter of Deposit Cent. School Dist. v Public Empl. Relations Bd., 214 AD2d 288, 88 NY2d 866; Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539; Caselli v City of New York, 105 AD2d 251; Matter of Hurley v Avon Cent. School Dist., 187 AD2d 982; Koren-DiResta Constr. Co. v New York City School Constr. Auth., 293 AD2d 189; Davidson v Bronx Mun. Hosp., 64 NY2d 59; Matter of Brown v Board of Trustees of Town of Hamptonburg, School Dist. No. 4, 303 NY 484; Mercado v New York City Health & Hosps. Corp., 247 AD2d 55; Chinatown Apts. v New York City Tr. Auth., 100 AD2d 824; Barchet v New York City Tr. Auth., 20 NY2d 1.)
   OPINION OF THE COURT

Rosenblatt, J.

On this appeal, we resolve whether an action against a municipality can suffice as a notice of claim for damages that accrue after the start of the action. We hold that the relevant statute requires plaintiffs to file new notices of claim even though the action seeks an injunction and damages on the same legal theory as the damages that came afterwards.

Plaintiffs are bus companies that have long-term contracts with defendant New York City Department of Education to transport the Department’s students. The contracts require the Department to pay the bus companies more for certain increases in the cost of providing benefits for the bus monitors who supervise children on the buses. The cost increases are calculated according to a formula described in the contracts.

In 1995, a disagreement arose between the bus companies and the Department about how to apply the formula. The companies filed notices of claim against the Department, alleging that it had misapplied the formula and underpaid the companies for the 1995-1996 school year and for the first three months of the 1996-1997 school year. The companies then sued the Department seeking damages for breach of contract and an injunction compelling the Department to apply the formula according to the companies’ interpretation.

For the purposes of this appeal, the Department concedes that the initial notices were timely filed according to the strictures of Education Law § 3813 (1). That law declares that

“[n]o action or special proceeding, for any cause whatever, except as hereinafter provided, . . . involving the rights or interests of any district or any such school shall be prosecuted or maintained against any . . . board of education . . . unless it shall appear by and as an allegation in the complaint or necessary moving papers that a written verified claim upon which such action or special proceeding is founded was presented to the governing body of said district or school within three months after the accrual of such claim, and that the officer or body having the power to adjust or pay said claim has neglected or refused to make an adjustment or payment thereof for thirty days after such presentment. In the case of an action or special proceeding for monies due arising out of contract, accrual of such claim shall be deemed to have occurred as of the date payment for the amount claimed was denied.”

The litigation continued in Supreme Court and in July 2001 the bus companies moved for summary judgment holding that the formula applied by the Department underpaid the companies. Supreme Court agreed in part and granted the companies summary judgment for the school years described in the original notices of claim (covering the periods before the litigation began). Supreme Court did not grant the companies injunctive relief.

Along with their summary judgment motion, the bus companies moved to file a supplemental complaint updating their claims to cover the school years that had elapsed since the start of the litigation. For those years, the Department had applied the same formula that Supreme Court rejected in its partial summary judgment decision. The Department concedes that application of the formula as construed by Supreme Court to the disputed periods would be merely ministerial, a matter of arithmetic.

The companies, however, had failed to continue to file new notices of claim every three months during the litigation to cover the ongoing underpayments. For this reason, the Department argued that the companies’ complaint could not properly be supplemented to cover the period after plaintiffs filed their lawsuit. Supreme Court agreed with the Department and refused to permit the supplemental complaint. The Appellate Division modified Supreme Court’s judgment to permit the companies to supplement their complaint, holding that the original complaint (including its call for a prospective injunction) gave the Department sufficient notice. Supreme Court thereafter granted judgment awarding damages to plaintiffs, and we granted leave from the judgment of Supreme Court, pursuant to CPLR 5602 (a) (1) (ii), to bring up for review the prior nonfinal order of the Appellate Division. We now reverse.

On its face, Education Law § 3813 (1) makes no exception to the notice rule for contract disputes already in litigation. The companies argue that the request for an injunction was enough to alert the Department about the specific contractual basis for their objection to the Department’s calculations, and that the lawsuit itself served as adequate notice of future claims for damages. Especially because the difference between the adversaries’ views of the proper formula remained the same for every billing period in question (so that correcting the formula would require nothing more than an arithmetic adjustment), the companies argue that public policy is not served by compelling continuous notices of claim.

The companies’ policy-based position, while plausible, is best addressed to the Legislature. As we have long held, “statutory requirements conditioning suit [against a governmental entity] must be strictly construed” (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). This is true even where the Department “had actual knowledge of the claim or failed to demonstrate actual prejudice” (Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 548 [1983]).

We have repeatedly rejected, and now reject again, proposals to compromise the strict statutory notice of claim requirement, because to do so would lead to uncertainty and vexatious disputes. For example, here the companies argue that the Department was on notice of their future claims because the complaint included a request for injunctive relief. If we accepted this argument, questions would soon arise as to whether a similar but not identical pleading, or an identical pleading in a similar but not identical dispute, was adequate to fulfill the statutory purpose. We decline to start down that road.

To avoid results based on procedural rather than merits adjudication, future plaintiffs, after starting the lawsuit, need only continue to file the notices of claim that they have filed before the lawsuit. This allocation of responsibility is not overly burdensome on plaintiffs and avoids any possible confusion about which acts of the government the plaintiffs find unlawful.

Accordingly, the judgment appealed from and order of the Appellate Division brought up for review should be reversed, with costs, and the case remitted to Supreme Court for further proceedings in accordance with this opinion.

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

Judgment appealed from and order of the Appellate Division brought up for review reversed, etc.

      . At the start of this litigation, the Department of Education was known as the Board of Education, the original named defendant.

      . Although Dreger concerned a suit against the State, which, unlike the municipal Department, benefits from sovereign immunity, the policy supporting strict application of notice-of-claim provisions applies equally here because the statute protects the public fisc.


text:
    [841 NE2d 289, 807 NYS2d 321]
    The People of the State of New York, Respondent, v Trevor Green, Appellant.
    Argued October 17, 2005;
    decided November 21, 2005

      POINTS OF COUNSEL

      Lynn W.L. Fahey, New York City, and Mae C. Quinn for appellant.
    I. Appellant was deprived of his due process rights to a fair trial and to present a defense by the court’s refusal to: (a) charge that his good-faith belief that he was reclaiming a compact disc player that had been stolen from him minutes earlier would negate the larcenous intent required for robbery; and (b) submit petit larceny, to which the claim-of-right defense unquestionably applied, to the jury as a lesser included offense of robbery. (People v Reid, 69 NY2d 469; Mathews v United States, 485 US 58; Chambers v Mississippi, 410 US 284; People v Wilson, 93 NY2d 222; People v Zinke, 76 NY2d 8; People v Miller, 87 NY2d 211; People v Smith, 79 NY2d 309; People v Alfaro, 260 AD2d 495; People v Hubbert, 212 AD2d 633; People v Chesler, 50 NY2d 203.) II. Appellant was denied his due process right to a fair trial when the court failed to respond meaningfully to jury questions by (a) refusing to provide a complete recharge on robbery that included the definitions of key terms at issue in the case; and (b) over defense objection, defining “aid” only in layman’s terms and telling the jurors that it had “no special legal meaning.” (People v Lourido, 70 NY2d 428; People v Almodovar, 62 NY2d 126; People v Malloy, 55 NY2d 296, 459 US 847; United States v Velez, 652 F2d 258; People v Steinberg, 79 NY2d 673; People v Cruz, 272 AD2d 922, 96 NY2d 857; People v Craig, 293 AD2d 351; People v Redd, 266 AD2d 12; People v Miller, 288 AD2d 698; People v Williams, 225 AD2d 447.)

      Richard A. Brown, District Attorney, Kew Gardens (Anastasia Spanakos-Orfan and John M. Castellano of counsel), for respondent.
    I. The trial court properly declined to instruct the jury on the statutory good-faith claim-of-right defense and properly declined to submit the lesser included offense of petit larceny.
      (People v Reid, 69 NY2d 469; People v Smith, 79 NY2d 309; People v Olah, 300 NY 96; Levy v Levy, 33 NY 97; Mount v Mitchell, 31 NY 356, 32 NY 702; People v Hernandez, 82 NY2d 309; People ex rel. McCann v Kilbourn, 68 NY 479; People v Shannon, 89 NY2d 1000; People v Scunziano, 140 AD2d 645; People v Valente, 129 AD2d 824.) II. The court’s responses to the jury’s requests for further instructions were proper. (Johnson v Zerbst, 304 US 458; People v Richardson, 88 NY2d 1049; People v Ahmed, 66 NY2d 307; People v LaValle, 3 NY3d 88; People v Gruttola, 43 NY2d 116; People v Cohen, 5 NY2d 282; People v Gray, 86 NY2d 10; People v Padro, 75 NY2d 820; People v Laraby, 92 NY2d 932; People v Steinberg, 79 NY2d 673.)
   OPINION OF THE COURT

Chief Judge Kaye.

In a prosecution for robbery of a specific chattel, is a defendant who in good faith believed that the property was his entitled to a “claim-of-right” jury instruction? Both because the Legislature has limited the availability of the statutory claim-of-right defense to prosecutions for larceny by trespass or embezzlement (see Penal Law § 155.15 [1]), and because public policy considerations militate against encouraging the use of forcible self-help to recover property, we conclude that he is not.

Facts

On December 7, 2001, defendant and two acquaintances approached Christian Pabon as he was walking with his friends in Queens, New York. Defendant held out his hand and Pabon, believing that the stranger was attempting to greet him, returned the gesture by slapping him “five.” Defendant told Pabon, however, that he did not want a greeting; he made clear that he wanted Pabon’s compact disc player. Defendant snatched the player out of Pabon’s hand, walked away and allegedly began listening to the “Busta Rhymes” CD in the disc player.

Pabon followed defendant, repeatedly asking for his disc player back, at which time one of defendant’s acquaintances, co-defendant Quentin Jones, approached Pabon and told him to “run [his] pockets”—meaning, to give Jones his money. Pabon told Jones he did not have any money and then turned to continue following defendant, whereupon Jones repeatedly punched Pabon from behind, causing a laceration on Pabon’s ear.

Shortly thereafter, Pabon alerted a passing police car and identified defendant and his acquaintances as having taken his disc player and punched him. The police arrested defendant at the scene and recovered the disc player. Defendant and Jones were charged with two counts of robbery in the second degree— aided by another person actually present, and causing physical injury—as well as criminal possession of stolen property in the fifth degree.

At trial, defendant testified that, shortly before taking the disc player from Pabon, he had borrowed a friend’s portable Aiwa compact disc player, containing a “Busta Rhymes” CD, which was stolen from him by a group of six or seven members of the Latin Kings gang. Defendant recognized the individuals as Latin Kings because of their customary gang attire—yellow bandanas and yellow and black beads. Defendant also noticed that one of the assailants wore wire-rimmed glasses.

According to defendant, he first approached Pabon because Pabon was holding a disc player and resembled one of the individuals who had taken the disc player from him. Although Pabon was not wearing clothing associated with the Latin Kings, he was wearing wire-rimmed glasses and was holding an Aiwa disc player. Defendant further testified, however, that, after seeing Pabon on the stand, he did not in fact recognize him as one of the individuals who had stolen his disc player, but at the time of the incident he was fairly certain that Pabon was one of them and believed that the disc player was the one that had been taken from him.

The court instructed the jury on the prosecution’s burden to prove beyond a reasonable doubt each element of robbery, including that the defendant possessed the requisite intent to commit the crime. Prior to that instruction, however, defendant had requested that the court additionally charge the jury on the claim-of-right defense codified in Penal Law § 155.15 (1). The court denied that request, based on its interpretation of People v Reid (69 NY2d 469 [1987]). The jury convicted defendant of both second-degree robbery counts as well as the possession charge. The Appellate Division affirmed, holding that “[c]ontrary to the defendant’s contention, the trial court properly refused to charge the jury on the ‘claim of right’ defense since such a defense is only available in a larceny prosecution, not in a robbery prosecution” (People v Green, 11 AD3d 559, 559 [2004]). We now affirm.

Discussion

Penal Law § 155.15 (1) provides that “[i]n any prosecution for larceny committed by trespassory taking or embezzlement, it is an affirmative defense that the property was appropriated under a claim of right made in good faith.” In People v Chester (50 NY2d 203, 209-210 [1980]), however, we held that section 155.15 was unconstitutional insofar as it made a good-faith claim of right an affirmative defense because to do so impermissibly shifted the burden onto the defendant to disprove the element of intent.

Our holding recognized that a good-faith claim of right negates larcenous intent—otherwise, a claim of right would not impermissibly shift the burden of proving an essential element of the crime and could remain an affirmative defense. Indeed, as we explained in People v Zinke (76 NY2d 8, 10 [1990]),

“DJarceny is committed when one wrongfully takes, obtains or withholds ‘property from an owner thereof with intent to deprive the owner of it, or appropriate it to oneself or another. ‘Owner’ is defined in Penal Law § 155.00 (5) as one ‘who has a right to possession [of the property taken] superior to that of the taker, obtainer or withholder’ ” (citation omitted).

The current larceny statute provides simply that “[a] person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof” (Penal Law § 155.05 [1]). The statute, however, cannot properly be read to require merely the intent to take property, rather than the intent to take property from a person with a superior right to possession.

Indeed, it is clear that when the Legislature amended the statute and eliminated the reference to the intent to take property from its owner, it meant no substantive change to larceny’s intent element but only simplified the definition of larceny and eliminated the distinction among different types of theft (see Denzer and McQuillan, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law § 155.05, at 417 [1967 ed]; L 1942, ch 732, § l). Moreover, when there is a single mens rea requirement in a criminal statute, it is presumed to apply to every element of the offense. Thus, to commit larceny, a larcenous actor must act with the “intent” to take property “from an owner thereof’ (Penal Law § 155.05 [1]; see also Penal Law § 15.15).

Defendant argues that because robbery is a larceny using force the Legislature intended the good-faith claim-of-right defense to apply to certain types of robbery. As we noted in People v Reid (69 NY2d 469, 475 [1987]), a tenable argument could be made that “one who acts under a claim of right lacks the intent to steal and should not be convicted of robbery” when such person seeks to retake his or her own specific chattel. In Reid, however, we chose not to resolve this issue, focusing instead on “whether a good-faith claim of right, which negates larcenous intent in certain thefts, also negates the intent to commit robbery by a defendant who uses force to recover cash allegedly owed him” (id. at 472 [citation omitted]).

We concluded in Reid that a claim-of-right defense was not available, reasoning that the defense was codified in the larceny article, but not in the robbery article. Moreover, the statute limits the availability of the defense only to larceny by trespass or embezzlement. Noting the significance of the Legislature’s failure to authorize a general claim-of-right defense for extortion, which “entails the threat of actual or potential force or some form of coercion” (69 NY2d at 476), we inferred that the Legislature recognized that an accused should not be permitted to invoke the defense in crimes involving force. Indeed, we assumed “that if the Legislature intended to excuse forcible taking, it would have said so” (id.). We also explained that, on policy grounds, we were unwilling to expand the area of permissible self-help, finding a meaningful difference between larceny, in which the use of force is a nonissue, and robbery, in which the defendant obtains money allegedly owed to him by threatening or using force.

Reid is distinguishable from the present case. There, the defendant simply could not have had a true claim of right to the fungible cash—the bills themselves—he took to satisfy an alleged debt. When the robbery is of a particular chattel, however, there can be a genuine belief in ownership of the specific property taken. Thus, a good-faith claim that the chattel belonged to the taker, would, if believed by the jury, negate the element of larcenous intent.

Indeed, because the prosecution must prove beyond a reasonable doubt that the defendant intended to take property from someone with a superior right to possession, a good-faith but mistaken claim of right might defeat a robbery prosecution (see Model Penal Code and Commentaries § 223.1, Comment 4 [1980] [explaining that, to be guilty of a theft offense, “the actor must know that the property belongs to another.” Accordingly, “(t)he claim-of-right defense . . . can thus be regarded as redundant with respect to these offenses since a proper analysis of their elements requires knowledge of the proprietary interest of the other party and hence would recognize an honest, though unreasonable, mistake as a defense.”]). And, as here, a defendant is, of course, free to make that argument to the jury.

However, simply because a jury might be convinced by a claim-of-right argument, it does not follow that a claim-of-right charge, derived from a statutory defense limited to certain types of larceny, is also available to defendants in robbery prosecutions. Such an instruction by the court, over and above an instruction on the element of intent, unquestionably aids the defendant by underscoring one aspect of the proof, or lack of proof. The Legislature did not provide that additional assistance where the defendant employs physical force.

Section 155.15 (1), by its terms, applies only to prosecutions for certain types of larceny. Indeed, the statutory claim-of-right defense in New York has been associated with larceny prosecutions since, at the latest, 1882, when the Penal Code provided that “[u]pon an indictment for larceny it is a sufficient defense that the property was appropriated openly and avowedly, under a claim of title preferred in good faith, even though such claim is untenable” (Penal Code of 1882 § 548).

Moreover, a claim-of-right charge in the robbery context encourages forcible self-help in pursuing property. When the Legislature wished to authorize self-help, it has done so explicitly, as in the justification defense (see Penal Law § 35.15). Thus, a specific jury instruction on the claim-of-right defense is not available for robbery, regardless of the nature of the property taken.

Addressing defendant’s remaining contentions, “[w]here a court charges the next lesser included offense of the crime alleged in the indictment, but refuses to charge lesser degrees than that. . . the defendant’s conviction of the crime alleged in the indictment forecloses a challenge to the court’s refusal to charge the remote lesser included offenses” (People v Boettcher, 69 NY2d 174, 180 [1987]). Here, the jury convicted the defendant of second-degree robbery, even though the lesser included third-degree robbery charge was also available. Hence, defendant is foreclosed from challenging the court’s refusal to charge the more remote lesser included offense of petit larceny, if indeed such a charge was available on the facts. Finally, we agree with the Appellate Division that defendant’s contentions regarding the court’s responses to jury notes are without merit.

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

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

Order affirmed.

      . Jones pleaded guilty and defendant proceeded to trial alone.

      . Even beyond our State’s earliest codifications of larceny—which made clear that the mental culpability required was the intent to take property from its true owner (see Penal Code of 1888 § 528; Penal Law of 1909 § 1290)— at common law the mens rea element of theft included the intent to take property from another with a superior right to possession (see 3 Stephen, History of the Criminal Law of England, ch XXVIII, at 132 [1883] [“the definition of the offence (theft) includes an intention to deprive the owner of his property permanently”]).

      . Even at early common law, a good-faith claim of right to the property taken could negate the element of intent to commit robbery (see 2 Wharton, Criminal Law of the United States § 1697, at 115 [5th ed 1861]). Wharton explained that “[i]f one, under a bona fide impression that the property is his own, obtain it by menaces, that is a trespass, but no robbery (id.).

      . • The New York Legislature’s limitation of the claim-of-right defense to certain types of larceny distinguishes our decision from cases such as People v Tufunga (21 Cal 4th 935, 987 P2d 168 [1999]). More analogous is State v McMillen (83 Haw 264, 925 P2d 1088 [1996]), where the Hawaii Supreme Court concluded that Hawaii’s claim-of-right statute was not applicable to robbery.


author: Rosenblatt, J. R.S. Smith, J.

text:
    [840 NE2d 1014, 807 NYS2d 1]
    The People of the State of New York, Respondent, v Craig Lewis, Appellant.
    Argued October 18, 2005;
    decided November 21, 2005

      POINTS OF COUNSEL

      Center for Appellate Litigation, New York City (Carl S. Kaplan and Robert S. Dean of counsel), for appellant.
    I. The trial court’s charge, as a whole, could have misled the jurors into thinking that when defendant unlawfully enters an apartment in violation of orders of protection, the same act satisfies the intent-to-commit-a-crime-therein element of burglary, thus rendering the charge reversible error. (People v Gaines, 74 NY2d 358; People v Blacknall, 63 NY2d 912; People v Clemins, 158 AD2d 854; People v Polanco, 279 AD2d 307; People v Cahill, 2 NY3d 14; People v Martinez, 83 NY2d 26, 511 US 1137; Yates v United States, 354 US 298; Burks v United States, 437 US 1; Stromberg v California, 283 US 359; People v Graves, 76 NY2d 16.) II. The evidence was legally insufficient to prove that appellant intended to commit a crime within the apartment, and there is a reasonable doubt as a matter of law as to that element, where there was no evidence of an intent to commit a “further, and more serious []” violation of the court orders, and appellant merely went to bed after entering the apartment. (People v Polanco, 279 AD2d 307; Jackson v Virginia, 443 US 307; Fiore v White, 531 US 225; People v Gaines, 74 NY2d 358; People v Jones, 184 AD2d 383; People v Konikov, 160 AD2d 146;
      People v Barnes, 50 NY2d 375; People v Castillo, 47 NY2d 270; People v Gilligan, 42 NY2d 969; People v Lambert, 232 AD2d 225.)

      Robert M. Morgenthau, District Attorney, New York City (David M. Cohn and Mary C. Farrington of counsel), for respondent.
    I. The evidence at trial overwhelmingly proved defendant’s guilt of burglary. (People v Schulz, 4 NY3d 521; People v Norman, 85 NY2d 609; Jackson v Virginia, 443 US 307; People v Santi, 3 NY3d 234; People v Williams, 84 NY2d 925; People v Mahboubian, 74 NY2d 174; People v Mackey, 49 NY2d 274; People v Gilligan, 42 NY2d 969; People v Barnes, 50 NY2d 375; People v Folsom, 252 AD2d 834.) II. The trial court’s burglary charge was proper. (People v Clemins, 158 AD2d 854; People v Samuels, 99 NY2d 20; People v Hills, 95 NY2d 947; People v Coleman, 70 NY2d 817; People v Ladd, 89 NY2d 893; People v Radcliffe, 232 NY 249; People v Polanco, 279 AD2d 307; People v Tillman, 273 AD2d 913; People v Folsom, 252 AD2d 834.)
   OPINION OF THE COURT

Rosenblatt, J.

A key element of burglary, which elevates it from trespass, is the defendant’s intent to commit a crime inside a building. A defendant who knowingly enters or remains unlawfully in a dwelling is guilty of second-degree trespass, a class A misdemeanor (Penal Law § 140.15). That crime is elevated to second-degree burglary when the defendant intends to commit a crime inside the dwelling (Penal Law § 140.25 [2]).

This appeal implicates whether the violation of an order of protection may serve as the intended crime underlying a burglary. We hold that the “intent to commit a crime therein” element of burglary (Penal Law § 140.25) may be satisfied by a defendant’s intent to engage in conduct prohibited by an order of protection while in the banned premises. That element, however, is not satisfied solely by a defendant’s intent to violate an order of protection by entering the dwelling that the order of protection declares off limits.

We further conclude that the prosecution presented legally sufficient evidence that defendant, at the time he entered, intended to engage in conduct prohibited by orders of protection in the victim’s dwelling after entry.

I.

Defendant was arrested three times in 2001 following incidents at complainant’s apartment. In January 2001, he was arrested for damaging her property. Nevertheless, she allowed defendant to move into her apartment, in February 2001, after he lost his job. In April 2001, the Criminal Court of the City of New York issued an order of protection requiring him to stay away from her and from her home until April 25, 2004. However, complainant once more allowed defendant to return to the apartment.

In the early hours of July 24, 2001, defendant and complainant got into an argument at her apartment and defendant struck her over the head with a plate. She was taken to the hospital and received six stitches. Defendant was again arrested. On July 30, 2001, Criminal Court issued another order of protection. Again, she allowed defendant back into her apartment a few days after he got out of jail.

On August 17 or 18, 2001, complainant told defendant to leave her residence, took her apartment keys from him and went to stay with a friend. On August 19, 2001, while both orders of protection were in effect, defendant entered her apartment without her knowledge. The jury heard evidence that the fire escape ladder leading to the apartment was pulled down to street level and that one of her apartment windows showed signs of tampering.

In the early hours of August 20, 2001, complainant returned to her apartment and found defendant there. She told him to get out and, when he refused and began swearing at her, she went downstairs to call the police from a pay phone. Defendant kicked her and continued to swear at her as she went down the steps. Later, the police found her pocketbook and some of her papers scattered on the ground below her apartment windows. Police arrested defendant a third time. With respect to the last incident, defendant was charged with burglary in the second degree (Penal Law § 140.25 [2]) and criminal contempt in the second degree (Penal Law § 215.50 [3]).

During trial, defense counsel asked the trial judge to instruct the jury that the “intent to commit a crime therein” element of burglary could be satisfied only if it were proven that, at the time of entry, defendant intended to commit some crime in addition to unlawful entry. The trial court refused the request, and instead gave a standard jury instruction on second-degree burglary, largely based on CJI2d (NY) Penal Law § 140.25 (2) (revised Oct. 25, 2001). The court instructed the jury that there are three elements of second-degree burglary (Penal Law § 140.25 [2]): first that defendant entered a dwelling, second that he knew the entry to be unlawful and, third, and here most critically, that he intended “to commit a crime therein” (emphasis supplied).

With only the burglary count undecided, the jury returned a partial verdict acquitting defendant of assault (relative to the July 24, 2001 event) but finding him guilty of criminal contempt in the first degree (Penal Law "§ 215.51 [b] [v]) for the July 24, 2001 event and criminal contempt in the second degree (Penal Law § 215.50 [3]) for the August 20, 2001 episode. As it was about to adjourn for the day, the jury delivered a note asking about the relevance of defendant’s criminal contempt to the “intent to commit a crime therein” element of burglary.

The prosecutor suggested instructing the jury that criminal contempt can be the basis for the “intent to commit a crime therein” element of burglary. Defendant’s attorney acquiesced by telling the trial court that he did not “have to[o] much problem” with the prosecutor’s proposal. Defense counsel then asked for the following formulation: “you should say, if it is your general question as to whether . . . the crime constituting] contempt can be the basis for a burglary charge, the answer is yes.” The trial court followed defense counsel’s proposal almost to the word. The jury then quickly reached a verdict finding defendant guilty of second-degree burglary (Penal Law § 140.25 [2]).

The Appellate Division affirmed and a Justice of that Court granted defendant leave to appeal. We affirm.

II.

Defendant claims that the burglary conviction is flawed because the court had improperly refused to instruct the jury that intent to enter the banned premises cannot alone satisfy the “intent to commit a crime therein” element of burglary. On this record, defendant’s claim fails. Appropriately, the court charged the jury as to the three elements of burglary, the third being the intent to commit a crime therein. Indeed, the court used the word “therein” five times in its initial instruction regarding burglary. By tracking the statute and the CJI language, the court conveyed to the jury that it could not find defendant guilty unless it concluded that he intended to commit a crime inside the apartment, after having entered it.

When the jury later presented its note seeking supplemental instruction, defense counsel expressly asked the court to tell the jury that a violation of an order of protection can “be the basis for a burglary charge.” Defendant therefore forfeited appellate review of the issue of whether the trial court’s charge, as a whole, could have misled the jury into thinking that intent to enter an apartment in violation of an order of protection could alone satisfy the “intent to commit a crime therein” element of burglary.

While it is true that an attorney need not repeatedly protest a court’s clear ruling, defense counsel’s formulation of the supplementary instruction went far beyond mere failure to protest and constitutes a forfeiture. Indeed, the court fully adopted the defendant’s language. He cannot now be heard to complain that the court failed to explain to the jury that the “intent to commit a crime therein” element of burglary cannot be satisfied solely by proof that defendant intended to enter the apartment in violation of orders of protection.

III.

Unlawful entry cannot itself be used as the sole predicate crime in the “intent to commit a crime therein” element of burglary. If it could, every violation of a do-not-enter provision of an order of protection would become a burglary the instant defendant knowingly entered upon the banned premises. Here, however, evidence presented to the jury was legally sufficient to prove that when defendant entered the apartment, he intended to commit a crime in the apartment other than his trespass.

The jury heard evidence that defendant was arrested in January 2001 for damaging complainant’s property and pleaded guilty to the charge; that, less than a month before the August 20, 2001 incident, defendant got into an argument with the victim in her apartment and struck her over the head with a plate, causing her serious injury; that, at the time of the August 20, 2001 incident, the fire escape ladder leading to the victim’s apartment had been pulled down to street level, and one of her apartment windows showed signs of tampering; that, at the time of the August 20, 2001 incident, complainant’s pocketbook and some of her papers were strewn on the ground below her apartment windows; that, in the early hours of that day, defendant swore at the victim when she told him to leave her apartment and kicked her as she went downstairs to call the police; and that, as he was being arrested, defendant told her “You are through” or “You’re going to pay for this.”

This evidence enabled the jury to infer that defendant intended to commit a crime inside the apartment, by violating the orders of protection in a manner that went beyond trespass. The People were required to allege and prove only defendant’s general intent to commit a crime in the apartment (in addition to unlawful entry itself), not his intent to commit a specific crime (see People v Mackey, 49 NY2d 274, 278-281 [1980]). “In order to secure a conviction for burglary, the People need only allege and prove a knowing and unlawful entry coupled with an intent to commit a crime therein. There is no requirement that the People allege or establish what particular crime was intended” (People v Mahboubian, 74 NY2d 174, 193 [1989]).

There was evidence enabling the jury to conclude that, when he entered the apartment, defendant intended to harass, menace, intimidate, threaten or interfere with complainant in her apartment, in express violation of the terms of the orders of protection (other than those barring entry). Those acts are distinct from the trespass element of burglary and, when prohibited by an order of protection or when independently criminal, can serve as predicate crimes for the “intent to commit a crime therein” element of burglary.

IV

In sum, defendant forfeited his objection to the trial court’s jury charge and fails to demonstrate that the evidence presented against him was legally insufficient to prove that he unlawfully entered the victim’s apartment intending “to commit a crime therein.”

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

R.S. Smith, J.

(dissenting). I agree with the majority that the evidence was sufficient to support defendant’s burglary conviction. I also agree that defendant’s violation of an order of protection by entry into the complainant’s home cannot be a basis for finding the “intent to commit a crime” element of burglary in this case. I think the latter holding requires us to reverse defendant’s conviction.

Defendant asked for a correct instruction to the effect that the People must show more than unlawful entry. The trial court refused the instruction, and later, in response to a question, told the jury the exact opposite. I do not believe defendant forfeited appellate review of this error, and I therefore dissent.

I

Before I describe my disagreement with the majority, I think my agreement on the sufficiency of the evidence needs a word of explanation. As I understand the Court’s holding on this issue, it does not imply that the “intent to commit a crime” element of burglary could be satisfied by conduct (beyond entry to the premises) that would be innocuous if the order of protection did not prohibit it.

In the case before us, as the majority correctly says, the jury could have found that defendant entered the apartment intending “to harass, menace, intimidate, threaten or interfere with complainant” (majority op at 552). The majority is also correct, I believe, in holding that that intention would be an “intent to commit a crime” and thus would support a burglary conviction. It is true, as the majority says, that each of these acts was prohibited by the order of protection, so that in performing any of them defendant would have committed criminal contempt. But it is probably also true (depending on how broadly “interfere with” is read) that each of these acts would be criminal even if the order of protection did not exist.

It is easy to imagine a different, more troubling, case. The order of protection here required defendant, among other things, not to “contact” complainant. It might be argued that if he entered the apartment with the intention of speaking to her, he entered unlawfully with the intent to commit criminal contempt by an act that went beyond entry. Whether that intention could support a burglary conviction is an issue not now before us, and I do not think the majority addresses it.

II

Defendant asked the trial court to instruct the jury “that the intent-to-commit-a-crime-therein element of the burglary statute cannot be satisfied merely by showing the defendant’s intent to violate the court orders by going to, or entering, the complainant’s apartment.” The People now concede, and this Court unanimously agrees, that that proposed charge would have stated the law correctly. The trial court, however, rejected the proposed charge with the observation: “I disagree. . . . [Y]ou just don’t have to do anything more .... [Bjeing there in violation of the Order of Protection ... is a burglary should the jury decide the facts support it.” The court’s view of the law was plainly incorrect.

Though its reasoning was unsound, the trial court may not have erred in refusing to give defendant’s proposed charge, and instead simply describing the elements of second-degree burglary. A charge is not necessarily incorrect merely because it follows the statutory language and does not elucidate it “to the fullest possible extent” (People v Samuels, 99 NY2d 20, 25 [2002]). Thus it might be concluded, as the Appellate Division majority did conclude, that “the court delivered a correct main charge, even if it did so inadvertently” (13 AD3d 208, 213 [2004]).

This issue became academic when the jury later asked the very question defendant’s proposed charge had been designed to anticipate. As the prosecutor summarized the jury’s question, the jury wanted to know whether “the unlawful entry . . . can be the basis of intending to commit the crime therein.” Referring to the court’s earlier statements on the subject, the prosecutor said: “I thought we had a lot of discussion in the charge conference, the answer was yes.”

The prosecutor was right in saying that the trial court had already rejected defendant’s argument on this issue. No doubt for that reason, defendant did not reargue the point when discussing the jury’s note. Implicitly accepting the prosecutor’s statement that the court had already ruled, defendant’s counsel assumed that the court would give an affirmative answer to the jury’s question, and suggested a way of wording it, which the court accepted. In doing this, the majority now holds, defendant forfeited his right to complain of the court’s error.

I cannot agree. A waiver or forfeiture may occur when a defendant requests or endorses a ruling of which he later complains (see People v White, 53 NY2d 721, 723-724 [1981]). The reason for this rule is that a defendant should not be able to obtain a reversal based on an error for which he was responsible (see People v Shaffer, 66 NY2d 663, 665 [1985]; People v Ford, 62 NY2d 275, 283 [1984]; People v Aezah, 191 AD2d 312, 313 [1st Dept 1993]). But defendant did not lead the trial court into error here—the court had already stated unequivocally its mistaken understanding of the law, and the defendant’s attempt to talk the court out of it had already failed. Thus the governing rule here is the one the majority states, but does not apply: “an attorney need not repeatedly protest a court’s clear ruling” (majority op at 551) (see also People v Mezon, 80 NY2d 155, 160-161 [1992]).

Of course it would have been a good idea for defendant’s counsel, in his comment on how to respond to the jury note, to err on the side of caution by restating the position he had already argued. He might have said, for example: “As you know, your Honor, I think the correct answer to the question is no. But since you have already decided the correct answer is yes, I suggest that you answer in the following language.” But if he had taken this more prudent course, defense counsel would only have been reciting what everyone in the courtroom knew and the record made clear already. I cannot join the majority in holding that he forfeited his client’s right by failing to perform this ritual.

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

Order affirmed.

      . The intent to commit a crime in the dwelling must be contemporaneous with the entry (People v Gaines, 74 NY2d 358, 362-363 [1989]).

      . Such conduct is punishable, however, as criminal contempt under article 215 of the Penal Law and criminal trespass under article 140 of the Penal Law.

      . In addition to the stay-away provisions, the order of protection required defendant to “[r]efrain from any contact including mail, telephone, e-mail, voice-mail or other electronic communication with” the complainant and to “[r]efrain from assault, stalking, harassment, menacing, reckless endangerment, disorderly conduct, intimidation, threats or otherwise interfering with” her.

      . This order of protection contained the identical provisions as the extant order (see n 3).

      . The indictment and trial also covered the July 24, 2001 incident, for which defendant was charged with assault in the second degree (Penal Law § 120.05 [2]) and criminal contempt in the first degree (Penal Law § 215.51 [b] [v]). This appeal does not involve those crimes. We address only the burglary conviction arising out of the events of August 20, 2001.

      . First-degree criminal contempt is more serious because it contemplates physical contact or attempted or threatened physical contact.

      . If the People had expressly limited their theory of the “intent to commit a crime therein” element to a particular crime, then they would have had to prove that the defendant intended to commit that crime (People v Barnes, 50 NY2d 375, 379 n 3 [1980]). They did not.


text:
    [840 NE2d 1020, 807 NYS2d 7]
    The People of the State of New York, Respondent, v James Robbins, Appellant.
    Argued October 20, 2005;
    decided November 22, 2005

      POINTS OF COUNSEL

      Sheila Fernandez, New York City, Laura R. Johnson and Martin M. Lucente for appellant.
    The evidence of sale in or near school grounds was legally insufficient, where the court allowed the People to prove the requisite proximity by use of the Pythagorean theorem, instead of the “pedestrian” method that is based on the actual distance travelled in going from one point to the other. (People v Gaines, 167 Misc 2d 923; United States v Henderson, 320 F3d 92; United States v Clavis, 956 F2d 1079; United States v Ofarril, 779 F2d 791; People v Zelaya, 232 AD2d 261; People v Andujas, 79 NY2d 113; People v Kitching, 78 NY2d 532; People v Doshi, 93 NY2d 499; People v Baghai-Kermani, 84 NY2d 525; People v Cohen, 50 NY2d 908.)

      Robert M. Morgenthau, District Attorney, New York City {Deborah L. Morse and Gina Mignola of counsel), for respondent.
    The evidence plainly established that the drug sale occurred within 1,000 feet of a school. (Jackson v Virginia, 443 US 307; People v Norman, 85 NY2d 609; People v Malizia, 62 NY2d 755; People v Kennedy, 47 NY2d 196; People v Robinson, 95 NY2d 179; People v Ryan, 82 NY2d 497; People v Duggins, 3 NY3d 522; People v Versaggi, 83 NY2d 123; People v Perez, 277 AD2d 1; People v Gaines, 167 Misc 2d 923.)
   OPINION OF THE COURT

Chief Judge Kaye.

It is a class B felony to sell drugs within 1,000 feet of a school. Because we agree with the courts below that this distance is to be measured in a straight line between the nearest school and the point of sale, we uphold defendant’s conviction.

Penal Law § 220.44 (2) proscribes the third-degree criminal sale of a controlled substance “when such sale takes place upon school grounds.” School grounds, in turn, means not only “in or on or within” school buildings or school property, but also “any area accessible to the public located within one thousand feet of the real property boundary line” of a school, as well as any vehide parked within 1,000 feet of such line (Penal Law § 220.00 [14]).

Defendant was charged with selling drugs to an undercover police officer at the northeast corner of 40th Street and Eighth Avenue in Manhattan. At trial, the People offered proof that the nearest school was the Holy Cross grade school, located on 43rd Street between Eighth and Ninth Avenues. It is undisputed that the sale took place within 1,000 feet of the school when measured in a straight line between the sale and the school’s boundary line, but that existing buildings made it impossible to walk in a straight line between those two points. It is further undisputed that the shortest actual distance that a pedestrian would have to travel in order to walk from the scene of the crime to the school using city streets and publicly accessible locations exceeded 1,000 feet.

Defendant contends that the statute mandates that the requisite distance be calculated by the “pedestrian method,” and that the evidence was therefore legally insufficient to support his conviction. We are unpersuaded, and hold that the proper method of measurement under the statute is the “straight-line method.”

The school-grounds law was enacted in order to create a drug-free buffer zone of protection—“a corridor of safety for children coming to and from school” (Mem of State Exec Dept, 1986 McKinney’s Session Laws of NY, at 2892). By defining school grounds to encompass both the school property itself and the entire area “within” 1,000 feet of the property boundary line, the Legislature effectively extended the boundaries of school grounds outward in order to encompass all public areas within a 1,000-foot radius of the school.

Indeed, the 1,000-foot measurement was chosen because of the high number of narcotics-related arrests that had occurred within a two-block “radius” of elementary school grounds (id,.; see also Governor’s Mem approving L 1986, ch 280, 1986 McKinney’s Session Laws of NY, at 3161 [because many, if not most, sales of drugs to children occur near but not inside school buildings, the bill defines school grounds to include “the area” within 1,000 feet of the real property boundary line, providing a “zone of safety” for school children]). Thus, the intent of the statute was to circumscribe a fixed geographical area, without regard to whether that area might contain obstacles around which people might have to detour.

Other jurisdictions with similar statutes have construed their laws to require a straight-line measurement (see e.g. Commonwealth v Spano, 414 Mass 178, 181, 605 NE2d 1241, 1244 [1993]; State v Georgetown, 1995 WL 866838, 1995 La App LEXIS 3878 [La Ct App, Dec. 15, 1995]; State v Wimbs, 74 Wash App 511, 515, 874 P2d 193, 195 [Ct App 1994]; State v Vigh, 871 P2d 1030, 1035 [Utah Ct App 1994]; Howard v State, 591 So 2d 1067, 1068 [Fla Dist Ct App 1991]; State v Ogar, 229 NJ Super 459, 465, 551 A2d 1037, 1040-1041 [App Div 1989]; see also Taylor Drug Stores, Inc. v Indiana Alcoholic Beverage Commn., 497 NE2d 932, 936 [Ct App 1986] [proximity between a church and a premises seeking a permit to distribute alcoholic beverages should be measured along the shortest straight line connecting the church and the proposed premises, regardless of intervening obstacles]).

Similarly, the federal schoolyard law—which prohibits “distributing, possessing with intent to distribute, or manufacturing a controlled substance in or on, or within one thousand feet of, the real property comprising” a school (21 USC § 860)— has been universally interpreted to contemplate the straight-line method of measurement (see e.g. United States v Henderson, 320 F3d 92, 103 [1st Cir 2003], cert denied 539 US 936 [2003]; United States v Johnson, 46 F3d 1166, 1169-1170 [DC Cir 1995]; United States v Clavis, 956 F2d 1079, 1088 [11th Cir 1992], cert denied sub nom. Edwards v United States, 504 US 990 [1992]; United States v Watson, 887 F2d 980, 980-981 [9th Cir 1989]; United States v Ofarril, 779 F2d 791, 792 [2d Cir 1985], cert denied 475 US 1029 [1986]; see also Mem of State Exec Dept. 1986 McKinney’s Session Laws of NY, at 2892 [characterizing the federal schoolyard law as “similar legislation” to the proposed New York statute]).

Defendant’s contrary reading would introduce uncertainty and open the statute to a charge of vagueness. Plainly, guilt under the statute cannot depend on whether a particular building in a person’s path to a school happens to be open to the public or locked at the time of a drug sale. At a minimum, “[Requiring speculation about pedestrian routes would create uncertainty in a statute which was meant to establish clear lines of demarcation” (Watson, 887 F2d at 980-981).

Further, if the pedestrian method of measurement were used, a drug dealer could take deliberate steps to evade the reach of the statute by putting up obstructions to render the footpath to a nearby school beyond the 1,000-foot limit (see Clavis, 956 F2d at 1088). But the intent of the legislation would be defeated “if dealers were allowed to escape prosecution by creating circuitous routes to their narcotic transactions” (Watson, 887 F2d at 981). Thus, as the courts below properly held, the statutory distance is to be measured “as the crow flies.”

Defendant’s remaining contention is without merit.

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

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

Order affirmed.

      . An “area accessible to the public” means “sidewalks, streets, parking lots, parks, playgrounds, stores and restaurants” (id.).

        . One thousand feet is “the equivalent of two city blocks” (id.).


author: G.B. Smith, J.

text:
    [841 NE2d 742, 807 NYS2d 583]
    Neil A. Goldman, on Behalf of Himself and All Others Similarly Situated, Appellant, v Metropolitan Life Insurance Company, Respondent. Allen S. Franco et al., Appellants, v The Guardian Life Insurance Company of America, Respondent. Michael Katz, Appellant, v American Mayflower Life Insurance Company of New York, Respondent.
    Argued October 17, 2005;
    decided November 21, 2005

      POINTS OF COUNSEL

      Goodkind Labaton Rudoff & Sucharow LLP, New York City (Ira A. Schochet, Joel H. Bernstein and Stacey Fishbein of counsel), Goldman Scarlato & Karon, PC., Conshohocken, Pennsylvania (Mark S. Goldman and Brent T. Jordan of counsel), and Weinstein Kitchenoff & Asher, LLC, Philadelphia, Pennsylvania (David H. Weinstein of counsel), for appellant in the first above-entitled action.
    I. The policy documents are ambiguous and misleading. (Hartol Prods. Corp. v Prudential Ins. Co., 290 NY 44; Bronx Sav. Bank v Weigandt, 1 NY2d 545; United States Fid. & Guar. Co. v Annunziata, 67 NY2d 229; Sloman v First Fortis Life Ins. Co., 266 AD2d 370; Matter of Ideal Mut. Ins. Co. [Superintendent of Ins. of State of N.Y.—Harbour Assur. Co. of Bermuda], 231 AD2d 59; Holmes Protection of N.Y. v National Union Fire Ins. Co. of Pittsburgh, 152 AD2d 496; Matter of Mostow v State Farm Ins. Cos., 88 NY2d 321; Janneck v Met. Life Ins. Co., 162 NY 574; Greenfield v Philles Records, 98 NY2d 562; Computer Assoc. Intl., Inc. v U.S. Balloon Mfg. Co., Inc., 10 AD3d 699.) II. Other courts in New York and elsewhere have upheld claims against insurers in risk-free period cases. (MDW Enters. v CNA Ins. Co., 4 AD3d 338; Randazzo v Gerber Life Ins. Co., 3 AD3d 485, 2 NY3d 704; Dougherty v William Penn Life Ins. Co. of N.Y., 3 AD3d 469, 2 NY3d 704; Topel v Reliastar Life Ins. Co. of N.Y., 6 AD3d 608.) III. Dismissal of appellant’s cause of action for breach of contract was improper. (Lachs v Fidelity & Cas. Co. of N.Y., 306 NY 357; Matter of Mostow v State Farm Ins. Cos., 88 NY2d 321.) IV Dismissal of appellant’s cause of action for unjust enrichment was improper. (Wolf v National Council of Young Israel, 264 AD2d 416; Plant City Steel Corp. v National Mach. Exch., 23 NY2d 472; Merrill Lynch, Pierce, Fenner & Smith v Chipetine, 221 AD2d 284; Springer v Allstate Life Ins. Co. of N.Y., 94 NY2d 645; Great N. Ins. Co. v Mount Vernon Fire Ins. Co., 92 NY2d 682; North Star Reins. Corp. v Continental Ins. Co., 82 NY2d 281; Caldwell v ABKCO Music & Records, 269 AD2d 206; Natimir Rest. Supply v London 62 Co., 140 AD2d 261.) V Dismissal of appellant’s cause of action for breach of the implied covenant of good faith and fair dealing was improper. (Kirke La Shelle Co. v Armstrong Co., 263 NY 79; Dalton v Educational Testing Serv., 87 NY2d 384; White Angel Realty v Asian Bros. Corp., 183 Misc 2d 674; Just-Irv Sales v Air-Tite Bus. Ctr., 237 AD2d 793; Broder v MBNA Corp., 281 AD2d 369; Zurakov v Register.Com, Inc., 304 AD2d 176; Jaffe v Paramount Communications, 222 AD2d 17; Sims v First Consumers Natl. Bank, 303 AD2d 288; Frydman & Co. v Credit Suisse First Boston Corp., 272 AD2d 236.)

      Baker & McKenzie, San Francisco, California, New York City (Christopher Van Gundy and Mark R. Winston of counsel), for respondent in the first above-entitled action.
    I. Plaintiffs breach of contract claim fails as a matter of law because the policy admittedly disclosed when coverage began, and when the second premium was due. (Kraft v Sheridan, 134 AD2d 217; Atkinson v Mobil Oil Corp., 205 AD2d 719; Klein v Empire Blue Cross & Blue Shield, 173 AD2d 1006; MG Ref. & Mktg., Inc. v Knight Enters., Inc., 25 F Supp 2d 175; Nowak v Ironworkers Local 6 Pension Fund, 81 F3d 1182; Matter of Mostow v State Farm Ins. Cos., 88 NY2d 321; Greenfield v Philles Records, 98 NY2d 562; Doyne v Kerner, 96 AD2d 523; Breed v Insurance Co. of N. Am., 46 NY2d 351; Hunt Ltd. v Lifschultz Fast Frgt., Inc., 889 F2d 1274.) II. Plaintiffs breach of the implied covenant of good faith and fair dealing claim fails as a matter of law. (New York Univ. v Continental Ins. Co., 87 NY2d 308; Bank of N.Y. v Sasson, 786 F Supp 349; Holmes Protection of N.Y. v Provident Loan Socy. of N.Y., 179 AD2d 400; Teller v Bill Hayes, Ltd., 213 AD2d 141;
      Skillgames, LLC v Brody, 1 AD3d 247.) III. Plaintiffs unjust enrichment claim falls as a matter of law. (State of New York v Barclays Bank of N.Y., 76 NY2d 533; Evans v City of Johnstown, 96 Misc 2d 755; Miller v Schloss, 218 NY 400; Hornett v Leather, 145 AD2d 814, 74 NY2d 603; Joseph Sternberg, Inc. v Walber 36th St. Assoc., 187 AD2d 225; Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382; Caldwell v ABKCO Music & Records, 269 AD2d 206; Greenfield v Philles Records, 98 NY2d 562.)

      Goodkind Labaton Rudoff & Sucharow LLP, New York City (Ira A. Schochet, Joel H. Bernstein, Louis Gottlieb and Stacey Fishbein of counsel), and Lowey Dannenberg Bemporad & Selinger PC., White Plains (Richard Bemporad and Vincent Brigand of counsel), for appellants in the second above-entitled action.
    I. The only reasonable expectation of an average insured is that an annual premium payment purchases one full year of insurance coverage. (Hartol Prods. Corp. v Prudential Ins. Co., 290 NY 44; Bronx Sav. Bank v Weigandt, 1 NY2d 545; Kosierowski v Madison Life Ins. Co., 31 AD2d 930; Eagle Star Ins. Co. v International Proteins Corp., 45 AD2d 637, 38 NY2d 861; United States Fid. & Guar. Co. v Annunziata, 67 NY2d 229; Sloman v First Fortis Life Ins. Co., 266 AD3d 370; Matter of Ideal Mut. Ins. Co. [Superintendent of Ins. of State of N.Y.—Harbour Assur. Co. of Bermuda], 231 AD2d 59; Holmes Protection of N.Y. v National Union Fire Ins. Co. of Pittsburgh, 152 AD2d 496; Matter of Mostow v State Farm Ins. Cos., 88 NY2d 321.) II. Guardian Life Insurance Company of America’s policy documents are ambiguous. (Hartol Prods. Corp. v Prudential Ins. Co., 290 NY 44; Janneck v Met. Life Ins. Co., 162 NY 574; Matter of United Community Ins. Co. v Mucatel, 69 NY2d 777; Pichel v Hanover Ins. Cos., 155 Misc 2d 746, 192 AD2d 1132; Greenfield v Philles Records, 98 NY2d 562; Computer Assoc. Intl., Inc. v U.S. Balloon Mfg. Co.. Inc., 10 AD3d 699; Guardian Life Ins. Co. v Schaefer, 70 NY2d 888; Lavanant v General Acc. Ins. Co. of Am., 79 NY2d 623; Liverpool & London & Globe Ins. Co. v Kearney, 180 US 132.) III. Other courts in New York and elsewhere have upheld claims against insurers in risk-free period cases. (MDW Enters. v CNA Ins. Co., 4 AD3d 338; Randazzo v Gerber Life Ins. Co., 3 AD3d 485, 2 NY3d 704; Dougherty v William Penn Life Ins. Co. of N.Y., 3 AD3d 469, 2 NY3d 704; Topel v Reliastar Life Ins. Co. of N.Y., 6 AD3d 608.) IV Dismissal of appellants’ cause of action for violation of General Business Law § 349 was improper. (State of New York v Princess Prestige Co., 42 NY2d 104; People v Apple Health & Sports Clubs, 206 AD2d 266; Matter of State of New York v Maiorano, 189 AD2d 766; Karlin v IVF Am., 93 NY2d 282; Oswego Laborers’ Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20; Gaidon v Guardian Life Ins. Co. of Am., 94 NY2d 330; Unibell Anesthesia v Guardian Life Ins. Co. of Am., 239 AD2d 248; Taylor v American Bankers Ins. Group, 267 AD2d 178; Negrin v Norwest Mtge., 263 AD2d 39; Teller v Bill Hayes, Ltd., 213 AD2d 141.) V. Dismissal of appellants’ cause of action for breach of contract was improper. (Lacks v Fidelity & Cas. Co. of N.Y., 306 NY 357; Matter of Mostow v State Farm Ins. Cos., 88 NY2d 321.) VI. Dismissal of appellants’ cause of action for unjust enrichment was improper. (Wolf v National Council of Young Israel, 264 AD2d 416; Plant City Steel Corp. v National Mach. Exch., 23 NY2d 472; Merrill Lynch, Pierce, Fenner & Smith v Chipetine, 221 AD2d 284; Springer v Allstate Life Ins. Co. of N.Y., 94 NY2d 645; Great N. Ins. Co. v Mount Vernon Fire Ins. Co., 92 NY2d 682; North Star Reins. Corp. v Continental Ins. Co., 82 NY2d 281; Caldwell v ABKCO Music & Records, 269 AD2d 206; Natimir Rest. Supply v London 62 Co., 140 AD2d 261.)

      Skadden Arps Slate Meagher & Flom LLP, New York City (Thomas J. Dougherty of counsel), for respondent in the second above-entitled action.
    I. The six Appellate Division decisions on virtually identical claims have all been decided against appellants. (Dougherty v William Penn Life Ins. Co. of N.Y., 3 AD3d 469; Randazzo v Gerber Life Ins. Co., 3 AD3d 485; Topel v Reliastar Life Ins. Co. of N.Y., 6 AD3d 608.) II. The courts have long approved Guardian Life Insurance Company of America’s practice of providing different dates for the date of coverage and the date premiums are due. (Travelers Ins. Co. v Castro, 341 F2d 882.) III. Dismissal of the breach of contract claim was proper because the terms of the policy are unambiguous. (Randazzo v Gerber Life Ins. Co., 3 AD3d 485; Topel v Reliastar Life Ins. Co. of N.Y., 6 AD3d 608; Belt Painting Corp. v TIG Ins. Co., 100 NY2d 377; Lavanant v General Acc. Ins. Co. of Am., 79 NY2d 623; Ace Wire & Cable Co. v Aetna Cas. & Sur. Co., 60 NY2d 390; Guardian Life Ins. Co. of Am. v Schaefer, 70 NY2d 888; Pichel v Hanover Ins. Cos., 155 Misc 2d 746; Matter of United Community Ins. Co. v Mucatel, 69 NY2d 777; Matter of Ideal Mut. Ins. Co. [Superintendent of Ins. of State of N.Y.— Harbour Assur. Co. of Bermuda], 231 AD2d 59; Holmes Protection of N.Y. v National Union Fire Ins. Co. of Pittsburgh, 152 AD2d 496.) IV Appellants’ authority is unpersuasive and does not support their reading of the policy. (Metropolitan Life Ins. Co. v RJR Nabisco, Inc., 906 F2d 884; Abner, Herrman & Brock,

      Inc. v Great N. Ins. Co., 308 F Supp 2d 331; Ark Bryant Park Corp. v Bryant Park Restoration Corp., 285 AD2d 143.) V The unjust enrichment claim was also properly dismissed. (Apfel v Prudential-Bache Sec., 81 NY2d 470; Sunrise Plaza Assoc. v International Summit Equities Corp., 288 AD2d 300; Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382; Moore v Microsoft Corp., 293 AD2d 587; Plant City Steel Corp. v National Mach. Exch., 23 NY2d 472; Merrill Lynch, Pierce, Fenner & Smith v Chipetine, 221 AD2d 284; Caldwell v ABKCO Music & Records, 269 AD2d 206; Natimir Rest. Supply v London 62 Co., 140 AD2d 261.) VI. The General Business Law § 349 claim also was properly dismissed. (Ludl Elecs. Prods. v Wells Fargo Fin. Leasing, 6 AD3d 397; Citipostal, Inc. v Unistar Leasing, 283 AD2d 916; Stutman v Chemical Bank, 95 NY2d 24; Gaidon v Guardian Life Ins. Co. of Am., 94 NY2d 330; Negrin v Norwest Mtge., 263 AD2d 39; Unibell Anesthesia v (Guardian Life Ins. Co. of Am., 239 AD2d 248; Oswego Laborers’ Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20; Taylor v American Bankers Ins. Group, 267 AD2d 178.)

      Wechsler Harwood LLP, New York City (William R. Weinstein and Robert I. Harwood of counsel), for appellant in the third above-entitled action.
    I. The lower court decisions dismissing plaintiffs claim for breach of contract are erroneous and should be reversed by this Court. (Hartol Prods. Corp. v Prudential Ins. Co., 290 NY 44; United States Fid & Guar. Co. v Annunziata, 67 NY2d 229; Sloman v First Fortis Life Ins. Co., 266 AD2d 370; Bronx Sav. Bank v Weigandt, 1 NY2d 545; Matter of Mostow v State Farm Ins. Cos., 88 NY2d 321; Tri Town Antlers Found. v Fireman’s Fund Ins. Co., 158 AD2d 908, 76 NY2d 841; Lachs v Fidelity & Cas. Co. of N.Y., 306 NY 357; Garry v Worldwide Underwriters Ins. Co., 120 Misc 2d 91, 101 AD2d 717; Guardian Life Ins. Co. of Am. v Schaefer, 70 NY2d 888; Matter of United Community Ins. Co. v Mucatel, 127 Misc 2d 1045, 119 AD2d 1017, 69 NY2d 777; Miller v Continental Ins. Co., 40 NY2d 675.) II. The lower courts erred in dismissing plaintiffs alternative claim for unjust enrichment. (Wolf v National Council of Young Israel, 264 AD2d 416; Paramount Film Distrib. Corp. v State of New York, 30 NY2d 415; Plant City Steel Corp. v National Mach. Exch., 23 NY2d 472; Limited v McCrory Corp., 169 AD2d 605; Caldwell v ABKCO Music & Records, 269 AJD2d 206; Natimir Rest. Supply v London 62 Co., 140 AD2d 261; Greenfield v Philles Records, 288 AD2d 59; Louros v Cyr, 175 F Supp 2d 497.)

      Sonnenschein Nath & Rosenthal LLP, New York City {Reid L.

      Ashinoff Sandra D. Hauser and Michael S. Gugig of counsel), for respondent in the third above-entitled action.
    I. The breach of contract claim was properly dismissed. (Leon v Martinez, 84 NY2d 83; WorldCom, Inc. v Sandoval, 182 Misc 2d 1021; Breed v Insurance Co. of N. Am., 46 NY2d 351; Teichman v Community Hosp. of W. Suffolk, 87 NY2d 514; Chimart Assoc. v Paul, 66 NY2d 570; Teitelbaum Holdings v Gold, 48 NY2d 51; Bethlehem Steel Co. v Turner Constr. Co., 2 NY2d 456; Ruttenberg v Davidge Data Sys. Corp., 215 AD2d 191; R & D Maidman Family L.P. v Scottsdale Ins. Co., 4 Misc 3d 728; A. Meyers & Sons Corp. v Zurich Am. Ins. Group, 74 NY2d 298.) II. There can be no claim for unjust enrichment where an enforceable contract exists. (Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382; Metropolitan Life Ins. Co. v Noble Lowndes Intl., 192 AD2d 83; Feigen v Advance Capital Mgt. Corp., 150 AD2d 281; Alamo Contract Bldrs. v CTF Hotel Co., 242 AD2d 643; Tierney v Capricorn Invs., 189 AD2d 629; Strategic Risk Mgt. v Federal Express Corp., 174 Misc 2d 383, 253 AD2d 167; Greenfield v Philles Records, 288 AD2d 59; Caldwell v ABKCO Music & Records, 269 AD2d 206; Limited v McCrory Corp., 169 AD2d 605; Natimir Rest. Supply v London 62 Co., 140 AD2d 261.)
   OPINION OP THE COURT

G.B. Smith, J.

The primary issue in each of these cases is whether there is a breach of an insurance contract when a policy date is set prior to an effective date and the insured, in the first year of the policy, must pay for days that are not covered. We hold that the insurers’ CPLR 3211 (a) (1) and (7) motions to dismiss the complaints were properly granted, and we affirm the orders of the Appellate Division.

Facts

Goldman v Metropolitan Life Ins. Co.

On January 30, 2002, plaintiff “submitted an application to MetLife for a yearly renewable term life insurance policy in the amount of $250,000.” On May 30, 2002, the policy was delivered and plaintiff paid his annual premium. The insurer set the policy date as May 6, 2002. The total annual premium amount was $217.50.

Goldman brought a putative class action alleging breach of contract, breach of the implied covenant of good faith and fair dealing, unjust enrichment and violations under General Business Law § 349. In the complaint and on this motion to dismiss, plaintiff argues that since he was not covered for the 24 days between May 6 and May 30, 2002, yet was required to pay for that period of time, there was a breach of contract. He argues that the term “annual premium” is ambiguous because it leads the average insured to believe that he or she will receive 365 days of coverage. In fact, based upon the delay from the policy date until the date of payment and delivery of the policy, there are fewer than 365 days of coverage in the first year of the policy.

Defendant counters that there is no breach, the policy is not ambiguous and that the dates of coverage are in accordance with the payment of the premiums. Defendant points to the language of the application, which is incorporated into the policy and states “no insurance will take effect until a policy is delivered to the owner and the full first premium due is paid.” Further, plaintiff had the option of not accepting the policy and receiving a refund of any premiums already paid. According to defendant, the term “annual premium” never referred to the days of coverage but rather to the “frequency of payment.”

Supreme Court denied MetLife’s motion to dismiss based on ambiguity in the contract specifically related to payment for days of coverage without actually receiving coverage. The Appellate Division reversed, granted the insurer’s motion and dismissed the complaint, finding “that the terms of the subject insurance policy, including the initial application, which was incorporated therein, were not ambiguous and clearly set forth when coverage was to begin and when the first and subsequent annual premiums were to be paid by the C.O.D. policyholders.” (13 AD3d 289, 290 [2004].) The Appellate Division granted plaintiffs motion for leave to appeal and certified the following question to this Court: “Was the order of this Court, which reversed the order of Supreme Court, properly made?”

Franco v Guardian Life Ins. Co. of Am.

On June 13, 2000, the Francos signed an application for a “modified premium whole life insurance policy in the amount of $2 million.” On July 28, 2000, Guardian Life sent a policy to the Francos. On the same day, the Francos completed a second application in order to change the beneficiary from the wife to a trust. The total initial annual premium of $2,790 was paid on August 2, 2000. On August 28, 2000, Guardian Life reissued the policy to plaintiffs with the same policy date of July 20, 2000. The policy became effective only after the policy was delivered and accepted by the insured. Even though it was permitted by the application, the Francos chose not to purchase interim coverage and receive a conditional receipt for temporary insurance to cover the dates between the date of application and delivery of the policy.

The Franco plaintiffs brought a putative class action for breach of contract, unjust enrichment and violations of General Business Law § 349. They argue that they were required to pay for a period of time in which the insurance company assumed no financial risk and, thus, unjustly collected monies without providing coverage. In addition to the breach of contract and unjust enrichment claims, the Francos argue that Guardian engaged in deceptive business practices in violation of General Business Law § 349. The Francos argue that the term “annual” is ambiguous because it does not mean a calendar year which is what the average insured would interpret the word to mean.

Defendant counters that the life insurance policy is clear on its face, that the payment of the premiums is stated on the policy and that the policy is not ambiguous. Also, defendant argues that the date of delivery was July 28, 2000, not October 10, 2000, and that the premiums are due from the policy date, not the date of delivery of the policy. Further, the Francos had an option either to pay at the time of signing the application and have coverage from the policy date or to pay at the time of delivery which would give them the same policy date but no coverage from the policy date until the date of payment.

Katz v American Mayflower Life Ins. Co. of N.Y.

On July 11, 1997, plaintiff signed an insurance application with American Mayflower Life Insurance Company of New York for a term life policy of one million dollars. The policy was issued on September 2, 1997 and delivered on September 24, 1997. On the date of delivery, plaintiff sent in his initial premium for $447.20. His annual premium, as stated on the contract, was $1,720, to be paid in quarterly installments. The policy also stated when each subsequent premium was due until the full premium was paid.

Plaintiff brought a putative class action alleging breach of contract and unjust enrichment. Like the Goldman and Franco plaintiffs, Katz argues that the insurance contract was breached and that the defendant was unjustly enriched.

Defendant denies that the policy is ambiguous and instead points to the policy language as clearly stating the dates of coverage and when the premiums are due. Defendant argues that all premiums, after the initial premium, were due based on the policy date, not the delivery date, and that plaintiff continued to pay premiums under this policy for four years prior to filing a complaint. In fact, the premium schedule which governed defendant’s policy stated that the premiums would be due on the 2nd of March, June, September and December.

While the Goldman and Franco policies provide for a 10-day “free look” period, the Katz policy allows for a 20-day “free look” period in which the insured can reject the policy and be refunded any previously paid premiums. The policy states that the premiums must be paid in advance of coverage and that the total initial premium must be paid as “shown in the Schedule on or before policy delivery.”

Supreme Court granted the motion to dismiss brought by Guardian Life against the Francos. On the same date, the Supreme Court granted American Mayflower’s motion to dismiss the Katz complaint for the reasons stated in its Franco decision. The Appellate Division affirmed Supreme Court in Katz, and, based upon its Katz decision, affirmed Supreme Court’s determination in Franco v Guardian Life. In Katz, the Appellate Division wrote:

“due to plaintiffs selection of the C.O.D. payment option, American Mayflower set different dates for the commencement of coverage and the premium due dates [which] does not constitute a breach of contract since they are, as plaintiff concedes, part of the contract. Thus, any claim that plaintiff paid a premium for a period of time before coverage commenced is contradicted by the express terms of the contract.” (14 AD3d 195, 198 [2004].)

In Franco and Katz, the Appellate Division granted plaintiffs’ motion for leave to appeal to this Court and certified the following question: “Was the order of this Court, which affirmed the order of the Supreme Court, properly made?”

Discussion

When determining a motion to dismiss, the court must “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (see Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 303 [2001]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]). A CPLR 3211 dismissal “may be granted where documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law” (Held v Kaufman, 91 NY2d 425, 430-431 [1998] [citation and internal quotation marks omitted]).

Breach of Contract

There were two options for payment in each of the insurance agreements. Plaintiffs could pay at the time the application was submitted and receive temporary coverage until the delivery of the policy, or pay at the time of delivery of the policy and have coverage become effective upon receipt of the first initial premium and delivery of the policy. The second option was the cash on delivery (C.O.D.) option. In all three cases, plaintiffs chose the second option.

Goldman, Katz and Franco all argue that their insurance contracts were breached. The basic issue is whether an insurance contract using the word “annual” to describe premium payments is ambiguous as to coverage because the insured, in the first year, receives less than 365 days of coverage. The insureds argue that the policy is ambiguous because it is the average insured’s understanding that an annual premium purchases a full year of coverage. However, “[m]ere assertion by one that contract language means something to him, where it is otherwise clear, unequivocal and understandable when read in connection with the whole contract, is not in and of itself enough to raise a triable issue of fact” (see Bethlehem Steel Co. v Turner Constr. Co., 2 NY2d 456, 460 [1957]).

In each case, the Appellate Division properly held that the contracts could be interpreted only in one manner and granted the CPLR 3211 motions to dismiss.

There is no evidence that MetLife was not bargaining in good faith and fair dealing with the insured (see Kirke La Shelle Co. v Armstrong Co., 263 NY 79, 85 [1933]). The application clearly states the terms and conditions of the insurance policy. Further, the policy also states when coverage will begin. Plaintiff argues that the period in the contract which allows the insured to return the policy and receive a refund of any paid premiums is misleading. Plaintiff cites several lower court cases from foreign jurisdictions that have rejected premiums based on a policy date versus a coverage date (see Semler v Guardian Life Ins. Co. of Am., case No. 990637 [Cal Super Ct 2002]; Semler v First Colony Life Ins. Co., case No. 984902 [Cal Super Ct 1999]; Burstein v First Penn-Pac. Life Ins. Co., case No. 01-985-CIV [US Dist Ct, SD Fla 2002]). Those cases were based on the law of their respective states (see Semler v Guardian Life Ins. Co., supra). In other states, courts have permitted premiums that are based upon a policy date rather than a coverage date (Life Ins. Co. of the Southwest v Overstreet, 580 SW2d 929 [Tex Ct Civ App 1979]; Travelers Ins. Co. v Castro, 341 F2d 882 [1st Cir 1965]).

Plaintiffs have cited no case law in New York State holding that the “Risk Free” period is misleading. The fact that the insured can return the contract does not mean that the contract period would otherwise be covered even without a payment. There is nothing in the “Risk Free” period suggesting that the coverage will start from the policy date without the payment of a premium.

Unjust Enrichment

Plaintiffs in each case make a claim for unjust enrichment. The theory of unjust enrichment lies as a quasi-contract claim. It is an obligation the law creates in the absence of any agreement (see State of New York v Barclays Bank of N.Y., 76 NY2d 533, 540 [1990]). Here, in each case, there was no unjust enrichment because the matter is controlled by contract (see Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 388 [1987] [“(t)he existence of a valid and enforceable written contract governing a particular subject matter ordinarily precludes recovery in quasi contract for events arising out of the same subject matter”]). Given that the disputed terms and conditions fall entirely within the insurance contract, there is no valid claim for unjust enrichment.

General Business Law § 349

The Francos’ claim that General Business Law § 349 was breached should also be rejected. That section makes unlawful “ [deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state.” (§ 349 [a].) Plaintiffs have not properly alleged any deceptive practices.

Accordingly, in each case, the order of the Appellate Division should be affirmed, with costs, and the certified question not answered as unnecessary.

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

In each case: Order affirmed, etc.

       Goldman does not pursue his General Business Law § 349 claim in this Court.