author: Pigott, J. Rivera, J.

text:
    [24 NE3d 1064, 999 NYS2d 800]
    In the Matter of the Claim of Maureen Kigin, Appellant, v State of New York Workers’ Compensation Board et al., Respondents.
    Argued October 14, 2014;
    decided November 20, 2014

      POINTS OF COUNSEL

      Grey & Grey, L.L.P., Farmingdale (Robert E. Grey of counsel), for appellant.
    I. The Workers’ Compensation Board exceeded its statutory authority to preauthorize medical treatment by using the Medical Treatment Guidelines to also pre-deny medical treatment. (People v Graham, 55 NY2d 144; McCluskey v Cromwell, 11 NY 593; Matter of Waters v Taylor Co., 218 NY 248; Surace v Danna, 248 NY 18; Matter of Alonzo M. v New York City Dept. of Probation, 72 NY2d 662; Scott v Massachusetts Mut. Life Ins. Co., 86 NY2d 429; Matter of Magna v Hegeman Harris Co., 258 NY 82; People ex rel. Wallington Apts. v Miller, 288 NY 31; Matter of Balcerak v County of Nassau, 94 NY2d 253; Matter of Hoffman v Creedmoor State Hosp., 22 AD2d 736.) II. The Medical Treatment Guidelines conflict with the statute by improperly shifting the burden of proof regarding the need for medical treatment from the employer to the injured worker. (Matter of Weingarten v Pathmark Stores, 256 AD2d 648; Matter of Freitag v New York Times, 260 AD2d 748; Matter of Spinex Labs. [Patton], 213 AD2d 884.) III. The Medical Treatment Guidelines deny due process to injured workers. (Mathews v Eldridge, 424 US 319; New York Central R. Co. v White, 243 US 188; Board of Regents of State Colleges v Roth, 408 US 564.)

      Eric T. Schneiderman, Attorney General, Albany (Paul Groenwegen, Barbara D. Underwood and Andrew D. Bing of counsel), for State of New York Workers’ Compensation Board, respondent.
    I. The Workers’ Compensation Board had statutory authority to adopt regulations incorporating the Medical Treatment Guidelines. (Matter of Nicholas v Kahn, 47 NY2d 24; Matter of General Elec. Capital Corp. v New York State Div. of Tax Appeals, Tax Appeals Trib., 2 NY3d 249; Matter of KSLM-Columbus Apts., Inc. v New York State Div. of Hous. & Community Renewal, 5 NY3d 303; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Matter of Belmonte v Snashall, 2 NY3d 560; Crosby v State of N.Y., Workers’ Compensation Bd., 57 NY2d 305; Matter of Spinex Labs. [Patton], 213 AD2d 884; Matter of

      Smith v Albany County Sheriffs Dept., 82 AD3d 1334, 17 NY3d 770.) II. Requiring claimants to prove the medical necessity of care that is not authorized by the Medical Treatment Guidelines is consistent with the Workers’ Compensation Law. (Matter of Zamora v New York Neurologic Assoc., 19 NY3d 186; Matter of Malacarne v City of Yonkers Parking Auth., 41 NY2d 189; Matter of Miller v National Cabinet Co., 8 NY2d 277; Matter of Ayala v DRE Maintenance Corp., 238 AD2d 674; Matter of Dixon v State Univ. Coll., 283 AD2d 840; Keigher v General Elec. Co., 173 App Div 207; Matter of Magna v Hegeman Harris Co., 258 NY 82; Matter of Freitag v New York Times, 260 AD2d 748; Matter of Middleton v Coxsackie Correctional Facility, 38 NY2d 130; Matter of Philip M., 82 NY2d 238.) III. The regulations and Medical Treatment Guidelines do not deny due process to claimants. (Mathews v Eldridge, 424 US 319.)

      Steven M. Licht, Special Funds Conservation Committee, Albany (Jill B. Singer of counsel), for Special Funds Conservation Committee, respondent.
    I. The Workers’ Compensation Board has the authority to implement the Medical Treatment Guidelines predetermining medically necessary treatment. (Matter of Spinex Labs. [Patton], 213 AD2d 884; Matter of Casiano v CCIP/Union Settlement Home Care, 19 AD3d 719; Matter of Mitchell v William Stewart, Inc., 43 AD2d 616; Matter of Smith v Albany County Sheriffs Dept., 82 AD3d 1334; Matter of Estate of Lutz v Lakeside Beikirk Nursing Home, 301 AD2d 688; Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854; Matter of Nicholas v Kahn, 47 NY2d 24; Matter of Consolidated Edison Co. of N.Y. v Department of Envtl. Conservation, 71 NY2d 186.) II. The burden of proof has not shifted for medically necessary care. (Matter of Weingarten v Pathmark Stores, 256 AD2d 648; Matter of Freitag v New York Times, 260 AD2d 748.) III. The rules and regulations incorporating the Medical Treatment Guidelines do not violate an injured worker’s due process.
   OPINION OF THE COURT

Pigott, J.

The primary issue presented on this appeal is whether the Workers’ Compensation Board (the Board) exceeded its statutory authority when it promulgated portions of the “Medical Treatment Guidelines” {see 12 NYCRR 324.2 [a]-[f]). We hold that it did not and therefore affirm the Appellate Division.

I

In 2007, as part of its comprehensive reform of the Workers’ Compensation Law, the legislature amended Workers’ Compensation Law § 13-a (5) in two ways: (1) it raised from $500 to $1,000 the maximum cost of specialist treatments for which the employer is automatically liable without prior authorization, and (2) it directed that the Board issue and maintain a list of preauthorized procedures that a claimant can obtain at the employer’s expense even if the cost exceeds $1,000, without the need for the employer’s prior approval. The purpose of both of these provisions was to “remove impediments to prompt diagnostic and treatment measures and to better reflect current medical service costs. The provision permitting the creation of a pre-authorized list allows the Board appropriate regulatory flexibility to add or remove procedures depending on best practices, increases or decreases in costs, or opportunities presented by managed care approaches” (Governor’s Program Bill Mem No. 9, Bill Jacket, L 2007, ch 6 at 9).

A task force of credentialed medical professionals was assembled to develop and recommend a set of guidelines for the pre-authorized medical procedures. In 2010, the Board published proposed regulations, which incorporated by reference the guidelines recommended by the task force. Following the comment period, the Board adopted the “Medical Treatment Guidelines,” which were subsequently incorporated by reference in the regulations (see 12 NYCRR 324.2 [a]).

The Guidelines include the list of pre-authorized medical procedures and set forth limitations on the scope and duration of each procedure. They also set forth a variance procedure, under which medical treatment providers can, on behalf of a claimant, request authorization for medical care not included in the Guidelines or in excess of the scope and/or duration that is pre-authorized (see 12 NYCRR 324.3 [a] [1]). The medical treatment provider requesting a variance must demonstrate that the requested treatment is appropriate for the claimant and medically necessary (see id. § 324.3 [a] [2], [3] [i] [a]).

II

In December 1996, claimant Maureen Kigin, a Hearing Reporter for the Workers’ Compensation Board, injured her neck and back in a work-related automobile accident. In June 1997, the Board accepted her claim for wage replacement benefits and ongoing medical treatment. In 2006, Kigin’s case was reopened and transferred to the Special Fund for Reopened Cases (hereafter the carrier) pursuant to Workers’ Compensation Law § 25-a. On December 14, 2006, she was classified as permanently partially disabled.

Claimant alleges that she suffers chronic neck and back p'ain as a result of her injuries. Her treating physician, Dr. Andrea Coladner, prescribed acupuncture. On November 9, 2009, she received authorization from the carrier for acupuncture three times a week for six weeks.

In March 2011, Dr. Coladner reevaluated claimant and recommended that she receive additional acupuncture treatment, namely, three acupuncture treatments to her cervical and lumbar spine each month for six months. The doctor again requested authorization from the carrier, this time under the newly-created Medical Treatment Guidelines established by the Board that had become effective on December 1, 2010. Specifically, she requested two variances, one for claimant’s cervical spine and another for her lumbar spine. These variances were required because the Guidelines for the treatment of neck injuries provided that the optimum duration of acupuncture treatments is one month and the maximum duration is 10 treatments. Dr. Coladner opined that the treatments would increase flexibility, increase circulation, decrease headaches, decrease muscle tightness, and allow claimant to maintain function and activities of daily living.

In response to the variance requests, the carrier obtained an independent medical examination of claimant, conducted by Dr. Peter Chiu, a physician board-certified in physical medicine and rehabilitation and certified in acupuncture. Based on his examination, as well as his review of claimant’s medical records, Dr. Chiu determined that further acupuncture treatments were not medically necessary. Dr. Chiu noted that claimant’s subjective complaints of pain were not supported by objective findings, that she did not suffer from any disability, and that she could resume normal activity of daily living and her occupation without restriction.

Based on Dr. Chiu’s findings, the carrier denied the variance requests. Claimant thereafter sought review of the denial.

Dr. Coladner and Dr. Chiu testified as to whether the variances should be granted to allow the additional acupuncture treatment. Dr. Coladner testified that claimant had tried several different treatments and that acupuncture was the treatment modality that helped her maintain her functional level. Dr. Coladner averred that claimant reported a reduction in pain following the acupuncture treatments, although no improvement in her range of motion. Further, Dr. Coladner asserted that additional acupuncture treatments were recommended because, without them, claimant continued to report worsening pain and therefore diminished function.

Dr. Chiu testified that, in his opinion, the variances were properly denied because the requirements set forth in the Guidelines were not satisfied. Specifically, Dr. Chiu testified that Dr. Coladner’s medical records did not include claimant’s response to treatment or any improvement in her range of motion.

A Workers’ Compensation Law Judge determined that claimant’s medical provider failed to show that the additional acupuncture treatments were medically necessary. In particular, the Judge noted that, although Dr. Coladner testified that claimant reported some pain reduction from the prior treatments, there was no evidence in the record that these earlier treatments resulted in the objective improvement of functional outcomes with respect to claimant’s neck, or that it was reasonable to expect that further acupuncture would result in such improvement.

On claimant’s administrative appeal, the Workers’ Compensation Board panel affirmed the Workers’ Compensation Law Judge’s determination. The Board found that the variance applications failed to meet the burden of proof that the additional acupuncture treatment requested is medically necessary within the meaning of the Guidelines.

Ill

Claimant appealed the Board’s decision, arguing, as relevant here, that (1) the Board lacked the authority to promulgate the regulations and incorporated Guidelines, (2) the variance procedure improperly shifts the burden of proof to claimant’s physician to prove the medical necessity of a proposed treatment, and (3) the Guidelines violate claimant’s due process right to a meaningful hearing.

The Appellate Division, with one Justice dissenting, affirmed (109 AD3d 299 [3d Dept 2013]). The court rejected claimant’s argument that the Board exceeded its statutory authority in promulgating the regulations, holding that “the Board acted within its legislatively conferred authority when it devised a list of preapproved medical care deemed in advance to be medically necessary for specified conditions, and did so in a manner consistent with Workers’ Compensation Law § 13 (a) and the overall statutory scheme” (id. at 307). In support of its conclusion, the court noted that “medical necessity and appropriateness . . . have always been prerequisites to an employer’s obligation” to pay and “the Legislature purposefully conferred the authority on the Board to predetermine medical necessity for medical care, and its scope and duration, consistent with best medical practices” (id. at 306-307 [emphasis omitted]).

The court also rejected claimant’s argument that the variance procedure improperly shifts the burden to the claimant’s treating physician to prove medical necessity, in conflict with Workers’ Compensation Law § 21 (5) {see id. at 307-310). Finally, the court found unavailing claimant’s argument that the Guidelines deprived her of due process, noting that the regulations provide an opportunity to be heard, “an expedited process for determining the medical necessity” of the requested care, and a review process {id. at 310).

The dissenting Justice agreed with the majority’s conclusion that the “Board has authority to promulgate reasonable rules and regulations consistent with the Workers’ Compensation Law,” but disagreed with its “overreaching conclusion that medical treatments falling outside the Guidelines are predetermined and presumed not to be medically necessary” (id. at 312-313 [McCarthy, J., dissenting]). The dissent would have found that the variance procedure conflicts with the statutory scheme and specifically with section 21 (5) (see id. at 313-314). The dissent reasoned that the variance procedure “undermine[s] the remedial purpose of the Workers’ Compensation Law and [is] contrary to the legislative purpose behind authorizing the Board to promulgate [the] Guidelines” (id. at 315).

This Court granted claimant leave to appeal (22 NY3d 854 [2013]).

IV

Claimant first contends that the Board exceeded its statutory-authority to “preauthorize” medical treatment under Workers’ Compensation Law § 13-a (5) by using the Guidelines to “predeny” medical treatment. The Board responds that the Guidelines are a valid exercise of its broad regulatory authority because the regulations are rationally related to the underlying policies of the Workers’ Compensation Law.

The Board is authorized to “adopt reasonable rules consistent with and supplemental to the [Workers’ Compensation Law]” (Workers’ Compensation Law § 117 [1]). Courts will uphold regulations that have “a rationed basis and [are] not unreasonable, arbitrary, capricious or contrary to the statute under which [they were] promulgated” (see generally Kuppersmith v Dowling, 93 NY2d 90, 96 [1999]).

We hold that the Board acted properly and lawfully when it promulgated the Guidelines, as they reasonably supplement Workers’ Compensation Law § 13 and promote the overall statutory framework of the Workers’ Compensation Law, which is to provide appropriate medical care to injured workers. There is no dispute that the Board was statutorily authorized under section 13-a (5) to issue a list of pre-authorized procedures. That determination necessarily meant that the Board consider what is not best practice and what may not be medically necessary. Contrary to claimant’s contention, the procedures that are not on the list are not “pre-denied,” given the possibility of obtaining a variance. In other words, treatments that are not in accord with the Guidelines may nevertheless be approved for particular claimants pursuant to the variance procedure.

The establishment of the variance procedure was within the Board’s broad regulatory powers (Workers’ Compensation Law §§ 13, 141, 117 [1]). The Board explained that the prior lack of standards in assessing the medical necessity of treatment had resulted in “disputes over treatment, delayed care, and increase[d] frictional costs” (Notice of Proposed Rulemaking, NY Reg, June 30, 2010 at 33-38). Disputes over the medical necessity or the frequency/duration of medical care were often made after the care was provided, on a case-by-case basis, when the employer disputed the bill. It was reasonable for the Board to promulgate uniform guidelines for defining the nature and scope of treatment considered medically necessary. By adopting the pre-authorized list and variance procedure for determining the necessity of care, the Board provides a measure of avoiding delay and uncertainty that previously resulted from disputes over the medical necessity of treatment.

V

Claimant next claims that the Guidelines remove the burden of proof from the employer and the carrier and shift it to the injured worker and the treating physician. This, claimant argues, is directly contrary to the Workers’ Compensation Law.

Under the regulations, the burden of proof to establish that a variance is appropriate and medically necessary rests on the treating medical provider (12 NYCRR 324.3 [a] [2]). Whether a treating medical provider has met this burden is a threshold determination that must be made whenever a carrier properly and timely articulates an objection to a variance request.

Contrary to claimant’s contention, nothing in the Workers’ Compensation Law has ever precluded the Board from requiring proof of medical necessity from claimant’s health care provider. Indeed, the claimant generally has the burden in the first instance of proving facts sufficient to support his or her claim for compensation (see Matter of Malacarne v City of Yonkers Parking Auth., 41 NY2d 189, 193 [1976] [claimant has the burden of showing that injuries were sustained in the course of employment]). Moreover, in her argument, claimant relies on the provision of Workers’ Compensation Law § 13-a (5) that an employer’s or carrier’s refusal to authorize “special services” costing more than $1,000 must be based on a “conflicting second opinion” by a Board-authorized physician. That requirement presupposes that the claimant has submitted the first opinion, from his or her treating physician.

We also disagree with claimant’s contention that section 21 (5) of the Workers’ Compensation Law establishes that the burden rests on the employer or carrier. That provision creates a presumption, “[i]n any proceeding for the enforcement of a claim for compensation,” that “the contents of medical and surgical reports introduced in evidence by claimants for compensation shall constitute prima facie evidence of fact as to the matter contained therein” (Workers’ Compensation Law § 21 [5]). It is the carrier that then bears the burden of proffering “substantial evidence” to contradict the content of those medical reports (id.).

We agree with the Appellate Division majority that claimants can continue to rely on the presumption, while also satisfying the variance procedure’s requirement that they establish the medical necessity of the requested treatment. While the presumption establishes the facts contained in the medical report, the claimant must first establish the medical necessity for the treatment.

VI

Finally, claimant argues that the Guidelines deny injured workers due process by predetermining their need for medical treatment. She contends that the Guidelines do not provide an opportunity to be heard in a meaningful time and manner.

Generally, procedural due process principles require an opportunity for a meaningful hearing prior to the deprivation of a significant property interest (see Hodel v Virginia Surface Mining & Reclamation Assn., Inc., 452 US 264, 303 [1981]). “The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner” (Mathews v Eldridge, 424 US 319, 333 [1976] [internal quotation marks omitted]; see Curiale v Ardra Ins. Co., 88 NY2d 268, 274 [1996]).

The Guidelines provide claimants with a meaningful opportunity to be heard on the denial of any variance request. The variance procedure expressly provides a process for requesting review of the denial of a variance request, under which the treating medical provider may elect review by a medical arbitrator or through an expedited hearing process (see 12 NYCRR 324.3 [d]). Indeed, in this case, a hearing was held at which a Workers’ Compensation Law Judge considered testimony by both claimant’s own care provider and the independent expert engaged by the carrier. Claimant was represented by counsel, who cross-examined the carrier’s expert. The Workers’ Compensation Law Judge’s decision was reviewed by the Board, which considered legal arguments by claimant’s attorney, and the Board’s decision was subject to judicial review.

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

Rivera, J.

(dissenting). I agree that the Workers’ Compensation Board acted within the scope of its statutory authority under the Workers’ Compensation Law in adopting regulations incorporating a list of pre-authorized medical procedures, and a system for implementing consideration of treatment recommendations not included on the list. However, the Board exceeded its authority when it promulgated regulations imposing a preapproval requirement that forecloses reimbursement for medical services that vary from the list and the Board’s Medical Treatment Guidelines (Guidelines) in all cases where the services are rendered in advance of approval. Also, to the extent the Board’s regulations establish a variance scheme that predetermines that all treatment not included on the preauthorized list of services is presumptively not medically necessary, it imposed a burden on Kigin and other claimants inconsistent with the statute’s language and underlying purpose. Therefore, I would reverse the Appellate Division.

The Workers’ Compensation Law “is framed on broad principles for the protection of [workers]” (Matter of Waters v Taylor Co., 218 NY 248, 251 [1916]; accord Matter of Illaqua v Barr-Llewellyn Buick Co., 81 AD2d 708, 708 [3d Dept 1981], citing Matter of Heitz v Ruppert, 218 NY 148, 154 [1916], and Matter of Lorer v Gotham Concrete & Cement Finish Corp., 8 AD2d 221, 224 [3d Dept 1959]), and thus “should be construed liberally in favor of the employee” (Matter of Wolfe v Sibley, Lindsay & Curr Co., 36 NY2d 505, 508 [1975]). It is beyond dispute that the Board has broad regulatory power to administer and carry out the mandates of the Workers’ Compensation Law (see e.g. Workers’ Compensation Law §§ 117 [1]; 141). To that end, the Board is authorized to “adopt reasonable rules consistent with and supplemental to” the statutory scheme (id. § 117 [1]). However, the Board’s powers are not limitless, and we review its “administrative regulations to determine whether they are rational and to ensure that they are not arbitrary or capricious” or contrary to the statute under which they are promulgated (Matter of Belmonte v Snashall, 2 NY3d 560, 567 [2004]; see Kuppersmith v Dowling, 93 NY2d 90, 96 [1999]).

The Workers’ Compensation Law states that employers “shall be liable for the payment of’ and “shall promptly provide for an injured employee” medical treatment “for such period as the nature of the injury or the process of recovery may require” (Workers’ Compensation Law § 13 [a]). Prior to the Board’s regulatory adoption of the Guidelines in 2010, where an employer or carrier disputed a request for treatment reimbursement, the parties resolved the dispute pursuant to an individualized determination of whether the request is compensable after treatment was rendered to the claimant (see Matter of Kigin v State of N.Y. Workers’ Compensation Bd., 109 AD3d 299, 306 [3d Dept 2013], citing Workers’ Compensation Law §§ 13-g, 13-k, 13-l, 13-m, Matter of Spinex Labs. [Patton], 213 AD2d 884, 885 [3d Dept 1995], and Employer: Livingston County, 2011 WL 5618432, *5, 2011 NY Wrk Comp LEXIS 6751, *15-16 [WCB No. 7990 5338, Nov. 9, 2011]; see also 110 NY Jur 2d, Workers’ Compensation § 565 [after treatment is rendered, employer must pay or give written notice of the reasons for nonpayment]). Only in certain cases where the claimant sought treatment in the form of “specialist consultations, surgical operations, physiotherapeutic or occupational therapy procedures, x-ray examinations or special diagnostic laboratory tests costing more than [$500]” was the provider required to obtain preauthorization for the treatment from the employer or Board in order to obtain reimbursement (Workers’ Compensation Law § 13-a [5]). A denial of pre-authorization under this section must be based on “a conflicting second opinion rendered by a physician authorized by the board” (id,.).

As part of the legislative efforts to streamline compensation for workers’ injuries and increase benefits for injured workers while reducing costs, in 2007, the legislature amended section 13-a (5) by raising the threshold cost of services requiring preauthorization to $1,000 and directing the Board to “issue and maintain a list of pre-authorized procedures” (Workers’ Compensation Law § 13-a [5]; L 2007, ch 6, § 28). Pursuant to this legislative mandate and at the direction of the executive branch, the Board promulgated regulations that incorporated the Guidelines developed by various medical experts, and which served as a basis for the list of pre-authorized procedures. The Board then promulgated regulations that implemented a regulatory scheme whereby reimbursement for medical services would be subject to the Guidelines. All of this was well within the Board’s power and in furtherance of the statute.

The Board went awry when it promulgated regulations that imposed a variance scheme that requires preapproval for reimbursement requests related to treatment that varies from the Guidelines. Section 324.3 of the Board’s regulations states that a variance for medical care that varies from the Guidelines “must be requested and granted . . . before [that care is] provided to the claimant” (12 NYCRR 324.3 [a] [1]). Nothing in the language of the statute limits compensation to care approved in advance of treatment unless the pre-authorization requirement of section 13-a (5) applies, and there is no claim that it does here. Thus, the regulation’s preapproval requirement lacks a necessary textual grounding to the extent that it extends the limited pre-authorization requirement of section 13-a (5) to care beyond that specifically enumerated in that section of the statute. Indeed, it is undisputed that prior to implementation of the regulations, disputes over reimbursement for medical services other than those in section 13-a (5) were usually resolved after the services had been provided.

In this regard, the Board’s regulations also undermine the purpose of the 2007 amendments “to remove impediments to prompt diagnostic and treatment measures” (see Governor’s Program Bill Mem No. 9 at 5, Bill Jacket, L 2007, ch 6). The regulations instead serve to hinder timely medical service delivery by denying payment to providers who fail to secure preapproval. Under the regulations, “a request for a variance will not be considered if the medical care has already been provided” (12 NYCRR 324.3 [a] [1]). As a result, the preapproval requirement incentivizes providers to delay treatment based on financial concerns. Realistically, providers will defer medical care until they are certain of reimbursement, which under the regulations means until a variance is granted. How long this may take is uncertain, and dependent upon the deliberateness of the administrative process. Such delay carries with it the potential for significant adverse health consequences due to a break in medical services. In contrast, the statute expressly provides ensured compensation for medically necessary services, making no mention of whether treatment was rendered prior to approval. The Board’s regulations would permit denial of reimbursement even for medically necessary treatment simply because the medical services were provided prior to preapproval. As a consequence, the regulations are inconsistent with the mandate of section 13 (a).

The Board is also subject to challenge for interpreting its regulations so as to deny Kigin’s request for reimbursement on the ground that her treatment varied from the Guidelines. This interpretation contravenes the statutory and regulatory scheme for individual assessment of compensable injuries, and was not mandated by the 2007 amendments.

Although I agree with the majority that the claimant had the burden to establish that the treatment was compensable under the statute (see majority op at 468), under the Board’s interpretation of the regulations the claimant is subject to an adverse presumption that the requested services are not medically necessary simply because they are not included on the preauthorized list and vary from the Guidelines.

The Board argues, and the majority concludes, that the legislature’s directive to create a list of pre-authorized procedures also means that the Board has the authority to predetermine that all excluded services are not medically necessary. I disagree. The more logical and reasonable interpretation of the statutory language, and one which furthers the 2007 amendments’ purpose to increase benefits to workers, is that the legislature authorized the Board to predetermine procedures over which there was general medical consensus, leaving claims regarding other medical services to the preexisting dispute resolution process. That process is better suited to determinations focused on the individual’s condition and needs. Conversely, the rule-making process is more appropriate to pronouncements of generalized treatment protocols, without consideration of specific individualized health concerns (see State Administrative Procedure Act § 102 [2] [a] [i] [defining a “rule” as “the whole or part of each agency statement, regulation or code of general applicability that implements or applies law” (emphasis added)]; see also Matter of Alca Indus. v Delaney, 92 NY2d 775, 778 [1999] [discussing distinction between rulemaking and “ad hoc decision making based on individual facts and circumstances”]).

The statutory language does not support the Board’s position that the variance process established by the regulations is consistent with the preexisting statutory scheme. The source of the Board’s authority for the Guidelines, section 13-a (5), merely states that the Board “shall issue and maintain a list of preauthorized procedures.” It does not state that excluded procedures are to be treated as presumptively not medically necessary. Since the Guidelines were adopted pursuant to the exercise of the Board’s rule-making power, the Board’s interpretation of the statute would permit the regulations to supplant the individualized assessment of medical necessity by establishing a presumption against certain services. We would expect that such a dramatic departure from the prior statutorily established case-by-case approach would be authorized by clear, unambiguous language.

Moreover, the Board’s interpretation favors the legislative goal to reduce costs to the detriment of the legislative goal to increase benefits to workers. Under the Board’s approach, the claimant faces a previously unknown burden to rebut a presumption against payment for certain medical services, and must endure the physical and mental effects of delays in service pending the outcome of the variance request. This appears to be in furtherance of cost reduction for its own sake, for it increases the challenges faced by claimants rather than “remov[ing] impediments to prompt diagnostic and treatment measures” (Governor’s Program Bill Mem No. 9 at 5). Conversely, both goals are achievable by the adoption of a pre-authorized list which expedites treatment delivery without automatically labeling certain medical care medically unnecessary, thus increasing benefits for workers, and at the same time reducing the number of claims and parties subjected to the dispute and variance process, thus containing costs.

The statutory presumption in favor of claimants applicable to proceedings to enforce claims for compensation, found in section 21 (5), illustrates the legislative commitment to reducing the burdens faced by claimants in securing benefits, and further supports the conclusion that the Board’s interpretation is contrary to the statute and the legislative intent. Section 21 (5) states that in any proceeding to enforce a claim for compensation

“it shall be presumed in the absence of substantial evidence to the contrary ...”
“ . . . [tjhat the contents of medical and surgical reports introduced in evidence by claimants for compensation shall constitute prima facie evidence of fact as to the matter contained therein.”

No such presumption applies to the carrier/employer’s medical evidence.

The presumption clearly indicates the legislature’s intention to ease the claimant’s burden of establishing a right to reimbursement for treatment. The Board’s interpretation undermines that intent because it requires the claimant to establish by facts and opinion that the treatment is medically necessary, without benefit of the fact presumption, and it eliminates the carrier/employer’s burden to rebut the presumption with substantial evidence to the contrary.

Here, the Board determined that Kigin’s medical provider failed to establish that the request for compensation for additional acupuncture treatments was medically necessary. That determination, however, was based on the independent medical examination and report of Dr. Chiu, who concluded that the treatments were not medically necessary because Kigin was not disabled and the treatments failed to comply with the Guidelines. This was error, as the Board had previously classified Kigin as permanently partially disabled, and Dr. Chiu should have evaluated the services not as against generalized Guidelines of pre-authorized treatment, but based on the medical care’s impact on Kigin’s conditions and needs.

I dissent.

Judges Read, Smith and Abdus-Salaam concur; Judge Rivera dissents in an opinion in which Chief Judge Lippman and Judge Graffeo concur.

Order affirmed, with costs.

      . The guidelines were limited to the treatment of injuries to the low back, cervical spine, knee, and shoulder because those injuries account for a disproportionately large amount of the cost of workers’ compensation medical care.

      . Although Dr. Coladner sought prior authorization for the acupuncture treatment under Workers’ Compensation Law § 13-a (5), at that time no such prior authorization was required under that section because the treatments did not involve “specialist consultations” or “special services” within the meaning of that section and would not have cost more than $1,000.

      . See New York State Workers’ Compensation Board, New York Neck Injury Medical Treatment Guidelines at 21 (2d ed 2013), available at http:// www.wcb.ny.gov/content/main/hcpp/MedicalTreatmentGuidelines/ NeckInjuryMTG2012.pdf.


source: Caselaw Access Project

author: Abdus-Salaam, J. Pigott, J.

license: Public Domain

text:
    [24 NE3d 1074, 999 NYS2d 810]
    Jandy Coleson, Individually and as Mother and Natural Guardian of Rolfy Soto, an Infant, Appellants, v City of New York et al., Respondents.
    Argued October 16, 2014;
    decided November 24, 2014

      POINTS OF COUNSEL

      Sim & Record, LLP, Bay side (Sang J. Sim of counsel), for appellants.
    I. Respondents owed a special duty to appellants. (Garrett v Holiday Inns, 58 NY2d 253; Kircher v City of Jamestown, 74 NY2d 251; Lauer v City of New York, 95 NY2d 95; Pelaez v Seide, 2 NY3d 186; Laratro v City of New York, 8 NY3d 79; McLean v City of New York, 12 NY3d 194; Kovit v Estate of Hallums, 4 NY3d 499; Dinardo v City of New York, 13 NY3d 872;
      Cuffy v City of New York, 69 NY2d 255; Valdez v City of New York, 18 NY3d 69.) II. The police department’s failure to protect Jandy Coleson was ministerial. (McLean v City of New York, 12 NY3d 194; Tango v Tulevech, 61 NY2d 34; Charles O. Desch, Inc. v State of New York, 60 AD2d 678, 45 NY2d 882; Burgundy Basin Inn v State of New York, 47 AD2d 692; Williams v State of New York, 14 NY2d 793; Puffer v City of Binghamton, 59 Misc 2d 856; Luckie v Goddard, 171 Misc 774; Haddock v City of New York, 75 NY2d 478; Johnson v City of New York, 15 NY3d 676; McCormack v City of New York, 80 NY2d 808.) III. Rolfy Soto was in the zone of danger. (Bovsun v Sanperi, 61 NY2d 219.)

      Zachary W. Carter, Corporation Counsel, New York City (Susan Paulson and Francis F. Caputo of counsel), for respondents.
    I. The complaint was properly dismissed where defendants demonstrated that plaintiffs could not establish the existence of a special duty and where, even if such duty was owed, defendants are immune from liability in tort for the discretionary governmental act of providing police protection, a quintessential governmental function. (Valdez v City of New York, 18 NY3d 69; Rozell v Milby, 98 AD3d 960; Bardavid v New York City Tr. Auth., 97 AD2d 353, 61 NY2d 986; Cuffy v City of New York, 69 NY2d 255; Albino v New York City Hous. Auth., 78 AD3d 485; Tango v Tulevech, 61 NY2d 34; McLean v City of New York, 12 NY3d 194; Miller v State of New York, 125 AD2d 853; Dinardo v City of New York, 13 NY3d 872; Brown v City of New York, 73 AD3d 1113.) II. The Supreme Court properly found that infant plaintiff cannot recover damages because he was not in the zone of danger. (Stamm v PHH Veh. Mgt. Servs., LLC, 32 AD3d 784; Bovsun v Sanperi, 61 NY2d 219; Gonzalez v New York City Hous. Auth., 181 AD2d 440; Hass v Manhattan & Bronx Surface Tr. Operating Auth., 170 AD2d 406.)
   OPINION OF THE COURT

Abdus-Salaam, J.

In this negligence action, we must determine whether the evidence submitted by plaintiffs in opposition to the City of New York’s summary judgment motion was sufficient to raise a triable issue of fact as to the existence of a special relationship between plaintiffs and the City. We hold that the evidence presented in this case was sufficient to defeat the motion, and we therefore reverse the order of the Appellate Division.

L

Commencing in the year 2000, plaintiff Jandy Coleson suffered both verbal and physical abuse at the hands of her husband Samuel Coleson. As a result, Coleson was jailed on a number of occasions and plaintiff obtained numerous orders of protection against him. In May 2004, following an incident where Coleson was abusing drugs, plaintiff ordered Coleson to leave the apartment and she changed the locks. On June 23, 2004, Coleson tried to force himself into the building and threatened to kill plaintiff and stab her with a screwdriver he was carrying. Plaintiff called the New York City Police Department (NYPD), but when they arrived on the scene, Coleson had already fled. The officers, including one Officer Reyes, searched for Coleson with plaintiffs assistance. Coleson was apprehended shortly before 10:00 a.m.

On the same date, plaintiff applied for another order of protection and was later transported by the police to the local precinct with her son. Plaintiff testified in her deposition that while at the precinct, an officer told her that “they had arrested [Coleson], he’s going to be in prison for a while, [and that she should not] worry, [she] was going to be given protection.” She was escorted by the police to Safe Horizon, a nonprofit organization that provides services to domestic violence victims, to meet with a counselor and receive other assistance. That evening, at approximately 11:00 p.m., plaintiff received a follow-up phone call from Officer Reyes, who told her that Coleson “was in front of the judge” and that he was going to be “sentence[d].” Reyes also “told [plaintiff] that everything was okay, that everything was in . . . process, [and] that she was going to keep in contact with [her].” This phone call lasted for approximately two hours.

Two days later, plaintiff went to pick up her son from his school, which was across from a car wash, when she saw Coleson. Coleson approached her, stating that he wanted to speak with her. He took out a knife and stabbed plaintiff in the back. The child, who was seven years old at the time, testified at his deposition that he saw Coleson chasing plaintiff with a knife while plaintiff screamed for help. The child hid behind a car, and a man who worked at the car wash took the child and locked him in a broom closet. About 5 to 10 minutes later the child came out of the closet and saw his mother on the ground in a pool of blood.

Plaintiff, on behalf of herself and her son, commenced this negligence action against the City of New York and the NYPD (collectively the City). Plaintiffs also asserted a claim for negligent infliction of emotional distress, arguing that the child was in the zone of danger during the incident.

The City moved for summary judgment dismissing the complaint, arguing that the statements Officer Reyes allegedly made to plaintiff were not definite enough to create justifiable reliance in order to establish a special relationship in satisfaction of the duty prong of plaintiffs’ negligence cause of action. Further, the City argued that the child was not in the zone of danger because he did not witness the attack on his mother. In opposition, plaintiffs argued that a special duty existed between plaintiff and the City based on the NYPD’s agreement to provide protection to her. They also asserted that the child did witness the assault because he observed Coleson approach his mother with a knife, and although he was placed in a broom closet, he could hear what was occurring.

Supreme Court granted the City’s motion for summary judgment (Coleson v City of New York, 2012 NY Slip Op 33713[U] [Sup Ct, Bronx County 2012]). The court held that plaintiffs failed to establish the requirements for a special relationship because they failed “to demonstrate that the verbal assurance of protection at the precinct was followed by any visible police protection” and “fail[ed] to show any post arraignment promise of protection” (id. at *5). The court also determined that the child was not in the zone of danger because he was locked in a broom closet at the time of the incident.

The Appellate Division affirmed (Coleson v City of New York, 106 AD3d 474 [1st Dept 2013]), holding that “[i]n the absence of any evidence that defendants assumed an affirmative duty to protect plaintiff from attacks by her husband, [the City does] not owe a duty of care to plaintiff’ (id. at 474, citing Valdez v City of New York, 18 NY3d 69 [2011]). The court stated that the statements of the officers which plaintiff relied upon “were too vague to constitute promises giving rise to a duty of care” (106 AD3d at 475, citing Dinardo v City of New York, 13 NY3d 872, 874 [2009]). Finally, the court concluded that based on the lack of a special relationship, the child’s claim for negligent infliction of emotional distress should also be dismissed.

In a concurring opinion, two justices noted that although the majority’s ruling is mandated under Valdez, “[i]f the City’s statements in this case are not specific enough to find that [the City] assumed an affirmative duty to protect plaintiff, it is difficult to imagine any statements that could ever be specific enough” and “it seems likely that no court of this State will ever find a municipality to have a special duty toward a plaintiff unless the municipality affirmatively consents to assume such a duty” (106 AD3d at 477).

The Appellate Division granted plaintiffs’ motion for leave to appeal to this Court and certified the question of whether the order was properly made (2013 NY Slip Op 88312[U] [2013]).

II

Liability for a claim that a municipality negligently exercised a governmental function “turns upon the existence of a special duty to the injured person, in contrast to a general duty owed to the public” (Garrett v Holiday Inns, 58 NY2d 253, 261 [1983]; see Laratro v City of New York, 8 NY3d 79 [2006]; Cuffy v City of New York, 69 NY2d 255 [1987]). “[A] duty to exercise reasonable care toward [a] plaintiff’ is “born of a special relationship between the plaintiff and the governmental entity” (Pelaez v Seide, 2 NY3d 186, 198-199 [2004]). This Court has determined that a special relationship can be formed in three ways:

“(1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation” (Pelaez, 2 NY3d at 199-200).

In Cuffy v City of New York (69 NY2d 255 [1987]), we listed the requisite elements for a duty voluntarily assumed:

“(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking” (id. at 260).

We noted that “the injured party’s reliance is . . . critical” (id. at 261).

Applying the Cuffy factors here, we conclude that plaintiffs raised a triable issue of fact as to whether a special relationship existed. With regard to the first factor, a jury could conclude that the police officers made promises to protect plaintiff. Plaintiff was notified by the police that Coleson was arrested, that he was in front of a judge to be sentenced, would be in jail for a while, and that the police would be in contact with her. As to the second factor, the police officers conceivably knew that Coleson would harm plaintiff if he was not apprehended, as evidenced by his arrest and the issuance of an order of protection to plaintiff. Given that plaintiff was told by Officer Reyes that everything was in process and she would keep in contact, there is an issue of fact as to whether the police knew that their inaction could lead to harm. The third factor is easily met, as plaintiff had direct contact with the police, by the police responding to her call about Coleson’s threats, making an arrest, escorting her to the police precinct, and plaintiffs phone call with Officer Reyes. Finally, regarding a party’s justifiable reliance on the municipality’s affirmative undertaking, given the assurances that plaintiff received from Officer Reyes that Coleson was in jail and that he would be there for a while, a jury could find that it was reasonable for plaintiff to believe that Coleson would be jailed for the foreseeable future, and that the police would contact her if that turned out not to be the case.

The conduct of the police here was more substantial, involved, and interactive than the police conduct in Valdez. In Valdez v City of New York (18 NY3d 69 [2011]), the plaintiff was shot by her estranged boyfriend, after, in an attempt to flee, she was advised by officers that she should go back into her apartment and that the police would locate and arrest her boyfriend. This Court concluded that the officer’s statements to the plaintiff did not create a special relationship because “[i]t was not reasonable for [the plaintiff] to conclude, based on nothing more than the officer’s statement that the police were going to arrest [her boyfriend] ‘immediately,’ that she could relax her vigilance indefinitely” (id. at 81).

Unlike in Valdez, plaintiff was told by the police that Coleson was going to be in prison for a while and that they would stay in contact with plaintiff. Contrary to the City’s and the dissent’s contention, these particular assertions were not vague (cf. Dinardo v City of New York, 13 NY3d at 874). This Court has stated that

“at the heart of most of these ‘special duty’ cases is the unfairness that the courts have perceived in precluding recovery when a municipality’s voluntary undertaking has lulled the injured party into a false sense of security and has thereby induced him [or her] either to relax his [or her] own vigilance or to forego other available avenues of protection” (Cuffy, 69 NY2d at 261).

The role that police officers play when responding to domestic violence victims is critical in allowing victims to feel consoled and supported. We do not, as the dissent suggests, seek to discourage the police from being responsive to crime victims. Rather, the police should make assurances only to the extent that they have an actual basis for such assurances, and to the extent that such assurances will not lull a victim into a false sense of security. The statements made by Officer Reyes to plaintiff may have lulled her into believing that she could relax her vigilance for a reasonable period of time, certainly more than two days.

Whether a special relationship exists is generally a question for the jury (see De Long v County of Erie, 60 NY2d 296, 306 [1983] ). On this record, plaintiffs raised a triable issue of fact as to whether a special relationship existed that should be decided by a jury.

As the Appellate Division only addressed the issue of special relationship, remittal to that court to review the City’s claim of governmental immunity is warranted.

III.

Plaintiffs argue that the child was in the zone of danger because, although he was in a closet at the time his mother was stabbed, he saw Coleson with the knife and while in the closet heard his mother’s screams. The City argues that the child was not in the zone of danger because he was in the closet and did not see his mother being stabbed. “In order to recover for an alleged emotional injury based on the zone of danger theory . . . , a plaintiff must establish that he suffered serious emotional distress that was proximately caused by the observation of a family member’s death or serious injury while in the zone of danger” (Stamm v PHH Veh. Mgt. Servs., LLC, 32 AD3d 784, 786 [1st Dept 2006], citing Bovsun v Sanperi, 61 NY2d 219 [1984] ; see Trombetta v Conkling, 82 NY2d 549 [1993]). We conclude that the child was not in the zone of danger because he was in a broom closet while his mother was stabbed, and thus neither saw the incident nor was immediately aware of the incident at the time it occurred.

IV

In sum, the acts of the police officers in this case were sufficient to raise a triable issue of fact as to justifiable reliance. Accordingly, the order of the Appellate Division should be modified in accordance with this opinion, without costs, the case remitted to the Appellate Division for consideration of issues raised but not determined on appeal to that court, and as so modified, affirmed and the certified question not answered upon the ground that it is unnecessary.

Pigott, J.

(dissenting in part). The majority’s opinion creates a paradox. Under the guise of protecting victims of domestic violence by allowing them to recover in tort against a municipality for a police officer’s vague promises and assurances during an emotionally charged and dangerous situation, the opinion encourages the police to forgo any meaningful communication or action that could be even remotely construed as creating a special relationship between the complainant and police. In doing so, the majority retreats from our recent decisions in Valdez v City of New York (18 NY3d 69 [2011]), Dinardo v City of New York (13 NY3d 872 [2009]) and McLean v City of New York (12 NY3d 194 [2009]) where we reiterated the well-established rule that only an “affirmative undertaking” that creates justifiable reliance can justify holding a municipality liable for negligence in performing a governmental function (Cuffy v City of New York, 69 NY2d 255, 260 [1987]).

According to the majority, the police did four things that now expose the City to potential liability: (1) they made promises to protect plaintiff; (2) they “conceivably knew” that plaintiffs husband, Samuel Coleson, would harm her if he was not apprehended because they had arrested him and the court issued an order of protection to the plaintiff; (3) plaintiff had direct contact with police because Officer Christine Reyes spoke with plaintiff on the telephone and advised her that everything was in process and she, Officer Reyes, would keep in contact; and (4) Officer Reyes advised the plaintiff that Coleson was in jail and that he would be there for a while, thus allowing plaintiff, who had a tumultuous and violent history with this man, to justifiably rely on this assurance to go about her daily life (majority op at 482). The majority now says that in doing these four things, the police may be exposing the City to liability.

Had the police actually made specific assurances as to how plaintiff would be protected, then certainly a question of fact would have been presented. Here, however, plaintiff claims that a police officer told her at the station, after Coleson’s arrest, that Coleson was “going to be in prison for a while, not to worry, [she] was going to be given protection.” When asked at her deposition, she was unable to state what, if any, protection the police had promised to provide, nor did she ask. Assuming, as we must, plaintiffs testimony to he true, it cannot be said that such a vaguely-worded statement, i.e., that plaintiff would be provided protection, without any indication as to the type of protection to be provided, constituted an action by police “that would lull a plaintiff into a false sense of security or otherwise generate justifiable reliance” (Dinardo, 13 NY3d at 874; cf. Mastroianni v County of Suffolk, 91 NY2d 198, 205 [1997] [after responding to a call at the victim’s residence upon a complaint that her estranged husband had allegedly been inside her home, police remained across the street for an hour after having assured her that they would “do whatever (they) could” if she had further problems with him]; De Long v County of Erie, 60 NY2d 296, 305 [1983] [assurance by 911 operator employed by the county that help would be at victim’s home “right away,” in response to victim’s burglary-in-progress complaint, potentially played a part in victim’s decision to remain in her home as opposed to seeking other assistance]). The majority does not explain how this plaintiff could have justifiably relied upon such a vague offer of “protection,” or how such a question could be answered by a jury without engaging in speculation, absent any specific assurances as to how that “protection” would have been provided.

Equally troubling is that the majority appears to have added to the justifiable reliance prong of the Cuffy test, namely, that police may make assurances “only to the extent that they have an actual basis for such assurances” (majority op at 483 [emphasis supplied]). Is it possible to make these situations any more difficult for the police and those they are called on to protect? Not only must the police watch what they say, they must also be prepared to back up what they say, no matter how vague the assurances may be. For example, statements such as, “It’s going to be okay,” or “We’ll send him away so he doesn’t hurt you again” will undoubtedly be utilized in potential civil suits as examples of assurances that the police made that had no “actual basis.” Such statements are on the same spectrum as the vague promises of “protection” and to “keep in contact” that were made in this case. The end result, of course, is that police will be deterred from providing any assurances to victims of domestic violence, those victims will be less than willing to cooperate in the prosecution of their significant others (or family members), and the cycle will continue, with victims in all likelihood returning to their abusers, all because the police were (justifiably) wary about making any comment that could be considered a promise of safety.

The majority claims that the 11:00 p.m. phone call that plaintiff received from Officer Reyes on the night of Coleson’s arrest, when Officer Reyes allegedly told plaintiff that Coleson “was in front of [a] judge” and was going to be “sentence[d]” and that police would “keep in contact with [plaintiff],” raised a triable issue of fact on the issue of justifiable reliance. This conclusion construes statements made by police apprising the victim of the status of the victim’s complaint as potential assurances of protection upon which the majority claims a plaintiff may justifiably rely. Under the majority’s holding, any status report akin to the one given in this case will expose a municipality to liability, even if, as in this case, the municipality has not made an affirmative undertaking. Thus, the majority’s holding will encourage law enforcement to provide victims of domestic violence, or any victim of violent crime, with as little information as possible out of concern that anything they say can and will be used against them (and their employer) in a potential civil suit.

According to the majority, the fact that Officer Reyes told plaintiff that her husband would be in prison for “a while” and that police would stay in contact with her distinguishes this case from Valdez, but there is little distinction since neither the plaintiff here nor the plaintiff in Valdez had reason to believe, based on statements by police, that she could relax her vigilance. The officers in Valdez promised the plaintiff that the estranged boyfriend would be arrested “immediately,” and we held that the plaintiff could not have justifiably relied on that statement in light of the fact that neither the police nor the plaintiff knew the boyfriend’s whereabouts. Here, the police did not mention how long Coleson would be detained, and it cannot be said that Officer Reyes’s statement that she would “keep in contact” meant that Officer Reyes would contact plaintiff if and when Coleson was released, nor does plaintiff make that claim, so Officer Reyes’s statement could not have lulled her into inaction.

I would therefore answer the certified question in the negative.

Chief Judge Lippman and Judges Graffeo and Rivera concur; Judge Pigott dissents in part in an opinion in which Judges Read and Smith concur.

Order modified, without costs, in accordance with the opinion herein, case remitted to the Appellate Division, First Department, for consideration of issues raised but not determined on the appeal to that court and, as so modified, affirmed, and certified question not answered upon the ground that it is unnecessary.

       I do not suggest, as the majority asserts, that the majority “seek[s] to discourage the police from being responsive to crime victims” (majority op at 483). My point is that the majority’s holding will have that effect.


author: Chief Judge Lippman.

text:
    [24 NE3d 1090, 999 NYS2d 826]
    In the Matter of Mark Ford et al., Appellants, v New York State Racing and Wagering Board, Respondent.
    Argued November 19, 2014;
    decided December 18, 2014

      POINTS OF COUNSEL

      Meyer, Suozzi, English & Klein, EC., Garden City (Andrew J. Turro and Kieran X. Bastióle of counsel), for appellants.
    I. In contravention of the separation of powers doctrine of the New York State Constitution and well-settled rules of statutory construction, the Third Department committed reversible error by (1) disregarding the plain and unambiguous language of the underlying enabling legislation mandating that equine drug testing be conducted proximate to a race meet in which a horse competes, and (2) instead upholding the rules which vest the New York State Racing and Wagering Board with sweeping, unbridled authority in excess of its jurisdiction as delegated by the legislature. (Matter of New York Statewide Coalition of Hispanic Chambers of Commerce v New York City Dept. of Health & Mental Hygiene, 110 AD3d 1; Rent Stabilization Assn. of N.Y. City v Higgins, 83 NY2d 156, 512 US 1213; Dutchess/Putnam Rest. & Tavern Assn. Inc. v Putnam County Dept. of Health, 178 F Supp 2d 396; Matter of Levine v Whalen, 39 NY2d 510; Matter of Nicholas v Kahn, 47 NY2d 24; New York Auto. Ins. Plan v New York Schools Ins. Reciprocal, 262 AD2d 152; Matter of Union Indem. Ins. Co. of N.Y., 92 NY2d 107; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Ralston v Blum, 105 Misc 2d 357; Matter of Gibson v Board of Educ. of Watkins Glen Cent. School Dist., 68 AD2d 967.) II. 9 NYCRR 4120.17 (b), which allows the New York State Racing and Wagering Board to select for testing any horse “among those anticipated to compete at New York tracks within 180 days,” is illusory in that it vests the Board with the unfettered authority to conduct equine drug testing at any time — without notice, geographic limitation, or factual basis — in excess of its delegated authority and, the regulation’s stated “time frame” is also arbitrary and without any rational or scientific basis. (Matter of Laterza v New York State Racing & Wagering Bd., 68 AD3d 1509; Equine Practitioners Assn. v New York State Racing & Wagering Bd., 105 AD2d 215, 66 NY2d 786.) III. The Third Department committed reversible error in reinstating the rules — and in particular 9 NYCRR 4120.17 (g) — by which the New York State Racing and Wagering Board has unilaterally empowered itself with the unbridled authority to conduct random warrantless searches, on licensees and non-licensees alike, at any time without notice or factual predicate, and without any geographic limitation. (Donovan v Dewey, 452 US 594; Anobile v Pelligrino, 303 F3d 107; People v Quackenbush, 88 NY2d 534; People v Scott, 79 NY2d 474; United States v Biswell, 406 US 311; Swint v City of Wadley,

      Ala., 51 F3d 988; New York v Burger, 482 US 691; Matter of Glenwood TV v Ratner, 103 AD2d 322, 65 NY2d 642; Village of Fairport v Teremy, 266 AD2d 909; Sokolov v Village of Freeport, 52 NY2d 341.) IV The Third Department’s reinstatement of the rules’ sanctioning provisions as to non-licensees and licensees also must be reversed. (Matter of LaChance v New York State Racing & Wagering Bd., 118 AD2d 262; Spevack v Klein, 385 US 511.) V 9 NYCRR 4120.17 (c) of the rules unduly expands the compulsory power of the New York State Racing and Wagering Board beyond this State’s borders and into Canada in excess of the Board’s jurisdiction.

      Eric T. Schneiderman, Attorney General, Albany (.Kathleen M. Arnold, Barbara D. Underwood and Andrew D. Bing of counsel), for respondent.
    I. The Racing, Pari-Mutuel Wagering and Breeding Law authorizes the New York State Racing and Wagering Board to adopt the out-of-competition testing regulation. (Matter of Nicholas v Kahn, 47 NY2d 24; Matter of General Elec. Capital Corp. v New York State Div. of Tax Appeals, Tax Appeals Trib., 2 NY3d 249; Matter of KSLM-Columbus Apts., Inc. v New York State Div. of Hous. & Community Renewal, 5 NY3d 303; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Boreali v Axelrod, 71 NY2d 1; Matter of Sullivan County Harness Racing Assn. v Glasser, 30 NY2d 269; Equine Practitioners Assn. v New York State Racing & Wagering Bd., 105 AD2d 215; Matter of Bokman v New York State Racing & Wagering Bd., 77 AD2d 459; Matter of Gill v New York State Racing & Wagering Bd., 11 Misc 3d 1068[A], 2006 NY Slip Op 50433[U], 50 AD3d 494; Matter of Casse v New York State Racing & Wagering Bd., 70 NY2d 589.) II. The regulation does not violate the right of licensees or non-licensed entities to be free from unreasonable searches and seizures. (New York v Burger, 482 US 691; People v Quackenbush, 88 NY2d 534; Lynch v City of New York, 589 F3d 94; Anobile v Pelligrino, 303 F3d 107; Dimeo v Griffin, 943 F2d 679; People v Scott, 79 NY2d 474; Donovan v Dewey, 452 US 594; United States v Biswell, 406 US 311; Spinelli v City of New York, 579 F3d 160; Cohen v State of New York, 94 NY2d 1.) III. The challenged provisions of the out-of-competition testing regulation are rational and should be upheld. (Kuppersmith v Dowling, 93 NY2d 90; New York State Assn. of Counties v Axelrod, 78 NY2d 158; Matter of Consolation Nursing Home v Commissioner of N.Y. State Dept. of Health, 85 NY2d 326; Matter of Shuman v New York State Racing & Wagering Bd., 40 AD3d 385; Matter of Laterza v New York State Racing & Wagering Bd., 68 AD3d 1509; Louisville Gas & Elec. Co. v Coleman, 277 US 32; Matter of Dougherty v State Harness Racing Commn., 286 App Div 837; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222; Matter of S. & J. Pharmacies v Axelrod, 91 AD2d 1131; Sumner v Hogan, 73 AD3d 618.)
   OPINION OF THE COURT

Chief Judge Lippman.

State agencies legislatively charged with regulating and supervising pari-mutuel horse racing have for decades taken measures to prevent horses from racing under the influence of drugs administered solely to boost equine speed beyond an animal’s natural capability. Prominent among these has been race day sampling of the blood and/or urine of competing horses to test for the presence of prohibited doping agents, a practice specifically authorized by respondent’s enabling legislation (Racing, Pari-Mutuel Wagering and Breeding Law § 301 [2] [a]).

The present litigation has concerned the validity of a rule first promulgated by respondent in 2009 in response to the introduction into the equine pharmacopeia of a new generation of doping agents capable of enhancing equine race speed while eluding race day detection. That rule, referred to as the out-of-competition testing rule (OCTR) (9 NYCRR 4120.17), required respondent’s licensees, among them petitioner standardbred owners and trainers, to make the harness racehorses they train and/or own available to respondent’s veterinarians for random blood and urine sampling at points temporally and spatially removed from any particular race in which they were to compete. Petitioners commenced this hybrid CPLR article 78 proceeding/declaratory judgment action in advance of the rule’s effective date, alleging, among other things, that equine drug testing without a nexus to the test subject’s participation in a specific, soon-to-be-run race is not authorized by respondent’s enabling legislation and would, if instituted, entail constitutionally unreasonable intrusions upon off-track farms stabling racehorses, some of which are owned by persons not subject to respondent’s licensing jurisdiction.

The petition was granted by Supreme Court which found, in essential part, that respondent had, in mandating out-of-competition racehorse drug testing, acted in excess of its legislatively delegated power. The Appellate Division, however, modified, effectively denying the petition, except as it bore upon one OCTR provision not here at issue (i.e., 9 NYCRR 4120.17 [e] [3]). The court found the rule otherwise valid to the extent challenged (107 AD3d 1071 [2013]), holding that the rule’s promulgation lay within respondent’s broad, legislatively conferred authority to regulate and supervise race meets at which pari-mutuel wagering was permitted {id. at 1073). The court also upheld specific provisions of the rule against petitioners’ claims that they were not rationally related to any legitimate regulatory objective and that the rule’s prescribed penalty for illicit doping was so severe as to be legally offensive (id. at 1073-1077). In deeming the OCTR for the most part valid, the Appellate Division necessarily rejected petitioners’ contention that the warrantless intrusions contemplated by the rule — by a sampling veterinarian into off-track stables possibly owned by persons not subject to respondent’s licensing jurisdiction — constituted constitutionally offensive privacy invasions (id. at 1076). The matter is now before us on petitioners’ appeal as of right pursuant to CPLR 5601 (b) (1).

While the appeal lies, our scope of review is significantly narrowed by the circumstance that, during the appeal’s pendency, in August 2014, the challenged rule was extensively amended, partly in response to petitioners’ objections. Although petitioners are unmollified by the amendments, their present arguments, insofar as directed at specific provisions of the originally promulgated OCTR, are pervasively mooted by the rule’s overhaul, and the amended rule, the validity of which has not to date been adjudicated, is not yet the proper subject of any appeal, much less one to this Court. We do not then pass upon particular provisions of the rule, either in its original or amended iteration, but confine our review to the independently determinable and potentially decisive issues raised and litigated as to whether there are legal grounds for respondent’s promulgation of any rule mandating out-of-competition racehorse testing, and whether a testing regimen of the sort proposed would of necessity involve constitutionally unreasonable intrusions by respondent’s agents. To the former inquiry we answer, “yes,” and to the latter, “no.” We accordingly affirm as the Appellate Division reached the same conclusions.

I

Respondent’s rationale for requiring out-of-competition testing is set forth in the affidavit of George A. Maylin, DVM, the Director of the New York State Racing and Wagering Board Drug Testing and Research Program since 1971, and a highly regarded expert in the field of equine pharmacology. Dr. Maylin explains that, while, historically, it had been possible effectively to detect and thereby deter the use of prohibited horse doping agents through race day sampling of race entrants, a regulatory loophole was created when protein-based drugs came into use as equine speed enhancers. According to Dr. Maylin, those powerful new doping agents, capable of turning even naturally lame horses into race competitors, could, unlike their antecedents, be administered long before the race whose running they would affect, and by reason of the lengthy interval between date of administration and the date of competition, escape race day detection in equine blood and urine. Unless, then, racehorses were tested closer to the date of drug administration — which, in the case of illicit doping, would, by design, be well in advance of any race day screening — the new doping agents could and likely would be used with impunity. And, in that event, racehorses would, at great risk to their own well-being and that of their jockeys, be pharmacologically enabled, and under extraordinarily stressful racing conditions impelled, far beyond their natural capabilities, solely to bestow an unfair, and indeed anticompetitive advantage on unscrupulous owners and trainers. The threat posed to the integrity of state sponsored pari-mutuel racing by this entirely practicable and, in Dr. Maylin’s judgment, already recurrent scenario was assertedly palpable.

While petitioners claim that there are race-day tests capable of detecting the kinds of doping agents targeted by out-of-competition testing and that out-of-competition testing is therefore unnecessary, the tests cited by petitioners are exceedingly costly and evidently of undemonstrated efficacy in detecting evidence of doping agents administered well in advance of competition. The existence of tests of such uncertain general utility does not stand in the way of concluding that the relevant requirement of a rational basis for respondent’s determination to mandate out-of-competition testing (see Kuppersmith v Dowling, 93 NY2d 90, 96 [1999]; New York State Assn. of Counties v Axelrod, 78 NY2d 158, 166 [1991]) was met. Notably, petitioners’ experts, while faulting respondent’s pre-amendment OCTR for overbreadth and vagueness in its definition of “prohibited substances” and for arbitrariness in its prescription of a 180-day pre-race test window, do not appear to dispute the essential point of the Maylin affidavit — that out-of-competition testing is, in some form, now necessary to insulate horse racing and accompanying pari-mutuel wagering from the hazardous and corrupting effects of modern horse doping. Respondent, we note, is not alone in embracing out-of-competition equine drug testing as a necessary regulatory counter to the new generation of horse doping agents. Racing authorities in other major horse racing jurisdictions, including Illinois, Indiana, Kentucky, New Jersey and New Mexico, have issued OCTRs reflecting a similar judgment as to the importance of out-of-competition testing to the future of state sponsored equine racing and wagering (see 111 Admin Code, tit 11, § 603.200; 71 Ind Admin Code 8-3-5; 810 Ky Admin Regs 1:110; NJ Admin Code § 13:70-14A.13; NM Code R § 15.2.6).

II

Petitioners nonetheless maintain that, even if out-of-competition testing is, at least in concept, a reasonable means of achieving a proper agency purpose, it cannot, given the scope of respondent’s legislatively delegated authority, be permissibly mandated by respondent through agency rulemaking. This contention rests essentially on language from two statutes: Racing, Pari-Mutuel Wagering and Breeding Law §§ 301 (2) and 902 (l). The former provides:

“2. Without limiting the generality of the foregoing,[ ] and in addition to its other powers:
“a. The state racing and wagering board shall prescribe rules and regulations for effectually preventing the use of improper devices, the administration of drugs or stimulants or other improper acts for the purpose of affecting the speed of harness horses in races in which they are about to participate” (emphasis supplied).

And the latter:

“1. In order to assure the public’s confidence and continue the high degree of integrity in racing at the pari-mutuel betting tracks, equine drug testing at race meetings shall be conducted by a state college within this state with an approved equine science program.” (Emphasis supplied.)

Petitioners reason that section 301 (2) (a)’s reference to respondent’s authority to prescribe rules prohibiting the administration of drugs “for the purpose of affecting the speed of harness horses in races in which they are about to participate” and section 902 (l)’s designation of an official tester “at race meetings” together demonstrate that the Board’s testing authority is statutorily limited to horses competing at race meetings.

Petitioners, we think, over-read these provisions. While it is true that an administrative agency within the executive branch may not under the guise of rulemaking engage in basic policy determinations reserved to the legislature (Rent Stabilization Assn. of N.Y. City v Higgins, 83 NY2d 156, 169 [1993], cert denied 512 US 1213 [1993]), it is also true that the legislature “has considerable latitude in determining the reasonable and practicable point of generality in adopting a standard for administrative action and, thus, [that] a reasonable amount of discretion may be delegated to . . . administrative officials” (Brightonian Nursing Home v Daines, 21 NY3d 570, 579 [2013] [internal quotation marks and citations omitted]). Here, the legislature, in drafting Racing, Pari-Mutuel Wagering and Breeding Law § 301 (2), was at pains to be explicit that that subdivision was not to be construed as a limitation upon respondent’s powers “to supervise generally all harness race meetings in this state at which pari-mutuel betting is conducted” and in that connection to “adopt rules and regulations ... to carry into effect its [respondent’s] purposes and provisions and to prevent circumvention or evasion thereof’ (Racing, Pari-Mutuel Wagering and Breeding Law § 301 [1] [emphasis added]). Thus, not only does section 301 when read in its entirety make plain that the legislature had no purpose of restricting respondent’s general supervisory power over pari-mutuel harness race meetings, but it specifically authorizes regulatory action to prevent the circumvention or evasion of existing rules, necessarily including those whose object, sensibly understood, is “effectually” to prevent horses from racing under the influence of speed-enhancing doping agents. Out-of-competition drug testing, which, as noted, has as its raison d’etre the plugging of a loophole created in the preexisting regulatory regimen by the introduction of doping agents capable of affecting competitive performance while eluding race day detection, is precisely the sort of measure contemplated by section 301 (1). As for section 902 (1), it too has no apparent limiting purpose — its designation of a laboratory to perform equine drug testing at race meetings does not reasonably signify that such testing may be required by respondent only at race meetings.

Indeed, respondent’s legislatively delegated authority over horse racing and attendant pari-mutuel activities has historically been well nigh plenary. When the challenged rule was first promulgated, Racing, Pari-Mutuel Wagering and Breeding Law § 101 (1), incorporating language from a predecessor enabling provision dating from 1973 (L 1973, ch 346, § 3), vested in respondent “general jurisdiction over all horse racing activities and all pari-mutuel activities, both on-track and off-track, in the state and over the corporations, associations, and persons engaged therein.” Respondent’s power effectively to reach offtrack activity, such as horse doping, bearing directly on the safety and integrity of pari-mutuel racing, seems to us unarguable.

m

Petitioners’ claim, that respondent’s original OCTR facially infringed the constitutionally protected privacy rights of persons stabling racehorses chosen for testing, is unreviewable since, as noted, the initial OCTR has been substantially superceded. To the extent, however, that petitioners may be understood to argue that warrantless, out-of-competition equine testing pursuant to an administrative regulatory scheme is categorically incompatible with the constitutional prohibition against unreasonable governmental searches, their argument is reviewable, but unavailing. Respondent’s licensees, having voluntarily entered a pervasively regulated field of commercial endeavor in which suspicionless equine testing has for decades been used as a routine, legally mandated prophylactic, can claim no privacy expectation that would prevent respondent from testing their racehorses’ blood and urine for illicit, speed-enhancing substances in accordance with a prescribed testing regimen meaningfully limiting the scope of any intrusion incident to the sampling procedure (see New York v Burger, 482 US 691, 702 [1987]; People v Quackenbush, 88 NY2d 534, 541-543 [1996]). And, although private horse farm owners not similarly subject to pervasive regulation ordinarily retain a reasonable expectation that government agents will not intrude upon their property except with their consent or pursuant to a warrant, when they enter into commercial arrangements pursuant to which racehorses owned or trained by respondent’s licensees are stabled on their property, they may reasonably be deemed to have relinquished a privacy-based objection to the very closely circumscribed property intrusion that will foresee-ably occur incident to an appropriately focused out-of-competition testing regimen. The intrusion contemplated by such a testing regimen is not one into any residential or otherwise notably private space, but a highly focused, guided and brief veterinary foray into leased commercial stabling areas (cf. Anobile v Pelligrino, 303 F3d 107, 120-121 [2d Cir 2001] [administrative search warrant exception inapplicable to search of race-track dormitories used as residences]) with the object, not of discovering evidence of criminal activity (cf. People v Scott, 79 NY2d 474 [1992]), but of sampling, exclusively for regulatory enforcement purposes, the blood and urine of a specifically identified racehorse. The horse farm owner has, by hypothesis, leased stable space to respondent’s licensee for the habitation of a racehorse and, in so doing, must have understood that the horse would from time to time be attended at the stable by a veterinarian. We do not think that such a visit, particularly when conducted in accordance within a duly constraining regulatory framework, will generally implicate a privacy interest triggering the requirement of a warrant or prior consent by the stable owner.

In sum, we hold no more than that respondent possesses the power to promulgate rules mandating warrantless, out-of-competition equine testing for proscribed doping agents. Accordingly, the order of the Appellate Division should be affirmed, with costs.

Judges Read, Smith, Pigott, Rivera and Abdus-Salaam concur.

Order affirmed, with costs.

      . A separate rule providing for out-of-competition drug testing of thoroughbred racehorses (9 NYCRR 4043.12) has not been challenged.

      . Indeed, we are advised that a new petition challenging the amended OCTR has only just been served.

      . For example, although in Matter of Laterza v New York State Racing & Wagering Bd. (68 AD3d 1509 [3d Dept 2009]), race day sampling was, after a series of complex and extremely expensive laboratory procedures, successfully used to establish that protein-based doping agents had at some point, perhaps near in time to the race, been given the animal, the case cannot be cited as instancing a present capability reliably to detect the relatively remote administration of such doping agents.

      . These statutes were amended in 2012 (L 2012, ch 60) to effect the merger of respondent New York State Racing and Wagering Board into the State Gaming Commission. This matter has been litigated on the basis of the statutes as they read at the time of the original OCTR’s promulgation and we, accordingly, quote the statutes as they read before their amendment. The pre- and post-amendment versions do not, in any event, differ in respects material to the substantive issues presently raised.

      . The “foregoing” here refers to the statute’s first subdivision, which says:
      “1. Pursuant to the provisions of sections two hundred twenty-two through seven hundred five of this chapter, the state racing and wagering board shall have power to supervise generally all harness race meetings in this state at which pari-mutuel betting is conducted. The board may adopt rules and regulations not inconsistent with sections two hundred twenty-two through seven

        hundred, five of this chapter to carry into effect its purposes and provisions and to prevent circumvention or evasion thereof” (emphasis supplied).

      . Although section 101 was repealed in 2012, after the rule at issue was promulgated, its relevant provisions were reenacted in Racing, Pari-Mutuel Wagering and Breeding Law § 104 (1), (4) and (19).

      . That horse racing and accompanying pari-mutuel wagering are closely regulated in New York and elsewhere has been often noted (see e.g. Anobile v Pelligrino, 303 F3d 107, 111 [2d Cir 2001]; Dimeo v Griffin, 943 F2d 679, 681 [7th Cir 1991]).


author: Smith, J.

text:
    [25 NE3d 914, 2 NYS3d 1]
    The People of the State of New York, Respondent, v Howard Grubstein, Appellant.
    Argued October 16, 2014;
    decided November 18, 2014

      POINTS OF COUNSEL

      Richard L. Herzfeld, P.C., New York City (Richard L. Herzfeld of counsel), for appellant.
    I. Appellant’s CPL article 440 application was not barred as his failure to take a direct appeal was not unreasonable. (People v Syville, 15 NY3d 391; People v Lard, 45 AD3d 1331; People v Hoffler, 74 AD3d 1632; People v Maraj, 44 AD3d 1090; People v West, 100 NY2d 23.) II. As the trial court failed to properly ensure that appellant understood the risks of proceeding pro se, appellant’s waiver was invalid as a matter of law and his motion to vacate was properly granted. (People v Mitchell, 61 NY2d 580; People v Crampe, 17 NY3d 469.)

      David M. Hoover, District Attorney, Middletown {Elizabeth L. Schulz and Andrew R. Kass of counsel), for respondent.
    The decision and order of the Appellate Term should be affirmed. (People v Cooks, 67 NY2d 100; People v Cuadrado, 9 NY3d 362; People v Degondea, 3 AD3d 148, 2 NY3d 798; People v Donovon, 107 AD2d 433, 65 NY2d 694; People v Berezansky, 229 AD2d 768, 89 NY2d 919; People v Angelakos, 70 NY2d 670; People v Hillriegel, 78 AD3d 1381; People v Acevedo, 104 AD3d 610; People v Chiu Mei Lan Kwok, 51 AD3d 814; People v Lagas, 49 AD3d 1025.)
   OPINION OF THE COURT

Smith, J.

We hold that a defendant who asserts that he was deprived of his right to counsel when he pleaded guilty pro se is not barred from raising that claim in a motion under CPL 440.10 by his failure to raise it on direct appeal.

In 2008, defendant pleaded guilty in Tuxedo Town Court to a misdemeanor charge of driving while intoxicated. He was not represented by counsel in the Town Court proceeding, was not advised of his right to appeal, and took no appeal. In 2010, having been arrested again for a similar offense, he was charged with a felony under Vehicle and Traffic Law § 1193 (1) (c) (i), applicable to a person who drives while intoxicated after having been convicted of such a crime within the preceding 10 years. He then moved in Town Court to withdraw his 2008 guilty plea.

Town Court granted the motion, concluding that defendant’s “waiver of counsel was not made knowingly or intelligently.” On the People’s appeal, the Appellate Term reversed, concluding that Town Court erred in deciding the merits of “certain of defendant’s claims” because “to the extent that adequate facts appeared in the record to evaluate” those claims “the only possible avenue of review was a direct appeal” (People v Grubstein, 37 Misc 3d 142[A], 2012 NY Slip Op 52285[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2012]). A Judge of this Court granted leave to appeal (21 NY3d 1015 [2013]), and we now reverse.

It is correct as a general matter that, when the record is sufficient to permit review of an issue on direct appeal, a defendant who either has not appealed his conviction or, having appealed, has failed to raise that issue is barred from later asserting it as a basis for post-conviction relief (see People v Cuadrado, 9 NY3d 362 [2007]). CPL 440.10 (2) (c) says:

“Notwithstanding the provisions of subdivision one, the court must deny a motion to vacate a judgment when: . . .
“(c) Although sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant’s unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him[.]”

But there is an obvious risk of unfairness in applying this procedural bar where the ground that the defendant seeks to raise is that he was deprived of his right to counsel. If he was indeed deprived of that right, that very deprivation may well have led him either not to appeal or not to have presented the issue to an appellate court. A defendant who has wrongly been deprived of a lawyer can hardly be blamed for failing to follow customary legal procedures.

Section 440.10 (2) (c) itself appears to recognize this problem, by making its bar applicable only where the failure to appeal, or the failure to raise a particular argument, is “unjustifiable.” The statute thus implies that such failures are sometimes justifiable, and an interference with the right to counsel that impaired the defendant’s ability to pursue appellate relief should normally be a sufficient justification. Here, the justification is made stronger by Town Court’s failure, at the time of the 2008 plea and sentence, to advise defendant of his right to appeal, though an applicable regulation requires that advice to be given when a defendant appears pro se (see 22 NYCRR 671.5).

Before the enactment of CPL article 440 New York courts recognized, in cases discussing the writ of error coram nobis, article 440’s common-law predecessor, that the usual procedural barriers to post-conviction relief must sometimes be relaxed when a violation of the right to counsel is claimed. “ ‘Judicial interference with the right to counsel guaranteed to defendant by law may warrant the extraordinary remedy of coram nobis, even though the error appears on the face of the record’ ” (People v Hannigan, 7 NY2d 317, 318 [1960, per curiam], quoting People v Silverman, 3 NY2d 200, 202 [1957]; see also People ex rel. Sedlak v Foster, 299 NY 291, 294 [1949]; Matter of Bojinoff v People, 299 NY 145, 152 [1949]; Matter of Hogan v Court of Gen. Sessions of County of N.Y., 296 NY 1, 9 [1946]). The limitation of CPL 440.10 (2) (c)’s procedural bar to cases of “unjustifiable” failure may be seen as a codification of the rule stated in those cases.

We conclude, in short, that defendant was not barred from raising his right to counsel claim in a CPL article 440 motion. We express no opinion on the merits of the claim.

Accordingly, the order of the Appellate Term should be reversed and the case remitted to the Appellate Term for consideration of issues raised but not determined on the appeal to that court.

Chief Judge Lippman and Judges Graffeo, Read, Pigott, Rivera and Abdus-Salaam concur.

Order reversed and case remitted to the Appellate Term, Ninth and Tenth Judicial Districts, for consideration of issues raised but not determined on the appeal to that court.