source: Caselaw Access Project

author: CIPARICK, J.

license: Public Domain

text:
    [877 NE2d 1288, 847 NYS2d 511]
    John E. Simone et al., Appellants, v Jay J. Heidelberg et al., Respondents.
    Argued October 9, 2007;
    decided November 15, 2007

      POINTS OF COUNSEL

      Daniel D. Leddy, Jr., Staten Island, for appellants.
    I. The easement extinguished by merger was not re-created de novo. (Castle Assoc. v Schwartz, 63 AD2d 481; Riccio v De Marco, 188 AD2d 847; Seebaugh v Borruso, 220 AD2d 573; Witter v Taggart, 78 NY2d 234; Puchalski v Wedemeyer, 185 AD2d 563; Parsons v Johnson, 68 NY 62; Buffalo Academy of Sacred Heart v Boehm Bros., 267 NY 242.) II. The easement was abandoned as a matter of law. (De Jong v Abphill Assoc., 121 AD2d 678; Gerbig v Zumpano, 7 NY2d 327; Atlantic Mills of R.I. v New York Cent. R.R. Co., 221 App Div 386; DeCesare v Feldmeier, 184 AD2d 220.)

      John Z. Marangos, Staten Island, for respondents.
    I. The easement was re-created de novo. (Castle Assoc. v Schwartz, 63 AD2d 481; Witter v Taggart, 78 NY2d 234; Puchalski v Wedemeyer, 185 AD2d 563; Parsons v Johnson, 68 NY 62; Fischer v

      Anger, 283 AD2d 865; Will v Gates, 89 NY2d 778; Henricksen v Trails End Co., 303 AD2d 458; 328 Owners Corp. v 330 W. 86 Oaks Corp., 8 NY3d 372; Riccio v De Marco, 188 AD2d 847.) II. Plaintiffs-appellants are not innocent, bona fide purchasers. (Farrell v Sitaras, 22 AD3d 518; Andy Assoc. v Bankers Trust Co., 49 NY2d 13; Fairmont Funding v Stefansky, 301 AD2d 562; Tibby v Fletcher, 13 AD3d 877; Millbrook Hunt v Smith, 249 AD2d 281; Bridger v Pierson, 45 NY 601; Strnad v Brudnicki, 200 AD2d 735; Baker v Bliss, 39 NY 70; Hudson Val. Cablevision Corp. v 202 Devs., 185 AD2d 917; Witter v Taggart, 78 NY2d 234.) III. The easement is necessary to the beneficial use and enjoyment of defendants-respondents’ property. (Minogue v Monette, 158 AD2d 843; Resk v City of New York, 293 AD2d 661; Asche v Land & Bldg. Known as 64-29 232nd St., 12 AD3d 386; Town of Pound Ridge v Golenbock, 264 AD2d 773; Silvercrest v St. Christopher-Ottile, 194 AD2d 720; 231 Ctr. St. Assoc. v Post Bros. Serv. Stas., 252 AD2d 406; Riccio v De Marco, 188 AD2d 847; Fritz v Tompkins, 168 NY 524.) IV The evidence presented by plaintiffs-appellants does not show unequivocal acts showing a clear intention to permanently abandon the easement. (Consolidated Rail Corp. v MASP Equip. Corp., 67 NY2d 35; Conabeer v New York Cent. & Hudson Riv. R.R. Co., 156 NY 474; Rentar Dev. Corp. v City of New York, 160 AD2d 860; Castle Assoc. v Schwartz, 63 AD2d 481; Welsh v Taylor, 134 NY 450; De Jong v Abphill Assoc., 121 AD2d 678; Gerbig v Zumpano, 7 NY2d 327.)
   OPINION OF THE COURT

CIPARICK, J.

In 1933, the then-individual owners of adjacent properties, located at 157-159 Driggs Street and 163-165 Driggs Street on Staten Island, entered into an agreement creating a reciprocal easement, in which a portion of each other’s property was to be used solely as a driveway. The easement was apparently created so that the owner of 157-159 Driggs, the dominant estate, could access a garage structure located thereon. In 1978, both parcels were acquired by common owners, the Accardos. Four years later, in 1982, the Accardos subdivided 163-165 Driggs into separate estates. The deed transferring the purported servient estate, now 163 Driggs, to the Webers made no reference to a driveway easement. In 1984, the Accardos then conveyed what had been the dominant estate, 157-159 Driggs, under a deed to the Corrados that referenced the driveway easement, which by its terms burdened the neighboring property—163 Driggs.

In 1993, plaintiffs purchased 163 Driggs from the Webers under a deed that again made no mention of a driveway easement. Three years later, in 1996, defendants purchased 157-159 Driggs from the Corrados, which deed contained language identical to the driveway easement language found in their immediate predecessor’s deed. All deeds in both parcels’ chains of title were duly recorded in the Richmond County Clerk’s Office.

Although plaintiffs had knowledge that there had once existed an easement—they had seen it depicted in a survey and had conversations with the prior owners—by 2003, a 50-foot tree had grown on defendants’ property, blocking access to the garage. Over the years, the garage had been used as a tool shed and to store a motorcycle. There was also a fence around the rear yard of the property preventing automobile access to the garage. Plaintiffs’ property—163 Driggs—also had a permanent deck constructed by the Webers in 1986 that covered a portion of the purported easement area.

In December 2003, defendants had the tree and fencing removed to permit access to the garage via the purported driveway easement. Shortly thereafter, plaintiffs commenced this action for a declaration that the easement was no longer in force or effect and restraining defendants from using any part of plaintiffs’ property. Defendants counterclaimed, seeking, among other things, a declaration that the easement remains in full force and effect and that, in any event, the easement survived by necessity.

Both parties moved for summary judgment. Supreme Court granted plaintiffs’ motion, opining that the easement was extinguished when it came under common ownership, and that it was not re-created because the deed conveying 163 Driggs— the purported servient estate—did not reference the easement. The Appellate Division reversed, agreeing initially with Supreme Court that “[t]he easement was extinguished by merger when the subject properties came under common ownership” (27 AD3d 639, 640 [2006]). However, the Appellate Division disagreed with Supreme Court in concluding that “[t]he easement was recreated de novo when the properties were separately sold and the easement was clearly noted in each deed conveying the dominant estate . . . while the owners of the servient estate had actual knowledge of its existence” (id.). We granted leave to appeal, and now reverse.

It is undisputed that the easement was extinguished when the parcels came under common ownership (see Will v Gates, 89 NY2d 778, 784 [1997]). The parties, however, dispute the circumstances under which an extinguished easement may be recreated. Plaintiffs contend that an easement may be re-created in a subsequent conveyance only if there is language evincing the encumbrance in a deed recorded in the servient estate’s chain of title. Defendants contend that an easement may be recreated when the encumbrance is recorded in the dominant estate’s chain of title and the owners of the servient estate have actual notice of the encumbrance. We agree with plaintiffs.

The Appellate Division and defendants rely on Witter v Taggart (78 NY2d 234 [1991]) for the proposition that the owner of a servient estate needs only actual notice of an extinguished easement for it to be re-created, when the easement is recorded in the dominant estate’s chain of title. In Witter, the common owner conveyed the dominant estate in a deed that contained an encumbrance that burdened the servient estate, which the common owner retained. The servient estate was subsequently conveyed without reference to the encumbrance. We noted that

“[a] grantor may effectively extinguish or terminate [an encumbrance] when . . . the grantor conveys retained servient land to a bona fide purchaser who takes title without actual or constructive notice of the covenant because the grantor and dominant owner failed to record the covenant in the servient land’s chain of title” Witter at 239).

We held that an encumbrance must be “recorded] in the servient chain [of title] . . . so as to impose notice on subsequent purchasers of the servient land” {id. at 240). We did not hold that a subsequent purchaser’s notice of an extinguished encumbrance, that once burdened the servient estate, was sufficient to re-create that encumbrance.

Here, the easement was extinguished when the common owners, the Accardos, acquired title to both parcels. The Accardos subsequently conveyed the purported servient estate to the Webers, plaintiffs’ predecessor in title, unencumbered by any mention of the extinguished driveway easement. Neither did the Accardos in conveying the parcel to the Webers reserve for themselves the right to utilize the easement. Thus, when the Accardos subsequently conveyed the purported dominant estate to the Corrados, the right to burden the previously conveyed parcel no longer existed. They thus lacked the authority to recreate the driveway easement over the servient estate at the time they transferred the dominant estate. It is well settled that “an easement can be created only by one who has title to, or an estate in, the servient tenement” (5-40 Warren’s Weed, New York Real Property § 40.10 [2007]; see also Matter of Estate of Thomson v Wade, 69 NY2d 570, 573-574 [1987]). It is irrelevant that plaintiffs may have had notice of an earlier easement, since the easement was not in existence at the time they purchased their property and the Accardos had not re-created the easement upon sale to plaintiffs’ predecessor in title—the first sale from the common owner. Thus, the references to the easement in the 1984 and 1996 deeds are ineffective to burden the neighboring property.

In further support of their purported easement, defendants seek to portray it as an easement by necessity, which was not extinguished when the estates came under common ownership (see e.g. Stilbell Realty Corp. v Cullen, 43 AD2d 966 [2d Dept 1974]). The party asserting an easement by necessity bears the burden of establishing by clear and convincing evidence (see Huggins v Castle Estates, 36 NY2d 427, 430 [1975]) “that there was a unity and subsequent separation of title, and [ ] that at the time of severance an easement over [the servient estate’s] property was absolutely necessary” (Stock v Ostrander, 233 AD2d 816, 817 [3d Dept 1996] [emphasis added]). Significantly, “the necessity must exist in fact and not as a mere convenience” (Heyman v Biggs, 223 NY 118, 126 [1918]) and must be indispensable to the reasonable use for the adjacent property.

Here, it is undisputed that there was a unity and subsequent separation of the estates. At the time the estates were severed, however, the easement was not absolutely necessary. The need to utilize the easement arose only when defendants felled the tree that blocked automobile access to the garage—some 21 years after the estates were severed. An example of an easement that was absolutely necessary is that found in Stock. There, when the estates were severed, the dominant estate “became landlocked by other properties with no access to a public highway . . . [t]hus, the easement was absolutely necessary” (233 AD2d at 818), because there was no other access to the property. This is clearly not the situation here. Defendants’ sole claimed “necessity” for the easement is the “need” to access off-street parking. That purported need is nothing more than a mere convenience. No easement by necessity is present here.

Because we hold that the easement was not re-created, it is unnecessary to consider plaintiffs’ claim that the easement was abandoned by defendants. Plaintiffs’ remaining contentions are without merit.

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

Chief Judge Kaye and Judges Graffeo, Read, Smith, Pigott and Jones concur.

Order reversed, etc.


author: Pigott, J.

text:
    [878 NE2d 589, 848 NYS2d 7]
    Erno Nussenzweig, Appellant, v Philip-Lorca diCorcia et al., Respondents.
    Argued October 10, 2007;
    decided November 15, 2007

      POINTS OF COUNSEL

      Jay Goldberg, P.C., New York City (Jay Goldberg, Jared M. Lefkowitz and Elizabeth Hill of counsel), for appellant.
    I. The Appellate Division rule that the statute of limitations runs from the time of first use is erroneous. (Surace v Danna, 248 NY 18; Lahiri v Daily Mirror, Inc., 162 Misc 776; Flores v Mosler Safe Co., 7 NY2d 276; Sporn v MCA Records, 58 NY2d 482; Gregoire v Putnam’s Sons, 298 NY 119; Roberson v Rochester Folding Box Co., 171 NY 538; Rothstein v Tennessee Gas Pipeline Co., 204 AD2d 39, 87 NY2d 90; Rinaldi v Viking Penguin, 52 NY2d 422; Simcuski v Saeli, 44 NY2d 442; Ross v Louise Wise Servs., Inc., 8 NY3d 478.) II. Summary judgment was improvidently granted. (Mastrovincenzo v City of New York, 435 F3d 78; Titan Sports, Inc. v Comics World Corp., 870 F2d 85; Davis v High Socy. Mag., 90 AD2d 374; Quezada v Daily News, 125 Misc 2d 302; Stephano v News Group Publs., 64 NY2d 174; Zacchini v Scripps-Howard Broadcasting Co., 433 US 562.) III. Appellant is entitled to the protection of sections 50 and 51 of the Civil Rights Law. (Pittsburgh Press Co. v Pittsburgh Comm’n on Human Relations, 413 US 376; Irish Lesbian & Gay Org. v Giuliani, 918 F Supp 732; Schenck v United States, 249 US 47; Chaplinsky v New Hampshire, 315 US 568; Murphy v Ramsey, 114 US 15; Flores v Mosler Safe Co., 7 NY2d 276; Sperry & Hutchinson Co. v Rhodes, 220 US 502; Time, Inc. v Hill, 385 US 374; Hobbs v County of Westchester, 397 F3d 133; Joseph Burstyn, Inc. v Wilson, 343 US 495.)

      Munger, Tolles & Olson LLP (Lawrence C. Barth, of the California bar, admitted pro hac vice, of counsel), Bingham McCutchen LLP, New York City (Kenneth I. Schacter of counsel), and Georges G. Lederman for respondents.
    I. The Appellate Division’s conclusion that appellant’s claims were time-barred was correct. (McCoy v Feinman, 99 NY2d 295; State of New York v Seventh Regiment Fund, 98 NY2d 249; Vigilant Ins. Co. of Am. v Housing Auth. of City of El Paso, Tex., 87 NY2d 36; Gregoire v Putnam’s Sons, 298 NY 119; Rinaldi v Viking Penguin, 52 NY2d 422; Firth v State of New York, 98 NY2d 365; Keeton v Hustler Magazine, Inc., 465 US 770; Castel v Sherlock Corp., 159 AD2d 233; Costanza v Seinfeld, 279 AD2d 255; Wal

      den v F.W. Woolworth Co., 138 AD2d 261.) II. However this Court decides the limitations issue, it should proceed to address Supreme Court’s alternative ground for dismissal. (People v Carvajal, 6 NY3d 305; Matter of Gold v Lomenzo, 29 NY2d 468; Matter of Concord Realty Co. v City of New York, 30 NY2d 308; Matter of Friends of Pine Bush v Planning Bd. of City of Albany, 86 AD2d 246; National Bank of N. Am. v International Bhd. of Elec. Workers Local No. 3, Pension & Vacation Funds, 69 AD2d 679; Brown v Board of Educ., Whitesboro Cent. School Dist., 88 AD2d 184; East Meadow Community Concerts Assn. v Board of Educ. of Union Free School Dist No. 3, 18 NY2d 129.) III. The uses of the photograph did not violate sections 50 and 51 of the Civil Rights Law. (Roberson v Rochester Folding Box Co., 171 NY 538; Time, Inc. v Hill, 385 US 374; Arrington v New York Times Co., 55 NY2d 433, 459 US 1146; Cohen v Hallmark Cards, 45 NY2d 493; Howell v New York Post Co., 81 NY2d 115; Namath v Sports Illustrated, 80 Misc 2d 531; Stephano v News Group Publs., 64 NY2d 174; Pagan v New York Herald Tribune, 32 AD2d 341, 26 NY2d 941; Messenger v Gruner + Jahr Print. & Publ., 94 NY2d 436; Spahn v Julian Messner, Inc., 18 NY2d 324, 387 US 239.) IV Dismissal of this action would have been required on constitutional grounds, even if sections 50 and 51 of the Civil Rights Law did not provide an exception for artistic expression. (Simeonov v Tiegs, 159 Misc 2d 54; Time, Inc. v Hill, 385 US 374; Hoepker v Kruger, 200 F Supp 2d 340; Central Hudson Gas & Elec. Corp. v Public Serv. Comm’n of N. Y, 447 US 557; Nordyke v Santa Clara County, 110 F3d 707; Board of Trustees of State Univ. of N.Y. v Fox, 492 US 469; Bery v City of New York, 97 F3d 689, 520 US 1251; Riley v National Federation of Blind of N. C., Inc., 487 US 781; Joseph Burstyn, Inc. v Wilson, 343 US 495; Texas v Johnson, 491 US 397.) V The viability of Erno Nussenzweig’s claims was appropriate for summary adjudication. (Lewis v Safety Disposal Sys. of Pa., Inc., 12 AD3d 324; Alvarez v Prospect Hosp., 68 NY2d 320; Daliendo v Johnson, 147 AD2d 312; Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966; Zuckerman v City of New York, 49 NY2d 557; Gala Trading v Adrienne, Inc., 174 AD2d 478; Time, Inc. v Hill, 385 US 374; Stephano v News Group Publs., 64 NY2d 174; Altbach v Kulon, 302 AD2d 655; Simeonov v Tiegs, 159 Misc 2d 54.)

      Proskauer Rose LLP, New York City (Charles S. Sims and Matthew J. Morris of counsel), for the New York Times Company and others, amici curiae.
    I. “Advertising purposes” and “purposes of trade” exclude First Amendment expression. (Rob

      erson v Rochester Folding Box Co., 171 NY 538; Messenger v Gruner + Jahr Print. & Publ., 94 NY2d 436; Finger v Omni Publs. Intl., 77 NY2d 138; Howell v New York Post Co., 81 NY2d 115; Stephano v News Group Publs., 64 NY2d 174; Arrington v New York Times Co., 55 NY2d 433; Bytner v Capital Newspapers, Div. of Hearst Corp., 67 NY2d 914; Freihofer v Hearst Corp., 65 NY2d 135; Murray v New York Mag. Co., 27 NY2d 406; Pagan v New York Herald Tribune, 32 AD2d 341, 26 NY2d 941.) II. Plaintiffs constitutional arguments are without merit, and if the statutes were applicable here they would violate the First Amendment. (Bartnicki v Vopper, 532 US 514; Florida Star v B. J. F., 491 US 524; Smith v Daily Mail Publishing Co., 443 US 97; Mastrovincenzo v City of New York, 435 F3d 78; Hobbs v County of Westchester, 397 F3d 133; Arrington v New York Times Co., 55 NY2d 433.)
   OPINION OF THE COURT

Pigott, J.

Between 1999 and 2001, defendant Philip-Lorca diCorcia, an artist and photographer, took candid photographs of individuals walking through Times Square. None of those photographed were aware that diCorcia had taken their picture.

In the fall of 2001, diCorcia exhibited certain of the photographs at an art gallery owned by defendant Pace/MacGill, Inc. In conjunction with that event, Pace/MacGill published and sold a catalogue containing images on display at the exhibition. Moreover, 10 limited edition prints of each photograph were created for sale to the public.

One of the images was that of plaintiff Erno Nussenzweig. However, it was not until nearly four years later, in March of 2005, that plaintiff first learned that his photograph had been taken, used as part of the exhibition and sold to the public. Shortly thereafter, plaintiff commenced this action asserting that defendants had violated his statutory right of privacy as set forth in Civil Rights Law §§ 50 and 51.

Defendants moved for summary judgment dismissing the complaint on the ground that any claim of a Civil Rights Law §§ 50-51 violation had to have been commenced within one year of the initial display of the photograph, not one year from plaintiff’s discovery of the display as he argued. Supreme Court granted defendants’ motions for summary judgment and the Appellate Division affirmed, but granted plaintiff leave to appeal to this Court to answer the certified question “Was the order of Supreme Court, as affirmed by this Court, properly made?”

Pursuant to CPLR 215 (3), “an action to recover damages for . . . libel, slander ... or a violation of the right of privacy under section fifty-one of the civil rights law” must be brought within one year. In Gregoire v Putnam’s Sons, this Court formulated the single publication rule, which states that a cause of action for defamation accrues on the date the offending material is first published (298 NY 119, 125-126 [1948]). Our holding in Gregoire was premised on the underlying policy that statutes of limitations are “designed ‘to spare the courts from litigation of stale claims, and the citizen from being put to his defense after memories have faded, witnesses have died or disappeared, and evidence has been lost’ ” (id. at 125, quoting Chase Securities Corp. v Donaldson, 325 US 304, 314 [1945]).

Since our decision in Gregoire, New York appellate courts addressing the timeliness of statutory right of privacy claims have generally applied the single publication rule (see E.B. v Liberation Publs., 7 AD3d 566, 567 [2d Dept 2004], citing Castel v Sherlock Corp., 159 AD2d 233 [1st Dept 1990]; see also Costanza v Seinfeld, 279 AD2d 255, 255-256 [1st Dept 2001]; but see Russo v Huntington Town House, 184 AD2d 627, 628 [2d Dept 1992] [holding that the statute of limitations on Civil Rights Law §§ 50 and 51 claims runs from the date of the most recent violations of the statute]). The policy underlying the adoption of that rule is likewise implicated here and we therefore hold that the single publication rule applies to claims brought pursuant to Civil Rights Law §§ 50 and 51. Because the publishing event giving rise to plaintiffs right of privacy claims first occurred no later than the fall of 2001, more than one year before he commenced suit, plaintiffs claims are time-barred.

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

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

Order affirmed, etc.


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

text:
    [879 NE2d 152, 849 NYS2d 13]
    The People of the State of New York, Respondent, v Anthony Hill, Appellant.
    Argued October 16, 2007;
    decided November 15, 2007

      POINTS OF COUNSEL

      Center for Appellate Litigation, New York City (Barbara Zolot and Robert S. Dean of counsel), for appellant.
    The lower court could not remedy the Catu error by modifying appellant’s sentence in lieu of plea vacatur. (People v Van Deusen, 7 NY3d 744; People v Catu, 4 NY3d 242; People v Harris, 61 NY2d 9; Boykin v Alabama, 395 US 238; North Carolina v Alford, 400 US 25; People v Ford, 86 NY2d 397; People v Louree, 8 NY3d 541; People v Damiano, 87 NY2d 477; People v Selikoff, 35 NY2d 227; People v Richardson, 100 NY2d 847.)

      Robert M. Morgenthau, District Attorney, New York City (David M. Cohn and Alan Gadlin of counsel), for respondent.
    Defendant’s guilty plea should not be disturbed, because he received the full benefit of his bargain. (People v Keizer, 100 NY2d 114; People v Alexander, 97 NY2d 482; People v Hansen, 95 NY2d 227; People v Frederick, 45 NY2d 520; People v Miller, 42 NY2d 946; People v Fiumefreddo, 82 NY2d 536; People v Catu, 4 NY3d 242; People v Ford, 86 NY2d 397; People v Moissett, 76 NY2d 909; People v Torres, 45 NY2d 751.)
   OPINION OF THE COURT

Chief Judge Kaye.

In April 2002, defendant pleaded guilty to rape in the first degree in full satisfaction of the indictment. The court sentenced him to a determinate 15-year imprisonment term. No mention was made, either during the plea or during the sentencing that followed one month later, of an additional five-year term of post-release supervision, which defendant allegedly learned of from a fellow inmate. Defendant now claims that he would not have agreed to the plea had he known of the postrelease supervision, and he seeks vacatur of the plea.

As has been well established in our law, when a criminal defendant waives the fundamental right to trial by jury and pleads guilty, due process requires that the waiver be knowing, voluntary and intelligent (see NY Const, art I, § 6; People v Ford, 86 NY2d 397, 403 [1995]; see also McCarthy v United States, 394 US 459, 466 [1969] [“if a defendant’s guilty plea is not equally voluntary and knowing, it has been obtained in violation of due process and is therefore void”]). Prior to accepting a guilty plea, therefore, a defendant must be informed of the direct consequences of the plea. When a court fails to so advise the defendant, the plea cannot be deemed knowing, voluntary and intelligent, and defendant may withdraw the plea and be returned to his or her uncertain status before the negotiated bargain (see People v Harris, 61 NY2d 9, 17 [1983]; People v Gina M. M., 40 NY2d 595 [1976]).

Among the direct consequences of pleading guilty is the period of postrelease supervision that follows a determinate sentence of incarceration. As we explained in People v Catu (4 NY3d 242, 245 [2005]), “[b]ecause a defendant pleading guilty to a determinate sentence must be aware of the postrelease supervision component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action, the failure of a court to advise of postrelease supervision requires reversal of the conviction.” In that the constitutional defect lies in the plea itself and not in the resulting sentence, vacatur of the plea is the remedy for a Catu error since it returns a defendant to his or her status before the constitutional infirmity occurred.

In People v Van Deusen (7 NY3d 744 [2006]), defendant pleaded guilty, and the trial court promised a determinate sentencing range of between 5 to 15 years of incarceration with no mention of the postrelease supervision term. On the eve of sentencing, defendant moved to withdraw her guilty plea based on the trial court’s failure to inform her of postrelease supervision. The court denied her motion and sentenced defendant to a determinate term of eight years of imprisonment with five years of postrelease supervision. This Court rejected the Appellate Division’s rationale that vacatur of a guilty plea was not required when the sentencing court gave the defendant the benefit of her plea bargain, exposing her to a shorter total period of punishment. We held that:

“At the time defendant pleaded guilty, she did not possess all the information necessary for an informed choice among different possible courses of action because she was not told that she would be subject to mandatory postrelease supervision as a consequence of her guilty plea. Accordingly, defendant’s decision to plead guilty cannot be said to have been knowing, voluntary and intelligent” (id. at 746).

In effect, the Court rejected harmless error analysis by requiring vacatur of defendant’s guilty plea (see also People v Goss, 286 AD2d 180, 184 [3d Dept 2001] [“as defendant never knowingly agreed to the five-year postrelease period of supervision to follow his 12-year determinate sentence, we reject the People’s argument that the error in not disclosing this portion of the sentence to defendant is harmless”]).

Similarly, in People v Louree (8 NY3d 541, 545 [2007]), we held it “irrelevant that the prison sentence added to postrelease supervision is within the range of prison time promised at the allocution.” Harmless error doctrine is inapposite when analyzing remedies for Catu errors (see People v Coles, 62 NY2d 908, 910 [1984] [“harmless error rules were designed to review trial verdicts and are difficult to apply to guilty pleas”]).

Here, at the time of his plea, defendant was not informed that a period of postrelease supervision would follow his term of incarceration. Thus, defendant did not possess the requisite information knowingly to waive his rights and must be permitted to withdraw his plea. That the trial court ultimately resentenced defendant to a total period of incarceration (I2V2 years) plus postrelease supervision (2V2 years) equal to his originally promised sentence of incarceration does not change this conclusion.

The dissent incorrectly believes that Catu and Van Deusen turned on the question whether “the defendant got the full benefit of her plea bargain” (dissenting op at 194); thus, the dissent attempts to undo the prejudice of defendant’s involuntary guilty plea. Rather, Catu, Van Deusen and Louree made clear that the courts violated the defendant’s due process rights—not the defendant’s sentencing expectations. Therefore, we vacated the defendants’ involuntary guilty pleas to remedy the constitutional violations. Here, we are constrained to give the same relief, exposing defendant to the full penalty of at least a 25-year prison term.

Accordingly, the order of the Appellate Division should be reversed, defendant’s plea vacated and the case remitted to Supreme Court for further proceedings on the indictment.

Pigott, J. (dissenting).

I respectfully dissent and would affirm the order of the Appellate Division. A grand jury charged defendant in a 32-count indictment with raping, sodomizing, and sexually abusing his daughter. A jury trial commenced on April 22, 2002, at which defendant’s daughter, then 16, was the first to testify. She recounted for the jury in detail over several hours how defendant raped and abused her over a six-year period, beginning in 1994, when she was nine years old. Following the daughter’s direct-examination testimony, defendant informed the court that he wished to plead guilty to the top count of the indictment, first-degree rape, in full satisfaction of the charges. Defendant admitted that his daughter’s direct-examination testimony was true, and specifically, that he had forced her to have sex with him since she was nine years old. The court accepted defendant’s plea and informed him that he would serve a prison sentence of 15 years. It is undisputed that no mention was made of any mandatory postrelease supervision. At sentencing, the court imposed the negotiated 15-year prison sentence.

In March 2004, approximately two years later, defendant challenged his judgment of conviction, arguing that his plea was involuntary because he had not been informed that his prison sentence carried a five-year period of postrelease supervision. Following proceedings before Supreme Court, defendant’s sentence was modified to a term of I2V2 years in prison and 2Va years of postrelease supervision. The Appellate Division, with two Justices dissenting, affirmed defendant’s modified sentence.

This Court has consistently held that a court’s “failure or inability to fulfill a [sentencing] promise requires either that the plea of guilty be vacated or the promise fulfilled, but there is no indicated preference for one course over the other. The choice rests in the discretion of the sentencing court” (People v Selikoff, 35 NY2d 227, 239 [1974], cert denied 419 US 1122 [1975]). Indeed, a trial court may have good reason to choose specific performance over a defendant’s request to withdraw his plea. For instance, when years have passed since the original plea, making it difficult for the People to proceed to trial, allowing vacatur of the plea would afford the defendant “more than he [is] entitled” (id. at 240). For that reason, “the State can hold a defendant to an agreed sentence rather than allow vacat[ur] of the plea when it would otherwise be prejudiced” (People v McConnell, 49 NY2d 340, 349 [1980]; see People v Esposito, 32 NY2d 921, 923 [1973]).

Contrary to the majority’s position, I find nothing in our prior precedent that requires a vacatur of defendant’s plea as the only possible remedy for the Catu error. In People v Catu (4 NY3d 242 [2005]) and People v Van Deusen (7 NY3d 744 [2006]), specific performance was not a viable option, so this Court had no occasion to address the issue. In that regard, in Catu, defendant pleaded guilty in exchange for the statutory minimum sentence (4 NY3d at 244). Because defendant had already received the minimum sentence, vacatur of the defendant’s plea was the only possible remedy for the error. In Van Deusen, the defendant was misinformed about the possible sentencing range; she believed that the range was not less than five years or no more than 15 years in prison (7 NY3d at 745). The court modified the sentence to eight years’ imprisonment and five years of postrelease supervision, but that sentence was more than the least amount of incarceration time she could have hoped to get at the time of her plea (id.). Thus, it could not be said with assurance in Van Deusen that the defendant got the full benefit of her plea bargain. Similarly, in People v Louree (8 NY3d 541 [2007]), the sole issue before this Court was whether the defendant was required to preserve for appellate review his complaint of the Catu error.

Here, the trial court chose the remedy of specific performance, which in my view, it had the authority to do. At the time of his plea, defendant was promised a sentence of 15 years in prison. After the trial court’s modification, defendant received the full benefit of his bargain, plus a windfall. Thus, unlike in Catu and Van Deusen, the modified sentence comported with the understanding and expectations of defendant at the time of his guilty plea. Finally, the trial court here had good reason to choose the remedy of specific performance over vacatur of the plea. Specifically, the People would be severely prejudiced if defendant’s daughter was subjected to testifying once again at a new trial after several years have passed.

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

Order reversed, etc.

      . People v Selikoff (35 NY2d 227 [1974]) does not warrant a different result (dissenting op at 194). There, the court, at sentencing, refused to fulfill the promised sentence because the court had learned, between the plea and the sentencing date, that defendant was the principal and not merely a pawn in a fraudulent scheme. Defendant never challenged the voluntariness of his plea and refused to withdraw it. When, at the time of a plea, a defendant possesses the requisite information to make an informed choice, the defendant’s guilty plea is voluntary, so either the plea’s vacatur or specific performance of the promise is appropriate. A Catu error, by contrast, affects the voluntariness of defendant’s guilty plea, and thus makes vacatur the appropriate remedy.

      . Defendant urges that, despite the mathematics, the sentence—because it adds postrelease supervision to incarceration—is not in any event equivalent to the promised sentence. Moreover, he could, in fact, face more incarceration under the new sentence than under the agreed-to sentence. If he violated the postrelease supervision conditions within six months of the postrelease supervision term’s end, he could receive an additional six months’ incarceration beyond the term of postrelease supervision (see Penal Law § 70.45 [5]).


author: Graffeo, J.

text:
    [878 NE2d 583, 848 NYS2d 1]
    Nicholas Raffellini, Respondent, v State Farm Mutual Automobile Insurance Company, Appellant.
    Argued October 9, 2007;
    decided November 15, 2007

      POINTS OF COUNSEL

      Rivkin Radler LLP, Uniondale (Harris J. Zakarin and Evan H. Krinick of counsel), and Picciano & Scahill for appellant.
    I. The plain and unambiguous language of Insurance Law § 3420 (í) (1) and (2) requires an insured to establish the existence of a “serious injury” before payment will be made for either uninsured motorist benefits or supplementary uninsured motorist benefits. (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; Leader v Maroney, Ponzini & Spencer, 97 NY2d 95; Matter of Charter Dev. Co., L.L.C. v City of Buffalo, 6 NY3d 578; Matter of Tall Trees Constr. Corp. v Zoning Bd. of Appeals of Town of Huntington, 97 NY2d 86; Matter of Notre Dame Leasing v Rosario, 2 NY3d 459; People v Mobil Oil Corp., 48 NY2d 192; Matter of State Farm Mut. Auto. Ins. Co. v Amato, 72 NY2d 288; Matter of Allstate Ins. Co. v Shaw, 52 NY2d 818; Cohen v Lord, Day & Lord, 75 NY2d 95; Criscione v City of New York, 97 NY2d 152.) II. The legislative history, Insurance Department regulation and case law all support the interpretation of the statute that requires an insured to demonstrate a “serious injury” before payment will be made for either uninsured motorist benefits or supplementary uninsured motorist benefits. (Matter of Federal Ins. Co. v Watnick, 80 NY2d 539; Rowell v Utica Mut. Ins. Co., 77 NY2d 636; Matter of Country-Wide Ins. Co. v Wagoner, 45 NY2d 581; Matter of Allstate Ins. Co. v Shaw, 52 NY2d 818; Fox v Atlantic Mut. Ins. Co., 132 AD2d 17; Matter of Metropolitan Prop. & Cas. Ins. Co. v Mancuso, 93 NY2d 487; Reichel v Government Empls. Ins. Co., 66 NY2d 1000; Matter of Utica Mut. Ins. Co. [Hurd], 221 AD2d 903; Matter of Prudential Prop. & Cas. Co. v Szeli, 83 NY2d 681; Walton v Lumbermens Mut. Cas. Co., 88 NY2d 211.)

      Michael A. Forzano, Brooklyn, for respondent.
    I. By the plain and unambiguous language of Insurance Law § 3420 (f) (2), an insured need not establish a “serious injury” as a prerequisite to obtaining benefits under his supplementary uninsured motorist coverage. II. The legislative history, intent, and purpose behind the no-fault legislation, as well as the existing case law, is in no way affected or contravened by the Appellate Division decision, and it is consistent therewith. (Matter of Country-Wide Ins. Co. v Wagoner, 45 NY2d 581; Walton v Lumbermens Mut. Cas. Co., 88 NY2d 211; Matter of Metropolitan Prop. & Cas. Ins. Co. v Mancuso, 93 NY2d 487; Murray v Hartford, 23 AD3d 629; Brathwaite v New York Cent. Mut. Fire Ins. Co., 13 AD3d 405; Matter of Allstate Ins. Co. v Torre, 264 AD2d 477; Matter of Gravenese v Allstate Ins. Co., 245 AD2d 507; Bilodeau-Redeye v Preferred Mut. Ins. Co., 38 AD3d 1277; Matter of New York Cent. Mut. Fire Ins. Co. [Guarino], 11 AD3d 909; Brown v Travelers Ins. Co., 4 AD3d 835.) III. To the extent that Insurance Department Regulation 35-D requires an insured to establish a “serious injury” as a prerequisite to coverage under the supplementary uninsured motorist provision of the policy, it runs counter to the clear wording of the statute and should not be followed. (Hae Sup Kim v General Acc. Fire & Life Ins. Co., 171 AD2d 404; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451.)

      Pollack, Pollack, Isaac & DeCicco, New York City (Brian J. Isaac of counsel), for New York State Trial Lawyers’ Association, amicus curiae.
    The serious injury threshold defense may not be raised in a case seeking supplementary uninsured motorist benefits. (Montgomery v Daniels, 38 NY2d 41; Walton v Lumbermens Mut. Cas. Co., 88 NY2d 211; Matter of Lloyd [Motor Veh. Acc. Indem. Corp.], 23 NY2d 478; Matter of Metropolitan Prop. & Cas. Ins. Co. v Mancuso, 93 NY2d 487; Reichel v Government Empls. Ins. Co., 66 NY2d 1000; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451.)

      Pastel & Rosen, LLP, Albany (Robert S. Pastel of counsel), for New York Insurance Association, Inc., amicus curiae.
    Serious injury is required to recover supplementary uninsured motorist benefits. (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Matter of O’Neill [Patriot Gen. Ins. Co.], 202 AD2d 178; Brown v Travelers Ins. Co., 4 AD3d 835; Murphy v New York Cent. Mut. Fire Ins. Co., 307 AD2d 689; Murray v Hartford, 23 AD3d 629; Brathwaite v New York Cent. Mut. Fire Ins. Co., 13 AD3d 405; Matter of Allstate Ins. Co. v Torre, 264 AD2d 477; Pommells v Perez, 4 NY3d 566.)
   OPINION OF THE COURT

Graffeo, J.

The issue in this case is whether a “serious injury” exclusion in a supplementary uninsured/underinsured motorist endorsement to an automobile liability policy is enforceable. We conclude that it is.

In April 1998, plaintiff Nicholas Raffellini suffered back injuries when his vehicle was struck by a car that had driven through a red traffic light. Plaintiff’s medical expenses and other basic economic loss damages were paid through no-fault insurance. He then pursued recovery for his pain and suffering from the driver of the car that caused the accident. The driver’s insurance carrier agreed to pay plaintiff a settlement of $25,000—the limit of coverage under that policy. Plaintiffs own insurer, defendant State Farm Mutual Automobile Insurance Company, did not object to the settlement.

After he received the $25,000 settlement payment, plaintiff demanded that State Farm pay him $75,000 in pain and suffering damages under the supplementary uninsured/underinsured motorist (SUM) endorsement, a component of plaintiffs policy that provided up to $100,000 in coverage. When State Farm refused the demand, plaintiff commenced this breach of contract action. State Farm answered the complaint and asserted, among other defenses, that plaintiff could not recover under the SUM endorsement because he “did not sustain serious injury” and his exclusive remedy was, therefore, the receipt of no-fault benefits.

Plaintiff moved to strike the serious injury defense from State Farm’s answer, claiming that Insurance Law § 3420 (f) (2), which addresses SUM benefits, does not impose serious injury as a condition precedent to recovery. State Farm countered that Insurance Law § 3420 (f) (2) must be read in tandem with Insurance Law § 3420 (f) (1), which contains a serious injury requirement for uninsured motorist benefits. The insurer further submitted that an Insurance Department regulation, Regulation 35-D, requires that SUM recovery be conditioned on a finding of serious injury.

Supreme Court granted plaintiffs motion to strike State Farm’s serious injury defense on the basis that Insurance Law § 3420 (f) (2) does not reference a serious injury exclusion and Regulation 35-D is inconsistent with the statute. The Appellate Division affirmed and granted State Farm’s motion for leave to appeal to this Court, certifying the question: “Was the opinion and order of this court dated October 24, 2006, properly made?” We answer this question in the negative and reverse the order of the Appellate Division, thereby reinstating State Farm’s serious injury defense.

The controversy concerning application of a serious injury requirement in these circumstances stems from the statutory framework. Insurance Law § 3420 (f) (1) mandates that insurers provide uninsured motorist coverage in every New York motor vehicle liability policy. The payment of mandatory uninsured motorist benefits is conditioned on a finding that the insured suffered a serious injury as defined in Insurance Law § 5102 (d). Section 3420 (f) (1) states: “No payment for non-economic loss shall be made under such policy provision to a covered person unless such person has incurred a serious injury, as such terms are defined in” the No-Fault Law.

Insurance Law § 3420 (f) (2) (A) addresses additional, optional personal injury coverage that can be purchased by a policyholder: “Any such policy shall, at the option of the insured, also provide supplementary uninsured/underinsured motorists insurance for bodily injury, in an amount up to the bodily injury liability insurance limits of coverage provided under such policy . . . .” Under this statute, the coverage is not triggered unless “the limits of liability of all bodily injury liability bonds or insurance policies applicable at the time of the accident shall be exhausted by payment of judgments or settlements” (Insurance Law § 3420 [f] [2] [A]). Unlike subsection (f) (1), subsection (f) (2) is silent as to whether an insured must prove serious injury in order to receive supplementary benefits. Plaintiff contends that, by referencing serious injury in subsection (f) (1) and not subsection (f) (2), the Legislature permitted insurers to condition recovery of mandatory uninsured motorist benefits on the existence of a serious injury but intended to preclude them from conditioning recovery of supplementary benefits on such a finding.

Plaintiff’s argument runs contrary to the interpretation of the Superintendent of Insurance expressed in Regulation 35-D, codified at 11 NYCRR subpart 60-2. Regulation 35-D was promulgated in 1992 “to interpret section 3420 (f) (2) of the Insurance Law, in light of ensuing judicial rulings and experience, by establishing a standard form for SUM coverage, in order to eliminate ambiguity, minimize confusion and maximize its utility” (11 NYCRR 60-2.0 [c]). The regulation requires that “[e]very SUM endorsement issued shall be the Supplementary Uninsured/Underinsured Motorists Endorsement prescribed by subdivision (f) of this section” (11 NYCRR 60-2.3 [c]). Subdivision (f) sets forth the precise language insurers are to use in the endorsement, including an “EXCLUSIONS” section which reads: “This SUM coverage does not apply . . . for non-economic loss, resulting from bodily injury to an insured and arising from an accident in New York State, unless the insured has sustained serious injury as defined in Section 5102 (d) of the New York Insurance Law” (11 NYCRR 60-2.3 [f] [EXCLUSIONS] [3]). State Farm asserts that it incorporated the form language in the SUM endorsement it issued to plaintiff, as it was required to do.

It is well settled that the Legislature may authorize an administrative agency “to fill in the interstices in the legislative product by prescribing rules and regulations consistent with the enabling legislation” (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 865 [2003], quoting Matter of Nicholas v Kahn, 47 NY2d 24, 31 [1979]). “In so doing, an agency can adopt regulations that go beyond the text of that legislation, provided they are not inconsistent with the statutory language or its underlying purposes” (Matter of General Elec. Capital Corp. v New York State Div. of Tax Appeals, Tax Appeals Trib., 2 NY3d 249, 254 [2004]). A duly promulgated regulation that meets these criteria has the force of law.

We have previously recognized that the Legislature has vested the Superintendent of Insurance with “broad power to interpret, clarify, and implement the legislative policy” by promulgating regulations (Medical Socy., 100 NY2d at 863-864, quoting Ostrer v Schenck, 41 NY2d 782, 785 [1977]) and has directed the Superintendent to “prescribe forms” {see Insurance Law § 301 [b]). Thus, in Medical Society, where the Superintendent’s power to adopt regulations imposing strict time requirements on the filing of no-fault claims was challenged, this Court found the regulations valid, even though the No-Fault Law itself is silent on the question of time periods. We noted that the time frames, intended to combat an escalating fraud problem, were consistent with the policy underlying the No-Fault Law—to provide prompt compensation to legitimate claimants. In other contexts, we have relied on the Superintendent’s interpretation of New York insurance law, expressed in Regulation 35-D, as “persuasive authority” (see Matter of Allstate Ins. Co. [Stolarz— New Jersey Mfrs. Ins. Co.], 81 NY2d 219, 224 [1993]) and we have specifically cited Regulation 35-D when identifying the exclusions authorized for uninsured/underinsured motorist benefits (see Matter of Liberty Mut. Ins. Co. [Hogan], 82 NY2d 57, 60 [1993]).

Plaintiff argues that, insofar as Regulation 35-D imposes a serious injury requirement on the recovery of supplementary benefits, it is inconsistent with Insurance Law § 3420 (f) (2) and is therefore unenforceable. There is no question that “if [a] regulation runs counter to the clear wording of a statutory provision, it should not be accorded any weight” (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459 [1980] [citation omitted]). But in this case, the relevant statutory provision and the regulation are not contradictory. Insurance Law § 3420 (f) (2) is silent on the issue of whether an insured can recover SUM benefits absent a serious injury and that silence does not, in this case, imply that the Legislature intended to permit such recovery.

The legislative history of the relevant provisions refutes the argument that, by placing the serious injury exclusion in the mandatory benefits provision but not the supplementary benefits provision, the Legislature intended to preclude the Superintendent from authorizing application of a serious injury exclusion for supplementary benefits. Before uninsured motorist coverage was developed almost 50 years ago, it was not uncommon for a person injured in a motor vehicle accident by an uninsured tortfeasor to be unable to recover any damages. To redress this problem, in 1958 the Legislature created the Motor Vehicle Accident Indemnification Corporation to provide compensation for individuals injured by uninsured motorists, whether or not the injured individuals possessed automobile insurance themselves (L 1958, ch 759; see Matter of Lloyd [Motor Veh. Acc. Indem. Corp.], 23 NY2d 478 [1969]). At the same time, legislation was passed requiring the inclusion of mandatory uninsured motorist coverage in every automobile liability policy issued in New York (L 1958, ch 759, § 4). “The primary objective of this legislation was to afford the innocent victims of uninsured motorists the same protection available to victims of insured motorists with respect to their relative ability to obtain compensation for losses sustained in an automobile accident” (Fox v Atlantic Mut. Ins. Co., 132 AD2d 17, 21 [2d Dept 1987]). The Legislature’s mandatory uninsured motorist coverage provision—the predecessor to Insurance Law § 3420 (f) (1)—was codified at Insurance Law § 167 (2-a).

Mandatory uninsured motorist coverage therefore significantly predated the No-Fault Law, which was not enacted until 1973 (L 1973, ch 13). The No-Fault Law changed the legal landscape by imposing a distinction between basic economic loss (primarily medical expenses and lost wages up to $50,000), which would be covered regardless of fault in an accident, and noneconomic loss (pain and suffering), recoverable only through a personal injury claim against a tortfeasor responsible for the injuries (Insurance Law § 5102 [a], [b], [c]). As to the latter, the No-Fault Law required that injured parties be precluded from pursuing personal injury claims unless they suffered a “serious injury” (Insurance Law § 5104 [a]).

In 1977, the Legislature amended the mandatory uninsured motorist benefits statute—Insurance Law § 167 (2-a)—to clarify that the recovery available under this coverage was not to be diminished by an insurer’s payment of no-fault benefits (L 1977, ch 892, § 3). At the same time, the Legislature added a new paragraph to section 167 (2-a) establishing supplementary uninsured/underinsured motorist coverage. This new paragraph—the predecessor to Insurance Law § 3420 (f) (2)—gave an insured the option of purchasing additional uninsured motorist coverage beyond the mandatory minimum as well as “underinsurance” coverage to guard against the possibility of injury by a tortfeasor who was insured but in an amount insufficient to fully compensate the injured party. The newly-added second paragraph read as a continuation of the first, providing that “[a]ny such policy shall, at the option of the insured, also provide supplementary uninsured motorists insurance . . . .” (L 1977, ch 892, § 3 [emphasis added].) As is the case with mandatory benefits, the purpose of supplementary benefits was “to provide the insured with the same level of protection he or she would provide to others were the insured a tortfeasor in a bodily injury accident” (Matter of Prudential Prop. & Cas. Co. v Szeli, 83 NY2d 681, 687 [1994]). Rather than characterizing supplementary benefits as a distinct type of coverage, our Court has viewed underinsured motorist coverage as an extension of uninsured motorist coverage:

“The statutory allowance for supplementary uninsured motorists insurance coverage expands the ‘uninsured motorist’ category to include one who, while maintaining proof of financial responsibility as required by law, and thus being an ‘insured motorist’, nevertheless may be considered an ‘uninsured motorist’ because he is ‘underinsured’ when compared to the coverage of an insured who has exercised the option to purchase supplementary insurance” (Reichel v Government Empls. Ins. Co., 66 NY2d 1000, 1003 [1985]).

The serious injury exclusion at the heart of this dispute was added to the statutory scheme in 1981 (L 1981, ch 435) when mandatory and supplementary benefits were still addressed in adjoining paragraphs of the same subdivision— Insurance Law § 167 (2-a). The Legislature inserted the serious injury language in the first paragraph—the mandatory coverage portion—of that subdivision. But there is no indication in the legislative history of the amendment that the Legislature decided to apply a serious injury exclusion solely to mandatory coverage and not to supplementary benefits. Because both paragraphs of section 167 (2-a) related to uninsured motorist benefits and supplementary coverage was framed as an extension of the mandatory coverage outlined in the first paragraph, the exclusion can reasonably be viewed as having been intended to apply to both categories of benefits. Based on the structure of section 167 (2-a), we cannot say that the Legislature’s failure to restate the serious injury provision in the second paragraph evinced an intent to preclude application of such an exclusion to supplementary benefits.

It was not until 1984, when the Insurance Law was recodified and renumbered in its entirety (L 1984, ch 367), that the two paragraphs were separated into two subsections, resulting in the placement of the serious injury exclusion in Insuranee Law § 3420 (f) (1) and not in Insurance Law § 3420 (f) (2). This recodification was not meant to effect a substantive change in the law—certainly, there is no reason to conclude that the Legislature split the two paragraphs into separate subsections to create a distinction between the two types of coverages that did not already exist. Given this legislative evolution, we are unpersuaded that the placement of the serious injury exclusion in Insurance Law § 3420 (f) (1) but not section 3420 (f) (2) reflects a legislative determination to restrict the serious injury exclusion to mandatory benefits.

Indeed, as the Superintendent apparently concluded, such a distinction would not be consistent with the policy underlying supplementary benefits, which are designed to give insureds the same level of protection that would have been available to others under the policy if the insureds were the tortfeasors who caused personal injuries. When an insured injures someone in a motor vehicle accident, the injured party is subject to the serious injury requirement in the No-Fault Law and cannot sue for noneconomic loss unless the serious injury threshold is met (see Insurance Law § 5104 [a]). Since the purpose of supplementary coverage is to extend to the insured the same level of coverage provided to an injured third party under the policy, the insured must also meet the serious injury requirement before entitlement to supplementary benefits. If this were not the case, the insured would receive coverage more comprehensive than that available to a third party injured by the insured.

It is evident from the facts of this case that the application of the serious injury exclusion is consistent with the policy supporting supplementary benefits. Here, plaintiff received payment for his basic economic loss through no-fault benefits. When he sued the negligent party who caused the collision, he was seeking recovery for noneconomic loss. Having obtained the $25,000 limit of coverage from the negligent driver’s insurer, he then sought additional noneconomic loss damages under the SUM endorsement to his State Farm insurance policy. Since a third party injured as a result of plaintiffs negligence would have had to demonstrate serious injury to obtain noneconomic loss damages under plaintiffs policy, it follows that plaintiff himself must prove serious injury to recover under his SUM endorsement—as Regulation 35-D requires. State Farm is therefore entitled to pursue its serious injury defense.

Accordingly, the order of the Appellate Division should be reversed, with costs, plaintiffs motion to strike defendant’s fifth affirmative defense denied, and the certified question answered in the negative.

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

Order reversed, etc.

       "'Serious injury' means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment" (Insurance Law § 5102 [d]).


author: Jones, J.

text:
    [879 NE2d 140, 849 NYS2d 1]
    Owen F. Burns III et al., Appellants, v James R. Varriale Jr., Defendant, and St. Paul/Travelers Insurance Company, Respondent. (And a Related Proceeding.)
    Argued September 4, 2007;
    decided October 11, 2007

      POINTS OF COUNSEL

      O’Connell and Aronowitz, Albany (Cornelius D. Murray and Robyn B. Nicoll of counsel), for appellants.
    I. The Appellate Division applied an erroneous standard of law in reversing the trial court’s exercise of discretion in equitably apportioning attorneys’ fees pursuant to Workers’ Compensation Law § 29. (Becker v Huss Co., 43 NY2d 527; Smith v Spinoccia, 119 AD2d 660; Matter of Wolfe v Sibley, Lindsay & Curr Co., 36 NY2d 505; Matter of Heitz v Ruppert, 218 NY 148; Matter of Illaqua v BarrLlewellyn Buick Co., 81 AD2d 708; Matter of Kelly v State Ins. Fund, 60 NY2d 131; Matter of Briggs v Kansas City Fire & Mar. Ins. Co., 121 AD2d 810; Matter of McKee v Sithe Independence Power Partners, 281 AD2d 891; Matter of Leeber v LILCO, 29 AD3d 1198; Matter of Tipping v National Surface Cleaning Mgt., Inc., 29 AD3d 1200.) II. The Appellate Division usurped its authority by, in effect, rewriting the statute so as to empower the Workers’ Compensation Board, rather than the court, to apportion legal fees. (Matter of Hunter, 4 NY3d 260.)

      Sullivan Cunningham Keenan Mraz Oliver & Violando, LLP, Albany (Michael D. Violando of counsel), for James R. Varriale, Jr., and another, defendant and respondent.
    I. The Appellate Division’s decision finding it too speculative to determine the value of future benefits in this case where the claimant has a nonschedule permanent partial disability was in all respects proper, supported by case law and should not be disturbed. (Matter of Kelly v State Ins. Fund, 60 NY2d 131; Becker v Huss Co., 43 NY2d 527; Matter of Briggs v Kansas City Fire & Mar. Ins. Co., 121 AD2d 810; O’Connor v Lee Hy Paving Corp., 480 F Supp 716; Castleberry v Hudson Val. Asphalt Corp., 70 AD2d 228; Wood v Firestone Tire & Rubber Co., 123 Misc 2d 812; Matter of Di Meglio v Hartford Ins. Co., 116 Misc 2d 191; Matter of McKee v Sithe Independence Power Partners, 281 AD2d 891; Matter of Meisner v United Parcel Serv., 243 AD2d 128, 93 NY2d 848, 94 NY2d 757; Matter of Rothe v United Med. Assoc., 18 AD3d 1093.) II. The Appellate Division’s dicta did not illegally transfer powers of the court to the Workers’ Compensation Board. (Matter of Kelly v State Ins. Fund, 60 NY2d 131.)

      Melissa A. Day, New York City, and Steven M. Licht for Special Funds Conservation Committee, respondent.
    I. When the Workers’ Compensation Board has classified an injured worker as having a permanent partial disability, the present day value of the future benefit to the carriers cannot be calculated without speculation as the rate and the duration of the benefits are susceptible to change. (Matter of Curtin v City of New York, 287 NY 338; Matter of Briggs v Kansas City Fire & Mar. Ins. Co., 121 AD2d 810; Matter of Kelly v State Ins. Fund, 60 NY2d 131; Matter of McKee v Sithe Independence Power Partners, 281 AD2d 891; Matter of Thompson v Saucke Bros. Constr. Co., 2 AD3d 993; Matter of Coneys v New York City Dept. of Mental Health, 299 AD2d 602.) II. The most equitable method for having a carrier pay its costs associated with its total benefit as required by Matter of Kelly v State Ins. Fund (60 NY2d 131 [1983]) is through payment of the costs associated with the benefit as it is realized. (Matter of Andersen v New York Hosp., 5 AD2d 730.) III. This case is a perfect example of why it is fhtile to speculate about the present day value of the carriers’ future obligation when the claimant has been classified as having a permanent partial disability.

      Grey & Grey, LLP, Farmingdale (Robert E. Grey of counsel), for Injured Workers’ Bar Association, amicus curiae.
    I. The decision of the Appellate Division, Third Department is contrary to settled law regarding the applicability of the Court of Appeals decision in Matter of Kelly v State Ins. Fund (60 NY2d 131 [1983]). (Becker v Huss Co., 43 NY2d 527; Smith v Spinoccia, 119 AD2d 660; Matter of Briggs v Kansas City Fire & Mar. Ins. Co., 121 AD2d 810; Matter of Theresa M.C. v Utilities Mut. Ins. Co., 207 AD2d 481; Matter of McKee v Sithe Independence Power Partners, 281 AD2d 891; McComber v Lehrer McGovern Bovis, Inc., 28 AD3d 402; Martin v Agway Petroleum Corp., 161 AD2d 1129.) II. The Third Department’s reliance on “voluntary withdrawal” cases in finding permanent partial disability awards too speculative to support the application of Matter of Kelly v State Ins. Fund (60 NY2d 131 [1983]) is incorrect as a matter of law. (Matter of Dudlo v Polytherm Plastics, 125 AD2d 792; Matter of Topf v American Character Doll & Toy Co., 62 AD2d 1111; Matter of Regulbuto v Carrier Corp., 158 AD2d 817; Matter of O’Connell v New York State Workmen’s Compensation Bd., 14 AD2d 945; Matter of Gugino v New York State Workmen’s Compensation Bd., 31 AD2d 698; Matter of Mazziotto v Brookfield Constr. Co., 40 AD2d 245; Matter of Roberts v General Elec. Co., 6 AD2d 43; Matter of Elwood v K-Mart Corp., 289 AD2d 794; Matter of Camarda v New York Tel., 262 AD2d 816; Matter

      of Landi v Carrier Corp., 125 AD2d 789.) III. The decision of the Appellate Division, Third Department improperly and unnecessarily transfers the burden of adjudication from the courts to the Workers’ Compensation Board. (Matter of Kelly v State Ins. Fund, 60 NY2d 131; Becker v Huss Co., 43 NY2d 527.)
   OPINION OF THE COURT

Jones, J.

In this proceeding to extinguish a lien asserted pursuant to Workers’ Compensation Law § 29, we conclude, as did the Appellate Division, that the value of future workers’ compensation benefits for a claimant with a nonschedule permanent partial disability is speculative, that the present value of these benefits cannot be ascertained at the time claimant recovers damages in a third-party action, and that claimant is not entitled to an apportionment of attorney’s fees based on such future benefits.

Facts and Procedural History

In January 2000, claimant Owen Burns, then an 18-year veteran of the Town of Colonie Police Department, was employed as a traffic safety investigator earning an average weekly wage of $1,330, or $69,160 annually. On January 13, 2000, claimant, while on duty driving to an accident scene, was involved in a motor vehicle accident with James Varriale. As a result, claimant sustained a number of permanent injuries. On September 2, 2001, after a number of attempts to resume his duties, claimant, then 45 years old, was forced to retire. Although claimant has worked since his retirement, his earnings have decreased significantly.

Subsequently, the Workers’ Compensation Board classified claimant as permanently partially disabled and ordered St. Paul/ Travelers Insurance Company (the Town of Colonie’s workers’ compensation carrier) to pay claimant an ongoing maximum benefit of $400 per week. This benefit was based on claimant’s average weekly wage before the accident.

In June 2001, claimant (and his wife, derivatively) (plaintiffs) commenced a personal injury action against Varriale. After the completion of discovery and the filing of plaintiffs’ note of issue, a trial date was scheduled. Prior to trial, Varriale’s insurance company offered the full amount of his policy ($300,000) to settle the lawsuit. Travelers, which had asserted a lien against any recovery plaintiffs received, was required, under Workers’ Compensation Law § 29 (5), to consent to the proposed settlement before it could be finalized.

In November 2004, plaintiffs petitioned Supreme Court for an order (1) compelling Travelers to consent to the third-party settlement, (2) extinguishing Travelers’ lien because under Matter of Kelly v State Ins. Fund (60 NY2d 131 [1983]), Travelers’ equitable share of the attorney’s fees expended by plaintiffs in bringing the action and securing the settlement exceeded the amount of the lien by approximately $19,000 and (3) directing Travelers to pay plaintiffs this excess amount (referred to as “fresh money”).

In its opposition and cross motion to add the Special Funds Conservation Committee to the motion, Travelers consented to the third-party settlement, but reserved its right, under Workers’ Compensation Law § 29 (4), to take a credit against plaintiffs’ net recovery (i.e., the money received from settling the third-party action after deduction of the lien). Accordingly, Travelers would be relieved from paying future benefits until the credit is exhausted (i.e., during a “holiday” period). Travelers also asked Supreme Court to apply a portion of the settlement proceeds against its existing lien after the deduction of its pro rata share (34.82%), which represents the percentage of litigation costs and disbursements plaintiffs incurred in bringing the action compared to plaintiffs’ total recovery. At the time of the settlement, Travelers’ lien totaled $46,523.26. Further, Travelers sought an order (1) determining that the present value of estimated future compensation benefits cannot be reasonably ascertained because the value of any future benefits is necessarily speculative and (2) directing claimant to pay it $30,323.86, representing the value of its lien reduced by its equitable share of the costs plaintiffs incurred in legal fees and disbursements ($46,523.26 [value of lien] less $16,199.40 [34.82% of $46,523.26] = $30,323.86). In the alternative, Travelers argued that if the present value of estimated future compensation benefits could be ascertained, the Special Funds Conservation Committee should be directed to pay its pro rata share as it is responsible for the majority of litigation costs and disbursements.

Rejecting Travelers’ arguments, Supreme Court granted the relief plaintiffs requested. Specifically, the court extinguished Travelers’ lien and ordered Travelers to pay $18,960.92 in “fresh money” to plaintiffs, stating that

“[w]ith [claimant’s] limited employment and currently assessed future benefits, it is not speculative to calculate future benefits. Once weekly benefits can be ascertained, the worker’s compensation carrier ... is assessed an equitable apportionment of legal fees. This is so because the carrier benefits in two ways: by recouping past compensation and by [being relieved of] its future obligations to pay the weekly benefits.” (Citation omitted.)

The Appellate Division modified Supreme Court’s order by (1) reversing so much thereof as directed Travelers to pay plaintiffs $18,960.92 in “fresh money” and (2) directing plaintiffs to pay $30,323.86 to Travelers to represent the value of its lien reduced by its equitable share of the litigation costs, but otherwise affirmed the order. The court held that a claimant who receives a compensation award based on a permanent partial disability is not entitled to an immediate apportionment of attorney’s fees based on both the carrier’s recoupment of its lien and its relief from future compensation payments because, in this situation, the present value of future compensation benefits is speculative. In support of its holding, the court stated that “[w]hen a claimant has a permanent partial disability . . . neither the duration nor the amount of an award is readily predictable because the award may or may not continue for the rest of the claimant’s life and the weekly benefit of an award can change based upon the claimant’s actual earnings” (34 AD3d 59, 63 [2006]). The court further stated that a claimant is only entitled to an apportionment of attorney’s fees based upon the present value of future compensation benefits where the benefits are readily ascertainable, such as in cases involving death, permanent total disability or a schedule loss of use.

Finally, the court noted that claimant may periodically apply to the Board for further compensation benefits and, if claimant is entitled to a benefits award, the Board may direct further reimbursement of attorney’s fees; i.e., if the Board awards further compensation benefits to claimant during the carrier’s holiday, “the carrier will be required at that point to pay its equitable share of the cost of obtaining those benefits, which can no longer be deemed hypothetical or speculative, as those benefits accrue” {id, at 65). On plaintiffs’ appeal, we now affirm.

Discussion

It is well settled that “[Workers’ Compensation Law § 29] governs the rights and obligations of employees, their dependents, and compensation carriers with respect to actions arising out of injuries caused by third-party tort-feasors” (Matter of Kelly, 60 NY2d at 136; see Becker v Huss Co., 43 NY2d 527, 537 [1978]). Section 29 (1) provides, in part, that:

“If an employee entitled to compensation under this chapter be injured or killed by the negligence or wrong of another not in the same employ, such injured employee . . . may take such compensation and medical benefits and . . . pursue his remedy against such other [party] .... In such case, the . . . insurance carrier hable for the payment of such compensation . . . shall [—in order to prevent the employee from enjoying a double recovery—]have a lien on the proceeds of any recovery from such other [party] . . . after the deduction of the reasonable and necessary expenditures, including attorney’s fees, incurred in effecting such recovery, to the extent of the total amount of compensation awarded under or provided or estimated by this chapter .... Should the employee . . . secure a recovery from such other [party] . . . such employee . . . may apply on notice to such lienor to the court in which the third party action was instituted ... for an order apportioning the reasonable and necessary expenditures, including [attorney’s] fees, incurred in effecting such recovery. Such expenditures shall be equitably apportioned by the court between the employee . . . and the lienor.”

The purpose of this provision is to

“stem the inequity to the claimant[ ], arising when a carrier benefits from an employee’s recovery while assuming none of the costs incurred in obtaining the recovery, and to ensure that the claimant receives a full measure of the recovery proceeds in excess of the amount of statutory benefits otherwise due the claimant” (Matter of Kelly, 60 NY2d at 138).

Moreover, equitable apportionment by the court “was purposely adopted to avoid ‘rigid statutory formulas’ and to implement a ‘practical and flexible’ approach towards ensuring that a compensation carrier assumes its fair share of the costs of litigation” (id. [citations omitted]).

Workers’ Compensation Law § 29 (4) provides that the carrier is responsible for any deficiency between a claimant’s actual recovery, i.e., the amount actually collected, and the amount of the compensation provided or estimated under the Workers’ Compensation Law.

“[Section 29 (4)] has been construed to mean that in a deficiency case the amount ‘actually collected’ by the employee is the recovery proceeds remaining after deduction for litigation costs .... Therefore, the carrier assumes the entire cost of obtaining the recovery, as its responsibility to make payments is reduced only by the amount ‘actually collected’ by claimant” (Matter of Kelly, 60 NY2d at 138-139 [citation omitted]).

“The ultimate determination of the equitable apportionment of legal expenses . . . resides in the courts vested with the powers of fact finding and the exercise of a sound discretion” (Becker, 43 NY2d at 544). Whether, under the circumstances presented here, the value of future compensation benefits can be ascertained is a question of law subject to this Court’s review (see id.).

In Matter of Kelly, petitioner was awarded death benefits under Workers’ Compensation Law § 16 after her husband was killed in the course of his employment. After petitioner brought a wrongful death action and recovered $315,000, she applied to the Surrogate’s Court for an equitable distribution of the recovery proceeds between her and the compensation carrier. We held that a carrier’s equitable share of the litigation costs and disbursements incurred by a claimant must be apportioned based on the total benefit the carrier receives (see Matter of Kelly, 60 NY2d at 135, 140). Regarding the carrier’s total benefit, we noted that when a claimant recovers damages in a third-party action, a carrier benefits in two ways—i.e., the carrier recoups its lien (past benefits paid out to the claimant) and is relieved of its future obligation to make benefit payments to the claimant (due to its section 29 [4] credit) (id. at 135). In recognizing that the carrier’s future benefit must be taken into account, we stated that it “is not so speculative that it would be improper to estimate and to assess litigation costs against this benefit to the carrier” (Matter of Kelly, 60 NY2d at 139). From this statement it follows that if the carrier’s future benefit is speculative (i.e., it cannot be quantified or reliably predicted), it would not be appropriate for a court to apportion attorney’s fees based on such benefit.

Following the lead of Matter of Kelly, a number of courts, apportioning attorney’s fees based on a carrier’s future benefit, have held that if the value of such benefit cannot be quantified by actuarial or other reliable means, apportionment of fees based on that benefit is impermissible (see Matter of Briggs v Kansas City Fire & Mar. Ins. Co., 121 AD2d 810, 812 [3d Dept 1986]; Matter of McKee v Sithe Independence Power Partners, 281 AD2d 891 [4th Dept 2001]). Moreover, the Third and Fourth Departments have held that if a claimant does not receive benefits for death, total disability or schedule loss of use, the carrier’s future benefit cannot be quantified by actuarial or other reliable means (id.). We agree.

When an employee dies in the course of employment, the dependent spouse may be awarded weekly death benefits for life— payable at a rate that does not change—unless the spouse remarries (see Workers’ Compensation Law § 16). Further, the Board can determine the present value of future death benefits by using actuarial tables that take into account the dependent spouse’s life expectancy and the probability of remarriage. When an employee is classified as having a permanent total disability, there is no expectation that he or she will rejoin the work force. Accordingly, the compensation benefits awarded to such employee do not fluctuate and continue for the duration of the employee’s life, which can be reliably predicted using life expectancy tables (see Workers’ Compensation Law § 15 [1]). Finally, compensation awards for schedule loss of use, which pay an employee for lost earnings associated with the loss of use of a specific body part, are easily ascertainable because such awards are paid out over a specific number of weeks at a set rate (or in a lump sum) (see Workers’ Compensation Law § 15 [3]). Although there is a measure of uncertainty in all forecasts, a forecast of the future course of, and compensation payments resulting from, a permanent partial disability is substantially more uncertain than a comparable forecast in the cases discussed above.

If the Board determines that a workers’ compensation claimant has a permanent partial disability and that the claimant retired from his or her job due to that disability, an inference that his or her reduced future earnings resulted from the disability may be drawn. Claimant must demonstrate that his or her reduced earning capacity is due to the disability, not “age, general economic conditions or other factors unrelated to the disability” (Matter of Meisner v United Parcel Serv., 243 AD2d 128, 130 [3d Dept 1998]). The carrier can overcome the inference by offering proof that something other than the disability—e.g., voluntary withdrawal from the labor market—is the sole cause of claimant’s reduced earning capacity (see Matter of Leeber v LILCO, 29 AD3d 1198, 1199 [3d Dept 2006]; Matter of Tipping v National Surface Cleaning Mgt., Inc., 29 AD3d 1200, 1200-1201 [3d Dept 2006]; Matter of Rothe v United Med. Assoc., 18 AD3d 1093, 1094 [3d Dept 2005]). Thus, in a permanent partial disability case, whether a claimant has maintained a sufficient attachment to the labor market must be resolved by the Board in determining his or her reduced earning capacity and whether benefits should be awarded.

A claimant who demonstrates that his or her reduced earnings are related to the partial disability may receive a reduced earnings award (see Workers’ Compensation Law § 15 [3] [w]). The weekly rate for such award equals 662/s% of the difference between claimant’s average weekly wage prior to the disability and “his or her wage-earning capacity thereafter” (id.). “The wage earning capacity of an injured employee in cases of partial disability shall be determined by his [or her] actual earnings” during the period of the disability (Workers’ Compensation Law § 15 [5-a]; see also Matter of Matise v Munro Waterproofing Co., 293 NY 496, 500 [1944] [“where actual earnings during the period of the disability are established, wage earning capacity must be determined exclusively by the actual earnings of the injured employee without evidence of capacity to earn more or less during such disability period”]). Therefore, in addition to establishing a sufficient attachment to the labor market, a permanent partially disabled claimant who alleges that he or she works must provide the Board with proof of actual earnings after the work for a given period is performed.

Here, the Board’s determination that claimant has a permanent partied disability did not entitle him to weekly compensation benefits at a specific rate over his life or over a set period. Claimant has an ongoing obligation to demonstrate his continued attachment to the labor market and how much he actually earns. However, as these variables cannot be reliably predicted, the rate and duration of benefits awarded by the Board may change from one period to the next. Thus, at the time a permanently partially disabled claimant recovers damages in a third-party action, the value of future compensation benefits is speculative.

Even if the present value of the future benefits cannot be ascertained at the time of claimant’s recovery in a third-party action, the carrier should be required to periodically pay its equitable share of attorney’s fees and costs incurred by claimant in securing any continuous compensation benefits. We note that because the present value of future benefits in a permanent partial disability case is not ascertainable, the court cannot use these benefits for purposes of calculating the carrier’s equitable share of the claimant’s attorney’s fees and costs. This does not mean that the claimant must wait indefinitely for the carrier to pay its equitable share. The trial court, in the exercise of its discretion, can fashion a means of apportioning litigation costs as they accrue and monitoring (e.g., by court order or stipulation of the parties) how the carrier’s payments to the claimant are made. Thereby, the court can ensure that the payment of attorney’s fees by the carrier is based on an actual, nonspeculative benefit.

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

Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith and Pigott concur.

Order affirmed, with costs.

      . The Special Funds Conservation Committee maintains and defends the Special Disability Fund (see Workers’ Compensation Law § 15 [8]).

      . This figure is derived from Travelers’ total payments to claimant ($96,523.26 [$76,960 for indemnity benefits plus $19,563.26 for medical benefits]) less $50,000 it paid in lieu of first-party no-fault benefits.

      . By decision filed April 5, 2007, an Administrative Law Judge determined that for the period of November 3, 2004 to March 15, 2007, claimant had no legally compensable lost time or entitlement to benefit awards. In support of this determination, the Board found that “claimant has failed to demonstrate a sufficient attachment to the labor market to [warrant] further benefits.” An administrative appeal is pending.

      . Under Matter of Kelly, the carrier’s equitable share is calculated by (1) adding (a) the carrier’s lien and (b) the future payments the carrier is relieved from mating during the holiday period, and (2) multiplying the sum of those two figures by the percentage of litigation expenses claimant incurred compared to claimant’s total recovery. If the carrier’s equitable share is greater than its lien, it must pay the excess to claimant.

      . Although Matter of Briggs and Matter of McKee are factually distinguishable from the case at bar, the distinction is insignificant because these cases focus on (1) the character of the particular classification (i.e., whether the rate and duration of an award based on that classification can be quantified or predicted), and (2) whether, in light of the classification, the present value of future benefits can be accurately ascertained. Accordingly, these cases are helpful in resolving the case at bar.