author: Read, J.

text:
    [963 NE2d 1241, 940 NYS2d 540]
    Leslie Kahn, Appellant, v New York City Department of Education et al., Respondents. In the Matter of Doreen Nash, Appellant, v The Board of Education of the City School District of the City of New York et al., Respondents.
    Argued January 11, 2012;
    decided February 14, 2012

      POINTS OF COUNSEL

      New York Civil Liberties Union Foundation, New York City (Adriana Piñon and Arthur Eisenberg of counsel), for appellant in the first above-entitled proceeding.
    The First Department’s decision conflicts with the text of CPLR article 78, with this Court’s precedent interpreting that text, and with sound public policy. (Matter of Essex County v Zagata, 91 NY2d 447; Watergate II Apts, v Buffalo Sewer Auth., 46 NY2d 52; Matter of Plummer v Klepak, 48 NY2d 486; Church of St. Paul & St. Andrew v Barwick, 67 NY2d 510; Walton v New York State Dept. of

      Correctional Servs., 8 NY3d 186; Matter of Best Payphones, Inc. v Department of Info. Tech. & Telecom, of City of N.Y., 5 NY3d 30; Stop-The-Barge v Cahill, 1 NY3d 218; Matter of Andersen v Klein, 50 AD3d 296; Matter of Strong v New York City Dept. of Educ., 62 AD3d 592, 14 NY3d 704; Matter of Lipton v New York City Bd. of Educ., 284 AD2d 140.)

      Michael A. Cardozo, Corporation Counsel, New York City (Julian L. Kalkstein and Larry A. Sonnenshein of counsel), for respondents in the first above-entitled proceeding.
    I. Petitioner’s CPLR article 78 proceeding, challenging the termination of her probationary employee status, sought to vindicate petitioner’s personal interests and not a public interest. Therefore, petitioner’s action was barred by her failure to file a notice of claim pursuant to Education Law § 3813 (1). (C.S.A. Contr. Corp. v New York City School Constr. Auth., 5 NY3d 189; Zurich Am. Ins. Co. v Ramapo Cent. School Dist., 63 AD3d 729; Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539; Ruocco v Doyle, 38 AD 2d 132; Matter of Cayuga-Onondaga Counties Bd. of Coop. Educ. Seros, v Sweeney, 89 NY2d 395; Union Free School Dist. No. 6 of Towns of Islip & Smithtown v New York State Human Rights Appeal Bd., 35 NY2d 371, 36 NY2d 807; Matter of Silvernail v Enlarged City School Dist. of Middletown, 40 AD3d 1004; Mills v County of Monroe, 59 NY2d 307, 464 US 1018; Sandak v Tuxedo Union School Dist. No. 3, 308 NY 226; Matter of Frasier v Board of Educ. of City School Dist. of City of N.Y., 71 NY2d 763.) II. The Appellate Division properly found that petitioner’s CPLR article 78 proceeding challenging her termination from her probationary position with the Department of Education was barred by the expiration of the four-month statute of limitations set by CPLR 217. (Matter of Lubin v Board of Educ. of City of N.Y., 60 NY2d 974, 469 US 823; Matter of Cappellino v Town of Somers, 83 AD3d 934; Matter of Strong v New York City Dept. of Educ., 62 AD3d 592; Matter of Andersen v Klein, 50 AD3d 296; Matter of Triana v Board of Educ. of City School Dist. of City of N.Y., 47 AD3d 554; Matter of Lipton v New York City Bd. of Educ., 284 AD2d 140; Matter of Frasier v Board of Educ. of City School Dist. of City of N.Y., 71 NY2d 763; Matter of Venes v Community School Bd. of Dist. 26, 43 NY2d 520; Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774; Board of Educ., Bellmore-Merrick Cent. High School Dist., Nassau County v Bellmore-Merrick United Secondary Teachers, 39 NY2d 167.)

      Keith J. Gross, New York City, and Richard E. Casagrande for New York State United Teachers, amicus curiae in the first above-entitled proceeding.
    I. The four-month statute of limitations mandated by CPLR 217 should run from the date a probationary pedagogue receives the Chancellor’s determination after administrative review. (Matter of Frasier v Board of Educ. of City School Dist. of City of N.Y., 71 NY2d 763; Matter of Sapadin v Board of Educ. of City of N.Y., 246 AD2d 359; Matter of Lipton v New York City Bd. of Educ., 284 AD2d 140; Matter of Triana v Board of Educ. of City School Dist. of City of N.Y., 47 AD3d 554; Matter of Strong v New York City Dept. of Educ., 62 AD3d 592.) II. It is judicially efficient and fair to commence the statute of limitations from the date the pedagogue receives the Chancellor’s determination after administrative review. III. Commencing the statute of limitations at different points for challenges to U-ratings and discontinuances is impractical and prejudicial. (Matter of Andersen v Klein, 50 AD3d 296; Matter of Mateo v Board of Educ. of City of N.Y., 285 AD2d 552; Matter of Bonilla v Board of Educ. of City of N.Y., 285 AD2d 548.)

      Charity M. Guerra, Council of School Supervisors & Administrators, Brooklyn, for Council of School Supervisors and Administrators, amicus curiae in the first above-entitled proceeding.
    This case presents an important issue regarding ripeness that this Court should decide both for this litigant and to clarify the rule of law. (Watergate II Apts, v Buffalo Sewer Auth., 46 NY2d 52; Matter of Cantres v Board of Educ. of City of NY., 145 AD2d 359; Matter of Biondo v New York State Bd. of Parole, 60 NY2d 832; Mundy v Nassau County Civ. Serv. Commn., 44 NY2d 352; Matter of Chaban v Board of Educ. of City of NY., 201 AD2d 646; Walton v New York State Dept. of Correctional Servs., 8 NY3d 186; Matter of Frasier v Board of Educ. of City School Dist. of City of N.Y., 71 NY2d 763; Matter of Edmead v McGuire, 67 NY2d 714; Matter of Sneed v Hammons, 242 AD2d 509; Matter of Schulman v Board of Educ. of City of N.Y., 184 AD2d 643.)

      Keith J. Gross, New York City, and Richard E. Casagrande for appellant in the second above-entitled proceeding.
    I. The four-month statute of limitations mandated by CPLR 217 runs from the date a probationary pedagogue receives the Chancellor’s determination after administrative review. (Matter of Frasier v Board of Educ. of City School Dist. of City of N.Y., 71 NY2d 763; Matter of Wilborn v Starr, 58 AD2d 785; Kroboth v Sexton, 160 AD2d 126; Matter of Sapadin v Board of Educ. of City of N.Y., 246 AD2d 359; Matter of Lipton v New York City

      Bd. of Educ., 284 AD2d 140; Matter of Triana v Board of Educ. of City School Dist. of City of N.Y., 47 AD3d 554; Matter of Strong v New York City Dept. of Educ., 62 AD3d 592; Matter of Eldaghar v New York City Hous. Auth., 34 AD3d 326; Matter of Buffalo Audio Ctr. Arrolite Co. v Union Free School Dist. No. 1, 29 Misc 2d 871, 15 AD2d 991; Matter of Cosmopolitan Catering Corp. v Hostetter, 42 Misc 2d 714.) II. It is judicially efficient and fair to commence the statute of limitations from the date the pedagogue receives the Chancellor’s determination after administrative review. (Matter of Community School Bd. Nine v Crew, 224 AD2d 8, 89 NY2d 807; Matter of Frasier v Board of Educ. of City School Dist. of City of N.Y., 71 NY2d 763.) III. Commencing the statute of limitations at different points for challenges to U-ratings and discontinuances is impractical and prejudicial to pedagogues. (Matter of Andersen v Klein, 50 AD3d 296; Matter of Mateo v Board of Educ. of City of N.Y., 285 AD2d 552; Matter of Bonilla v Board of Educ. of City of N.Y., 285 AD2d 548.)

      Michael A. Cardozo, Corporation Counsel, New York City (Julian L. Kalkstein, Susan B. Eisner, Stephen J. McGrath and Daniel Gomez-Sanchez of counsel), for respondents in the second above-entitled proceeding.
    The Appellate Division properly found that petitioner’s CPLR article 78 proceeding challenging the discontinuance of her probationary service as a school secretary with the Department of Education was barred by the expiration of the four-month statute of limitations set by CPLR 217. (Matter of Yarbough v Franco, 95 NY2d 342; Matter of De Milio v Borghard, 55 NY2d 216; New York State Assn. of Counties v Axelrod, 78 NY2d 158; Matter of Robertson v Board of Educ. of City of N.Y., 175 AD2d 836; Matter of Lubin v Board of Educ. of City of N.Y., 60 NY2d 974, 469 US 823; Matter of Frasier v Board of Educ. of City School Dist. of City of N.Y., 71 NY2d 763; Matter of Strong v New York City Dept. of Educ., 62 AD3d 592, 14 NY3d 704; Matter of Andersen v Klein, 50 AD3d 296; Matter of Schulman v Board of Educ. of City of N.Y., 184 AD2d 643; Matter of Jones v Board of Educ. of City of N.Y., 159 AD2d 506.)
   OPINION OF THE COURT

Read, J.

These cases call upon us to decide whether petitioners Leslie Kahn and Doreen Nash (collectively, petitioners) were required to exhaust an available internal appeal procedure before challenging the termination of their probationary employment at the City of New York’s Department of Education (the Department or DOE). The Department is obligated by its collective bargaining agreement (CBA) with the United Federation of Teachers and its own bylaws to afford probationary employees the opportunity for reconsideration of a decision to discontinue their employment.

We hold that DOE’s decisions were “final and binding” within the meaning of CPLR 217 (1) as of the dates when Kahn’s and Nash’s probationary service ended, January 25, 2008 and July 15, 2005, respectively. Petitioners awaited the outcome of the internal reviews provided for under the CBA and DOE’s bylaws before commencing suit. But these reviews “stem[ ] solely from the [CBA]” and constitute “an optional procedure under which a teacher may ask [DOE] to reconsider and reverse [its] initial decision, . . . which is final and which, when made, in all respects terminates the employment of a probationer under Education Law § 2573 (1) (a)” (Matter of Frasier v Board of Educ. of City School Dist. of City of N.Y., 71 NY2d 763, 767 [1988] [emphases added]); they are not administrative remedies that petitioners were required to exhaust before litigating the termination of their probationary employment. As a result, petitioners’ lawsuits, brought more than four months after the dates when their probationary service ended, are time-barred.

I.

Kahn

On February 1, 2005, Kahn began her. three-year probationary period of employment at DOE as a social worker at the Williamsburg High School for Architecture and Design. In June 2007, she accepted a position as a social worker at Khalil Gibran International Academy. On December 17, 2007, Gibran’s interim principal issued an observation report in which she evaluated Kahn’s counseling session with students on December 12, 2007 as unsatisfactory. On December 19, 2007, the principal also rated Kahn’s performance as unsatisfactory in an annual professional performance review, and recommended denial of completion of probation. Then on December 21, 2007, the community superintendent informed Kahn that, in accordance with Education Law § 2573 (1), she was denying her certification of completion of probation; that under the terms of the CBA between DOE and the bargaining unit of which Kahn was a member she was “entitled to the review procedures . . . prescribed” in article 4 of the Department’s bylaws; and that her service pursuant to her appointment would “terminate as of close of business January 25, 2008.”

Section 4.3.2 of DOE’s bylaws (formerly section 5.3.4), entitled “Appeals re Discontinuance of Probationary Service” provides that

“[a]ny person in the employ of the City School District who appears before the Chancellor, or a committee designated by the Chancellor, concerning the discontinuance of service during the probationary term, or at the expiration thereof, shall have a review of the matter before a committee which shall be designated in accordance with contractual agreements covering employees or by regulations of the Chancellor, as appropriate.
“After the review, the committee shall forward its advisory recommendation to the community superintendent or to the Chancellor in accordance with contractual agreements.”

Under section 4.3.3, the employee is entitled to appear in person at the hearing, accompanied by an advisor; to be confronted by and call witnesses; and to examine exhibits and introduce relevant evidence. The CBA calls for the section 4.3.2 review to be conducted by a tripartite committee of professional educators, with one selected by the teacher, one by DOE and the third by the other two from an agreed-upon list.

On January 3, 2008, Kahn initiated the section 4.3.2 review by notifying the Department’s Office of Appeals and Reviews that she requested an appeal; she checked only the box labeled “Discontinuance” as a reason for her appeal. The committee held a hearing on April 9, 2008. By a vote of 2-1, the committee recommended “non-concurrence” with the decision to discontinue Kahn’s probationary service. The director of the Office of Appeals and Reviews forwarded the committee’s confidential advisory report to the community superintendent on April 16, 2008, advising her to review the report and examine the record, and notify Kahn in writing of her decision either to reaffirm or reverse the discontinuance of Kahn’s probationary service. On May 9, 2008, the superintendent informed Kahn that she “reaffirmed the previous action which resulted, in Denial of Certification of Completion of Probation effective close of business on January 25, 2008.”

On September 9, 2008, exactly four months later, Kahn commenced this CPLR article 78 proceeding against DOE, the Chancellor and the interim principal at Gibran (collectively, DOE). In her amended petition, dated November 17, 2008, Kahn claimed that the principal’s observation of the counseling session was deficient because not “made in consultation with an ‘in-discipline’ Social Work Supervisor [possessing] a clinical license,” as required by the CBA; and that the principal’s deficient observation and inaccurate assessment of her record of attendance and punctuality caused DOE to terminate her employment, which also effectively barred her from any future job in the New York City school system.

Kahn alleged two “causes of action”: that DOE failed to perform duties enjoined by law and acted in an arbitrary and capricious manner in violation of CPLR article 78; and that DOE violated the due process clauses of the federal and state constitutions and 42 USC § 1983 by “providing [Kahn] with an unsatisfactory rating [and in] terminating [her] in a manner that did not comport with fair processes.” She principally sought orders vacating DOE’s decisions resulting in the unsatisfactory rating and termination of her employment; permitting her to “resume her status” as a probationary DOE employee; and directing that any further evaluations of her performance comply with the CBA’s requirements governing her position.

On January 12, 2009, DOE cross-moved to dismiss the petition. The Department argued that Kahn’s claims were precluded by her failure to file a notice of claim as required by Education Law § 3813 (l); that the proceeding was barred by expiration of CPLR 217 (l)’s four-month statute of limitations; that to the extent Kahn challenged her unsatisfactory rating, she had not exhausted her administrative remedies; and that her petition did not state a cause of action under section 1983 because she had not been deprived of any property or liberty interest.

Supreme Court denied DOE’s cross motion in a decision and order dated September 8, 2009 (26 Misc 3d 366 [NY County 2009]). The judge ruled that because Kahn was seeking equitable relief rather than money damages, Education Law § 3813 (1) did not mandate a timely notice of claim as a prerequisite to her lawsuit (id. at 370-373); that her claims under section 1983 were timely and pleaded sufficiently to survive a motion to dismiss (id. at 380-383); and that “any failure by [Kahn] to exhaust any administrative remedies available in connection with the U-Rating” should be excused because “[t]o the extent the December 21 decision was made in partial reliance on the U-Rating, [Kahn] fully addressed the rating at the Chancellor’s hearing regarding her termination” (id. at 381).

The bulk of Supreme Court’s decision addressed what the judge called “the challenging issue of determining the precise reach” of Frasier (id. at 368). She acknowledged that the First and Second Departments had consistently interpreted Frasier to mean that “an Article 78 proceeding commenced by a probationary teacher more than four months after the discharge” was untimely (id. at 375, citing Matter of Schulman v Board of Educ. of City of N.Y., 184 AD2d 643, 644 [2d Dept 1992] [“There is no merit to the petitioner’s argument that the review of this administrative determination (to terminate his probationary employment) served to extend the four month limitations period”]; Matter of Strong v New York City Dept. of Educ., 62 AD3d 592, 593 [1st Dept 2009] [“Petitioner’s time to commence the (CPLR article 78) proceeding was not extended by her administrative appeal of (the) determination” to terminate her probationary employment as a per diem substitute teacher]; Matter of Triana v Board of Educ. of City School Dist. of City of N.Y., 47 AD3d 554, 557 [1st Dept 2008] [“The law is well established that a decision to terminate the employment of a probationary teacher is final and binding on the date the termination becomes effective, and this is true even in circumstances where administrative review is available”] [citations omitted]; and Matter of Lipton v New York City Bd. of Educ., 284 AD2d 140, 140-141 [1st Dept 2001] [“Petitioner’s claim that the termination of her probationary employment was invalid because she was, in fact, a tenured employee was properly dismissed on the ground that the instant CPLR article 78 proceeding was not brought within four months of (the Chancellor’s) letter advising petitioner of the termination of her probationary employment”]).

But Supreme Court criticized these interpretations as based upon “no discussion at all,” featuring “sweeping statements]” that imbued Frasier with “a meaning . . . never intended” by the Court of Appeals (26 Misc 3d at 375). The judge distinguished Frasier on the ground that it involved back pay rather than reinstatement, and did not mention CPLR 217 (1); she considered the appellate courts’ interpretation of Frasier to create an anomaly because, in her view, “[t]he law [was] clear that an employee’s appeal of a U-Rating, made with or without an appeal of a discontinuance, [would] stay the running of the statute of limitations as to the issue of the U-Rating” (id. at 378). Further, the judge opined that “language in Frasier itself suggests” that we meant that decision to be “a limited one,” not covering situations where there was “a statutory or constitutional violation or procedural defect” as is potentially the case here, where Kahn “assert[ed] a statutory violation in that she was denied 60 days’ advance notice before her termination as required by Education Law § 2573 (1) (a),” and “also claim[ed] that her rights under the [CBA] were violated in that the Committee considered a U-Rating issued by the principal without the participation of a social work supervisor” (id. at 379). While “respectfully urg[ing] the First Department to take a second look at Frasier” (id. at 373), Supreme Court concluded that Kahn’s CPLR article 78 proceeding was timely because brought within four months of the May 9, 2008 letter from the community superintendent, which reaffirmed the earlier decision to deny Kahn certification of completion of probation.

On October 28, 2009, prior to answering Kahn’s amended petition, DOE moved for leave to appeal Supreme Court’s decision denying its motion to dismiss. On November 23, 2009, Kahn cross-moved to amend her petition again, principally to include the committee’s confidential advisory report, which had become available to her during the course of the litigation; she opposed DOE’s motion for leave to appeal. On December 23, 2009, Supreme Court granted DOE’s motion and Kahn’s cross-motion, and stayed the proceeding until the Appellate Division handed down its decision. The judge noted that “[although the appellate courts typically do not review interim orders in Article 78 proceedings, the issues raised”—particularly “whether the proceeding was time-barred based on [Frasier] and its progeny”—were “significant ones which . . . merit[ed] the attention of the Appellate Division at this time.”

In December 2010, the Appellate Division unanimously reversed Supreme Court’s September 8, 2009 order and granted DOE’s motion to dismiss the petition (79 AD3d 521 [1st Dept 2010]). While agreeing with the lower court that Kahn did not need to comply with Education Law § 3813 (1), the court concluded that her lawsuit was nonetheless barred by CPLR 217 (1) because “[a] petition to challenge the termination of probationary employment on substantive grounds must be brought within four months of the effective date of termination,” and “[t]he time to commence such a proceeding is not extended by the . . . pursuit of administrative remedies” (id. at 522). In addition, the Appellate Division noted that while the notice of termination was procedurally defective because Kahn was not given the 60 days’ prior notice required by Education Law § 2573 (1) (a), “that defect [did] not invalidate the discontinuance or render the statute of limitations inapplicable; at best, it would have entitled [Kahn] to additional back pay, had she served a notice of claim and sought money damages” (id.).

Finally, the Appellate Division concluded that Kahn did not have a valid claim under section 1983 because, as a probationary employee, she did not have a property interest in her position; the “process provided for in the collective bargaining agreement did not create” one; and she was not deprived of a liberty interest (id. at 523). We subsequently granted Kahn leave to appeal (16 NY3d 709 [2011]), and now affirm.

Nash

Nash began her probationary service at DOE on September 3, 2002 in a secretarial position. After two years at Intermediate School 191, she transferred to Brooklyn Technical High School, where she was assigned to be a pupil accounting secretary. In May 2005, Brooklyn Technical’s principal evaluated Nash’s performance as unsatisfactory in her annual professional performance review for the 2004-2005 school year. On June 15, 2005, the principal indicated on the performance review form that he recommended discontinuance of Nash’s probationary service; and on June 17, 2005, the local instructional superintendent noted likewise on the form. Additionally, on June 15, 2005 the superintendent informed Nash that on July 15, 2005, he would “review and consider whether [her] services as a probationer [should] be discontinued and [her] license terminated as of close of business July 15, 2005.” He added that his consideration of termination and discontinuance was based on her unsatisfactory rating, and offered her the opportunity to submit a written response thereto no later than July 8, 2005. On June 16, 2005, Nash notified the Office of Appeals and Reviews that she sought section 4.3.2 review; she checked the box labeled “C-31 and Discontinuance/Denial of Completion of Probation” on the form.

Then on July 15, 2005, the local instructional superintendent notified Nash that “after consideration and review of all appropriate documentation,” he “affirm[ed] [her] Discontinuance of Probationary Service and license termination effective close of business July 15, 2005.” He further informed her that, in accordance with Chancellor’s Regulation C-31 and the CBA, she had the right to appeal the decision to the Office of Appeals and Reviews within 15 school days of the date of the letter; and that her Social Security number would be placed on the inquiry list.

The committee held a hearing on May 10, 2006. By a vote of 3-0, the committee recommended “non-concurrence” with the decision to discontinue Nash’s probationary service. On May 14, 2008, almost exactly two years later, the superintendent of Brooklyn High Schools wrote Kahn to “ reaffirm [ ] the previous actions which resulted in Discontinuance of Probationary Service effective close of business July 18, 2005.”

On August 13, 2008, Nash filed a notice of claim pursuant to Education Law § 3813 (1), and on September 10, 2008, she commenced this CPLR article 78 proceeding against the Board of Education and the Chancellor (collectively, DOE). In her amended petition, filed December 23, 2008, Nash alleged that DOE violated section 4.3.3 of its bylaws by furnishing her with a deficient notice of hearing, and not producing at the hearing the principal who recommended that she be let go; that DOE’s alleged failure to abide by its own bylaws, Chancellor’s Regulation C-31 and the CBA and to present credible evidence resulted in an arbitrary and capricious determination in violation of lawful procedure; and that DOE’s failure to follow the committee’s recommendation, which was supported by substantial evidence, was arbitrary and capricious. She sought an order and judgment declaring that the hearing and determination to uphold the termination of her probationary employment were arbitrary, capricious and contrary to law, and directing her reinstatement to her former position, with back pay and interest.

On January 16, 2009, DOE cross-moved to dismiss the amended petition on the grounds that Nash’s claims for reinstatement and back pay were time-barred by CPLR 217 (1) because she did not sue within four months of the effective date of the termination of her probationary employment; and that insofar as she sought to review the unsatisfactory rating that she received for the 2004-2005 school year, she had not exhausted mandatory administrative and contractual remedies.

In a decision, order and judgment dated October 21, 2009, Supreme Court denied Nash’s petition and dismissed the proceeding as time-barred (2009 NY Slip Op 32531[U] [NY County 2009]). Citing Frasier and Triana, the judge held that “Nash’s pursuit of a review hearing and reconsideration of the discontinuance by the Chancellor’s committee [did] not extend or toll the four-month statutory limitations period” in CPLR 217 (1); and that “[t]he request for review, pursuant to Bylaws § 4.3.2, [was] nothing more than a request for reconsideration of the original determination to discontinue [her] probationary employment” (id. at *7). In Supreme Court’s view and “contrary to Nash’s strenuous argument, characterizing this proceeding as solely a challenge to the 2008 Chancellor’s reaffirmation of the 2005 decision [did] not render timely the demands for reinstatement and back pay” (id.).

As for Nash’s challenge of her unsatisfactory rating, Supreme Court concluded that she had exhausted her administrative remedies because her “request for a hearing to review a discontinuance based on a U-rating necessarily encompassed a review of that rating” (id. at *8). But the judge found no merit in Nash’s objections to the way the hearing was conducted, noting that the committee voted 3-0 in her favor.

In March 2011, the Appellate Division unanimously affirmed (82 AD3d 470 [1st Dept 2011]). The court held that to the extent that Nash disputed the loss of her job at DOE, her claim was time-barred under CPLR 217 (1) because “a petition to challenge the termination of probationary employment must be brought within four months of the effective date of termination, during which time the termination is deemed to become final and binding, and a petitioner’s pursuit of administrative remedies does not toll the four-month statute of limitations” (id.). The Appellate Division further observed that “[t]he reconsideration of the matter by [the] committee did not amount to a ‘fresh look’ at the merits so as to renew the running of the statute of limitations” (id. at 471). Finally, the court agreed with Supreme Court that Nash’s lawsuit was timely insofar as she challenged the unsatisfactory rating, and that she had exhausted her administrative remedies with respect to the rating. We subsequently granted Nash leave to appeal (17 NY3d 704 [2011]), and now affirm.

II

The petitioner in Frasier, a probationary teacher in the New York City school system, was notified in writing by the Chancellor that his probationary appointment was terminated as of September 4, 1984. Frasier sought review of this adverse decision, utilizing the procedures established by section 5.3.4 of the Board of Education’s bylaws and the CBA. As noted earlier, this appeal process is essentially identical to the present-day section 4.3.2 review. After the review’s completion, the Chancellor notified Frasier that he was reversing his earlier determination and reinstating him to probationary status. Frasier then sought back pay and benefits for the period of time between the termination of his employment on September 4, 1984 and his subsequent reinstatement on March 25, 1985.

We framed the issue presented as “whether the Chancellor’s original action terminated [Frasier’s] rights as a probationary appointee under Education Law § 2573 (1) (a) as of September 4, 1984, or whether, as petitioner claims . . . , that action was nonfinal and ineffective until completion of the review procedure” (Frasier, 71 NY2d at 765). We concluded that the original action terminating Frasier’s probationary employment was, in fact, final and effective and, as a result, Frasier was not entitled to back pay and benefits.

We observed that “[unquestionably, a Board of Education, under Education Law § 2573 (1) (a),”—and, in New York City, the Chancellor—“has the right to terminate the employment of a probationary teacher at any time and for any reason, unless the teacher establishes that the termination was for a constitutionally impermissible purpose, violative of a statute, or done in bad faith” (id.). Additionally, “[f]rom the language of Education Law § 2573 (1) (a), it [was] evident that a decision not to grant tenure to a probationary teacher, once made, [was] intended to be final” as “[t]he statute contains no provision for reconsideration or review or for reinstatement of a discontinued probationary appointee” (id. at 766).

We recognized, though, that a “question remain[ed]” as to “whether anything in the review procedure established in the bylaws . . . [made] the Chancellor’s original decision on discontinuance nonfinal” (id. at 766-767). Answering this question in the negative, we concluded that the internal review procedure established in the bylaws “in no way pertain[ed] to the finality of the Chancellor’s decision,” but rather was “procedural only”; in short,

“[probationary teachers have no constitutional or statutory right to a review of the Chancellor’s decisions to discontinue their services and to deny tenure. Their right to a review stems solely from the [CBA]. Section 5.3.4 [now section 4.3.2] does no more than establish an optional procedure under which a teacher may ask the Chancellor to reconsider and reverse his initial decision, a decision which is final and which, when made, in all respects terminates the employment of a probationer under Education Law § 2573 (1) (a)” (id. at 767 [citations omitted and emphases added]).

Thus in Frasier, we concluded that a probationary teacher in the New York City public school system who was let go from his job but then later reinstated after completion of the optional internal review was not entitled to back pay and benefits for the period he was out of work. The principal take-away from the decision, though, is not this conclusion, but rather the reason for it; namely, that the original decision to discontinue Frasier’s employment was in all respects final as of the day his probationary appointment ended and was therefore not dependent upon exhaustion of the internal review to become effective. Because a determination pursuant to Education Law § 2573 (1) (a) to discontinue a probationary employee’s service becomes final and binding on that employee on his or her last day at work—as Frasier holds—CPLR 217 (1) dictates that any suit to challenge the determination must be commenced within four months after that date.

Petitioners understandably insist that the internal review created by the CBA and DOE’s bylaws must be exhausted before suit may be brought under CPLR article 78 to challenge a determination made pursuant to Education Law § 2573 (1) (a) to discontinue a probationary employee’s service. After all, otherwise their actions are untimely. But this position is not consistent with our decision in Frasier, as explained in this writing and as the First and Second Departments have repeatedly held (see also Matter of De Milio v Borghard, 55 NY2d 216 [1982] [where a probationary county employee brought a CPLR article 78 proceeding to challenge the commissioner’s decision to terminate his employment, the four-month limitations period began to run from the date the employee’s employment ended, not from the date when the commissioner denied his request for reconsideration of the decision to discharge him]).

Further, the ruling that petitioners seek would not, in our view, benefit probationary teachers and teaching staff generally. The grounds for overturning DOE’s decision to let a probationary employee go during the probationary period are limited indeed. But under petitioners’ theory, someone with a potentially meritorious claim would have to await the conclusion of the internal review—which surely would take months and might take years—before seeking redress in court. In the meantime, this individual would not be getting paid and, as Frasier establishes, has no right to back pay if eventually reinstated.

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

Chief Judge Lippman and Judges Cipajrick, Graffeo, Smith, Pigott and Jones concur.

In each case: Order affirmed, with costs.

      . This form letter stated simply “I hereby request an appeal for the following reason[ ](s): Check appropriate category(ies)” and identified the following four choices: “U” Rating; C-31; C-31 and “U” Rating; and Discontinuance. C-31 apparently refers to Chancellor’s Regulation C-31, which sets forth procedures to be followed to terminate New York City licenses of untenured pedagogical employees. was presented to the governing body of said district or school within three months after the accrual of such claim, and that the officer or body having the power to adjust or pay any said claim has neglected or refused to make an adjustment or payment thereof for thirty days after presentment.”

      . Section 3813 (1) of the Education Law states that
      “[n]o action or special proceeding, for any cause whatever ... or claim against the district or any such school, or involving the rights or interests of any district or any such school shall be prosecuted or maintained against any school district, board of education ... or any officer of a school district[ or] board of education . . . unless it shall appear by and as an allegation in the complaint or necessary moving papers that a written verified claim upon which such action or special proceeding is founded

      . Appeals of unsatisfactory ratings are governed by section 4.3.1 of DOE’s bylaws. This provision, which is not worded the same as section 4.3.2, specifies that the committee’s findings and recommendations “shall be submitted to the Chancellor for a final decision.”

      . Kahn does not appear to mention the lack of 60 days’ notice in her amended petition or motion papers. Where a probationary teacher or other member of the teaching staff is not recommended for tenure, the superintendent must issue written notice of that decision no later than 60 days before the probationary period (with exceptions, three years) ends (Education Law § 2573 [1] [a]). We have held that the remedy for noncompliance with this notice provision is “one day’s pay for each day the notice was late” (Matter of Tucker v Board of Educ., Community School Dist. No. 10, 82 NY2d 274, 278 [1993]; see also Matter of Vetter v Board of Educ., Ravena-Coeymans-Selkirk Cent. School Dist., 14 NY3d 729 [2010]).

      . Kahn does not appeal the Appellate Division’s ruling with respect to her section 1983 claim.

      . That same day, Nash also filed a form to waive the one-year limitation for review of her appeal of the adverse rating she received from the principal on June 15, 2005.

      . The form identified the following four choices: “U” Rating; C-31; C-31 and “U” Rating; and “C-31 and Discontinuance/Denial of Completion of Probation,” the option selected by Nash.

      . The date of July 18, 2005 appears to be a typographical error; there is no dispute that Nash’s probationary service ended on July 15, 2005.

      . DOE did not contest the timeliness of the notice of claim that Nash filed pursuant to Education Law § 3813 (1).

      . In light of our disposition of this appeal, we need not reach and express no opinion as to whether a plaintiff or petitioner who seeks only equitable relief from DOE must comply with the notice-of-claim provisions in Education Law § 3813 (1) as a precondition to suit.


source: Caselaw Access Project

author: Pigott, J.

license: Public Domain

text:
    [964 NE2d 396, 941 NYS2d 25]
    Regional Economic Community Action Program, Inc., Appellant, v Enlarged City School District of Middletown, Respondent.
    Argued January 4, 2012;
    decided February 16, 2012

      POINTS OF COUNSEL

      James G. Sweeney, P.C., Goshen (James G. Sweeney of counsel), for appellant.
    I. The “voluntary payment” rule should be abandoned, at least in the context of this case. (Peyser v Mayor of City of N.Y., 70 NY 497; Tripler v Mayor of City of N.Y., 125 NY 617; Matter of Trustees of Vil. of Delhi, 201 NY 408; Adrico Realty Corp. v City of New York, 250 NY 29; Municipal Metallic Bed Mfg. Corp. v Dobbs, 253 NY 313; People v Marrero, 69 NY2d 382; Mercury Mach. Importing Corp. v City of New York, 3 NY2d 418; Five Boro Elec. Contrs. Assn. v City of New York, 12 NY2d 146; Paramount Film Distrib. Corp. v State of New York, 30 NY2d 415; City of Rochester v Chiarella, 58 NY2d 316.) II. The Enlarged City School District of Middletown stands in the stead of the City of Middletown and is bound by Regional Economic Community Action Program, Inc.’s claim against the City. (Xerox Corp. v Town of Webster, 131 Misc 2d 817; Center v Hampton Affiliates, 66 NY2d 782; People ex rel. Wessell, Nickel & Gross v Craig, 236 NY 100; Corporate Prop. Invs. v Board of

      Assessors of County of Nassau, 153 AD2d 656; Matter of Tennessee Gas Pipeline Co. v Town of Chatham Bd. of Assessors, 239 AD2d 831.) III. The letter of protest received by the Enlarged City School District of Middletown was sufficient to apprise it of Regional Economic Community Action Program, Inc.’s challenge. (Corporate Prop. Invs. v Board of Assessors of County of Nassau, 153 AD2d 656; Nassau Ins. Co. v Murray, 46 NY2d 828.) IV The Enlarged City School District of Middletown’s other defenses fail. (Matter of New York State Assn. of Criminal Defense Lawyers v Kaye, 96 NY2d 512; Niagara Mohawk Power Corp. v City School Dist. of City of Troy, 59 NY2d 262; Matter of First Natl. City Bank v City of N.Y. Fin. Admin., 36 NY2d 87; Matter of City of White Plains v City of New York, 63 AD2d 396, 46 NY2d 707; Jenad, Inc. v Village of Scarsdale, 35 Misc 2d 450; Matter of Castaways Motel v Schuyler, 24 NY2d 120; People v Lo Cicero, 14 NY2d 374.)

      Donoghue, Thomas, Auslander & Drohan, LLP, Hopewell Junction (Daniel Petigrow and Neelanjan Coudhury of counsel), for respondent.
    I. Assuming Regional Economic Community Action Program, Inc. paid its taxes to the Enlarged City School District of Middletown under protest, it is barred from maintaining this action under the one-year statute of limitations dictated by Education Law § 3813 (2-b). (Matter of First Natl. City Bank v City of N.Y. Fin. Admin., 36 NY2d 87; Board of Educ. of Cold Spring Harbor Cent. School Dist. v Rettaliata, 181 AD2d 648; Matter of Scarborough School Corp. v Assessor of Town of Ossining, 97 AD2d 476; World Plan Executive Council-U. S. v Town of Fallsburg, 92 AD2d 1047; Kahal Bnei Emunim & Talmud Torah Bnei Simon Israel v Town of Fallsburg, 159 Misc 2d 1045; K. Capolino Design & Renovation v Assessors of City of Yonkers, 138 Misc 2d 811; North Salem Cent. School Dist. v Mahopac Cent. School Dist., 1 AD3d 418; Bias Limud Torah v County of Sullivan, 290 AD2d 856, 305 AD2d 972; Lancaster Towers Assoc. v Assessor of Town of Lancaster, 259 AD2d 1001; Matter of Amorosi v South Colonie Ind. Cent. School Dist., 9 NY3d 367.) II. In the absence of any evidence that Regional Economic Community Action Program, Inc. protested its tax payments, the Enlarged City School District of Middletown should not be forced to refund school taxes collected at the time they were properly levied and collected. (Matter of Szkolnik v Allen, 21 AD2d 729, 15 NY2d 765; Xerox Corp. v Town of Webster, 131 Misc 2d 817; Matter of District Three IUE Hous. Dev. Fund Corp. v Buckley, 74 Misc 2d 1078; Matter of Rochester Sav. Bank v County of Monroe, 169 Misc 526; Matter of FMC Corp. [Peroxygen Chems.

      Div.] v Unmack, 92 NY2d 179; Hurd v City of Buffalo, 34 NY2d 628; Bethlehem Steel Corp. v Board of Educ. of City School Dist. of Lackawanna, 44 NY2d 831; Foss v City of Rochester, 65 NY2d 247; Forward v Webster Cent. School Dist., 136 AD2d 277; Gandolfi v City of Yonkers, 101 AD2d 188, 62 NY2d 995.) III. If, as Regional Economic Community Action Program, Inc. contends, the Enlarged City School District of Middletown should be bound by the Court’s decision in Matter of Adult Home at Erie Sta., Inc. v Assessor & Bd. of Assessment Review of City of Middletown (10 NY3d 205 [2008]), then it should have been named as a necessary party in the original CPLR article 78 proceeding. (City of New York v Long Is. Airports Limousine Serv. Corp., 48 NY2d 469; First Natl. Bank of Amsterdam v Shuler, 153 NY 163; Pettersen v Town of Fort Ann, 23 Misc 3d 549; Matter of Einstoss, 26 NY2d 181; Rosenfeld v Hotel Corp. of Am., 20 NY2d 25; Living Springs Retreat v County of Putnam, 159 AD2d 693; Matter of Macy’s Primary Real Estate v Assessor of City of White Plains, 291 AD2d 73.)

      Jay Worona, Latham, and Aileen Abrams for New York State School Boards Association, Inc., amicus curiae.
    The court below properly determined that plaintiff-appellant is not entitled to a refund of school taxes it paid because it failed to provide legal notice of its intent to seek a refund to the Enlarged City School District of Middletown, either prior to or at the time of payment of the taxes. (Video Aid Corp. v Town of Wallkill, 85 NY2d 663; Mercury Mach. Importing Corp. v City of New York, 3 NY2d 418; Matter of Tennessee Gas Pipeline Co. v Town of Chatham Bd. of Assessors, 239 AD2d 831; City of Rochester v Chiarella, 58 NY2d 316; Forward v Webster Cent. School Dist., 136 AD2d 277; Hurd v City of Buffalo, 41 AD2d 402; Foss v City of Rochester, 65 NY2d 247; Matter of Brookview Apts, v Stuhlman, 278 AD2d 825; Matter of Raymond v Honeywell, 58 Misc 2d 903; Matter of Haddad v City of Hudson, 6 AD3d 1018.)
   OPINION OF THE COURT

Pigott, J.

In this appeal, we are asked to determine the statute of limitations governing a taxpayer’s claim against a school district for money had and received arising from an erroneous assessment of school taxes and when such claim accrues. We hold that Education Law § 3813 (2-b)’s one-year statute of limitations applies and that the claim for money had and received accrues when the taxes are paid.

Regional Economic Community Action Program, Inc. (RECAP) is a tax-exempt charitable organization and owner of properties in the City of Middletown that provide housing for participants in RECAP’s “Community Re-Entry Program.” In February 2004, the City rejected RECAP’s Real Property Tax Law § 420-a application for a charitable tax exemption, and assessed taxes against the properties accordingly. These assessments, by virtue of their inclusion on the City’s final tax rolls, became part of the tax roll adopted by the Enlarged City School District of Middletown (the District).

In June 2004, without giving notice to the District, RECAP commenced a CPLR article 78 proceeding against the City, challenging the legality of the assessments. During the pendency of that proceeding, RECAP paid both city and school taxes for the years 2003-2004 through 2007-2008. According to REGAR it included a letter with those payments stating that it was paying its taxes to the City “under protest.” In March 2008, this Court concluded that RECAP was entitled to the exemption (see Matter of Adult Home at Erie Sta., Inc. v Assessor & Bd. of Assessment Review of City of Middletown, 10 NY3d 205, 212, 217 [2008]), and it thereafter recovered the property taxes it had paid the City.

In January 2009, RECAP demanded that the District refund RECAP’s tax payments for the 2003-2004 through 2007-2008 tax years. Upon the District’s refusal, RECAP commenced this action in April 2009 asserting a claim for money had and received, seeking over $142,000. Both parties moved for summary judgment, the District asserting, among other things, that RECAP’s cause of action was time-barred under Education Law § 3813 (2-b).

Supreme Court granted the District’s cross motion, holding that RECAP failed to comply with section 3813’s notice of claim and one-year statute of limitations provisions (see Education Law § 3813 [1], [2-b]). The Appellate Division affirmed on a different ground, holding that although RECAP may have submitted a letter with its tax payments to the City stating that such payments were “under protest,” that letter referred to city tax payments alone, not those made to the District (79 AD3d 723 [2d Dept 2010]). We affirm, solely on the statute of limitations ground adopted by Supreme Court.

We reject RECAP’s contention that its claim for money had and received is governed by a six-year statute of limitations. To be sure, a taxpayer may recover taxes paid pursuant to a wrongful assessment under that theory and, because such a claim is premised “upon a contractual obligation or liability, express or implied in law or fact,” it is generally governed by a six-year statute of limitations (Matter of First Natl. City Bank v City of N.Y. Fin. Admin., 36 NY2d 87, 93 [1975]; see also Diefenthaler v Mayor of City of N.Y., 111 NY 331, 337-338 [1888]). That limitation period is inapplicable here, however, because RECAP seeks recovery against a school district, which is entitled to rely on Education Law § 3813 (2-b).

According to section 3813 (2-b)—which governs non-tort claims against school districts—“notwithstanding any other provision of law providing a longer period of time in which to commence an action or special proceeding, no [such] action or special proceeding shall be commenced against [a school district] . . . more than one year after the cause of action arose” (emphasis supplied). The plain language of section 3813 (2-b) refutes RECAP’s claim that the longer six-year statute of limitations governs. Therefore, RECAP had one year from the date the cause of action arose within which to bring its claim.

RECAP asserts that its entire claim accrued in March 2009—when the District refused to issue a refund—relying on Education Law § 3813 (1), which states that “[i]n the case of an action or special proceeding for monies due arising out of contract, accrual of such claim shall be deemed to have occurred as of the date payment for the amount claimed was denied.” That provision is inapplicable to this type of claim.

In 1992, the Legislature amended section 3813 (1) by adding the “accrual” language to clarify the accrual date for filing a notice of claim as a precondition to a suit brought against a school district by a party in a contractual relationship with the district (see Mem in Support, Bill Jacket, L 1992, ch 387; see also Education Law § 3813 [1]). But RECAP and the District do not have a contractual relationship. Although a cause of action for money had and received is an action based on an implied contract, this designation is “a misnomer because it is not an action founded on contract at all; it is an obligation which the law creates in the absence of agreement when one party possesses money that in equity and good conscience he ought not to retain and that belongs to another” (Parsa v State of New York, 64 NY2d 143, 148 [1984], citing Miller v Schloss, 218 NY 400, 406-407 [1916]). Because section 3813 (1) addresses notice of claim requirements for parties who have a contractual relationship with the school district, RECAP’s section 3813 (1) accrual date argument is without merit.

We conclude that RECAP’s cause of action for money had and received accrued when it paid the taxes (see First Natl. City Bank, 36 NY2d at 93). Even assuming RECAP’s last payment was made “under protest” in October 2007, as RECAP claims, RECAP did not commence this action until April 2009, outside the one-year statute of limitations, rendering RECAP’s claim time-barred. Accordingly, the order of the Appellate Division should be affirmed, with costs.

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

Order affirmed, with costs.

       Given our holding, we need not address RECAP’s contentions that RECAP paid the school taxes “under protest” or that RECAP complied with section 3813 (l)’s notice of claim requirements.


author: Ciparick, J.

text:
    [964 NE2d 391, 941 NYS2d 20]
    Yenem Corp., Appellant, v 281 Broadway Holdings et al., Respondents. (And Other Actions.) Randall Co., LLC, Appellant, v 281 Broadway Holdings et al., Respondents, et al., Defendants. 281 Broadway Holdings LLC et al., Third-Party Plaintiffs, v Hunter-Atlantic, Inc., Third-Party Defendant-Respondent, et al., Third-Party Defendants.
    Argued January 3, 2012;
    decided February 14, 2012

      POINTS OF COUNSEL

      Jaroslawicz & Jaros LLC, New York City (David Jaroslawicz and David Tolchin of counsel), for Yenem Corp., appellant.
    I. Plaintiff was entitled to summary judgment as to liability on common-law grounds. (Klein v Beta I LLC, 10 AD3d 509; Hixon v Congregation Beit Yaakov, 57 AD3d 328; 11 Essex St. Corp. v Tower Ins. Co. of N.Y, 81 AD3d 516; Andre v Pomeroy, 35 NY2d 361; Nallan v Helmsley-Spear, Inc., 50 NY2d 507; Silberman v Surrey Cadillac Limousine Serv., 109 AD2d 833; Coronet Props. Co. v L/M Second Ave., 166 AD2d 242.) II. Under Administrative Code of the City of New York § 27-1031 (b), plaintiff was entitled to summary judgment and there was absolute liability as against defendants. (Cohen v Lesbian & Gay Community Servs. Ctr., Inc., 20 AD3d 309; Dorrity v Rapp, 72 NY 307; Post v Kerwin, 133 App Div 404; Levine v City of New York, 249 App Div 625; Elliott v City of New York, 95 NY2d 730; Bloomingdale v Duffy, 71 Misc 136; Gordon v Automobile Club of Am., 101 Misc 724, 180 App Div 927; Klein v Beta I LLC, 10 AD3d 509; Hixon v Congregation Beit Yaakov, 57 AD3d 328.) III. The finding of the majority below that absolute liability should not apply is directly contrary to the law in this state. (Spano v Perini Corp., 25 NY2d 11; Gordon v Eastern Ry. Supply, 82 NY2d 555; Coronet Props. Co. v L/M Second Ave., 166 AD2d 242; Levine v City of New York, 249 App Div 625; Palermo v Bridge Duffield Corp., 3 AD2d 863.) IV The conclusion of the majority in the Appellate Division that the Elliott v City of New York (95 NY2d 730 [2001]) case precludes summary judgment for plaintiff is erroneous. (Derdiarian v Felix Contr. Corp., 51 NY2d 308.) "V The Appellate Division majority’s statement that Coronet Props. Co. v L/M Second Ave. (166 AD2d 242, 243 [1st Dept 1990]) is dis-positive is erroneous. (Levine v City of New York, 249 App Div 625; Palermo v Bridge Duffield Corp., 3 AD2d 863.) VI. The majority in the Appellate Division ignored the distinction between summary judgment on liability and the amount of damages a plaintiff can recover. (Andre v Pomeroy, 35 NY2d 361.)

      Weg and Myers, P.C., New York City (Dennis T. D'Antonio, Joshua L. Mallín, William H. Parash and Jonathan C. Corbett of counsel), for Randall Co. LLC, appellant.
    I. Owners and general contractors have historically been held absolutely liable for the damages that their construction causes to adjoining landowners. (Cohen v Lesbian & Gay Community Servs. Ctr., Inc., 20 AD3d 309; Dorrity v Rapp, 72 NY 307; Post v Kerwin, 133 App Div 404; Levine v City of New York, 249 App Div 625; Elliott v City of New York, 95 NY2d 730; Bloomingdale v Duffy, 71 Misc 136; Gordon v Automobile Club of Am., 101 Misc 724; Klein v Beta I LLC, 10 AD3d 509; Hixon v Congregation Beit Yaakov, 57 AD3d 328; Coronet Props. Co. v L/M Second Ave., 166 AD2d 242.) II. The Appellate Division majority’s reliance on Elliott v

      City of New York (95 NY2d 730 [2001]) is misguided. (Coronet Props. Co. v L/M Second Ave., 166 AD2d 242; Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559; Huerta v New York City Tr. Auth., 290 AD2d 33.) III. Appellant is entitled to partial summary judgment on the issue of liability because respondents violated section 27-1031 (b) of the Building Code (Administrative Code of City of NY). (Gandley v Prestige Roofing & Siding Co., 148 AD2d 666; Trbaci v AJS Constr. Project Mgt, Inc., 22 Misc 3d 1116[A], 2009 NY Slip Op 50153[U]; Dorrity v Rapp, 72 NY 307; Post v Kerwin, 133 App Div 404; Coronet Props. Co. v L/M Second Ave., 166 AD2d 242; Bloomingdale v Duffy, 71 Misc 136; Van Nostrand v Froehlich, 44 AD3d 54; Doyle v American Home Prods. Corp., 286 AD2d 412; Gramigna v Morse Diesel, 210 AD2d 115.) IV The Appellate Division erred in granting respondents’ motion to amend. (Lettieri v Allen, 59 AD3d 202; Sharon Ava & Co. v Olympic Tower Assoc., 259 AD2d 315; Daniels v Empire-Orr, Inc., 151 AD2d 370; Matter of Cromwell Towers Redevelopment Co. v City of Yonkers, 41 NY2d 1; Elms-mere Assoc. v Gladstone, 153 AD2d 501.)

      Shafer Glazer, LLP, New York City (David A. Glazer and Mika M. Mooney of counsel), for respondents.
    I. The Appellate Division correctly determined that absolute liability can only be imposed under a state statute. (Elliott v City of New York, 95 NY2d 730; Smulczeski v City Ctr. of Music & Drama, 3 NY2d 498; Huerta v New York City Tr. Auth., 290 AD2d 33; Schumer v Caplin, 241 NY 346; Dorrity v Rapp, 72 NY 307; City of New York v Wineburgh Adv. Co., 122 App Div 748; Kobbe Co. v City of New York, 122 App Div 755; Pajak v Pajak, 56 NY2d 394; Post v Kerwin, 133 App Div 404.) II. Excavation and protection of adjacent structures does not fall into the category of statutes that typically give rise to absolute liability, and there is no evidence demonstrating an intent to impose absolute liability upon owners that undertook measures to preserve and protect adjoining structures. (Van Gaasbeck v Webatuck Cent. School Dist. No. 1, 21 NY2d 239; Koenig v Patrick Constr. Corp., 298 NY 313; City of New York v String fellow’s of N.Y., 253 AD2d 110; Matter of City of New York v State of New York, 282 AD2d 134; Dorrity v Rapp, 72 NY 307.) III. The Appellate Division correctly determined that a violation of Administrative Code of the City of New York § 27-1031 and a determination on proximate cause must be made prior to an imposition of liability. (Coronet Props. Co. v L/M Second Ave., 166 AD2d 242; Cohen v Lesbian & Gay Community Servs. Ctr., Inc., 20 AD3d 309; Quattrocchi v F.J. Sciame Constr. Corp., 44 AD3d 377; Dorrity v Rapp, 72 NY 307;
      McGlynn v Palace Co., 262 AD2d 116; Johnson v Phillips, 261 AD2d 269; Kiernan v Edwards, 97 AD2d 750.) IV Yenem Corp. cannot seek liability under common-law negligence for the first time on appeal, nor can it establish a prima facie case of negligence. (Sean M. v City of New York, 20 AD3d 146; Recovery Consultants v Shih-Hsieh, 141 AD2d 272; Quain v Buzzetta Constr. Corp., 69 NY2d 376; Kenney v City of New York, 30 AD3d 261; Coronet Props. Co. v L/M Second Ave., 166 AD2d 242; Wing Wong Realty Corp. v Flintlock Constr. Seros., LLC, 71 AD3d 537; Horwitz v Camelot Assoc. Corp., 66 AD3d 1299.) V Neither the former statutes pertaining to excavation and adjoining properties nor Administrative Code of the City of New York § 27-1031 were intended to provide a cause of action for tenants. VI. Leave to amend respondents’ answer was properly awarded by the Appellate Division since such leave is freely given and the claims have merit. (Oil Heat Inst, of Long Is. Ins. Trust v RMTS Assoc., 4 AD3d 290; Matter of Salon Ignazia, Inc., 34 AD3d 821; McFarland v Michel, 2 AD3d 1297; St. Paul Fire & Mar. Ins. Co. v Town of Hempstead, 291 AD2d 488; Lettieri v Allen, 59 AD3d 202.) VII. Randall Co., LLC’s request for $250,000 for lost rents should not be awarded as it is an unsubstantiated amount. (SRM Card Shop v 1740 Broadway Assoc., 2 AD3d 136.)

      Molod Spitz & DeSantis, P.C., New York City (Marcy Sonneborn and Alice Spitz of counsel), for third-party respondent.
    I. Summary judgment is premature before discovery has been conducted. (Venables v Sagona, 46 AD3d 672; Amico v Melville Volunteer Fire Co., Inc., 39 AD3d 784; Valdivia v Consolidated Resistance Co. of Am., Inc., 54 AD3d 753; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065; Alvarez v Prospect Hosp., 68 NY2d 320; Zuckerman v City of New York, 49 NY2d 557; Lewis v Safety Disposal Sys. of Pa., Inc., 12 AD3d 324; Global Mins. & Metals Corp. v Holme, 35 AD3d 93; Fazio v Brandywine Realty Trust, 29 AD3d 939.) II. The Legislature has not expressed its intent to treat an alleged violation of the Building Code of New York City as a state statute. (Staples v Town of Amherst, 146 AD2d 292; Fox v Jenny Eng’g Corp., 122 AD2d 532, 70 NY2d 761; Allen v Cloutier Constr. Corp., 44 NY2d 290; Conte v Large Scale Dev. Corp., 10 NY2d 20; De Milio v New York State Thruway Auth., 15 AD2d 27; Utica Mut. Ins. Co. v Mancini & Sons, 9 AD2d 116; People v Pulizzi, 199 Misc 405; Cohen v Crimenti, 24 AD2d 587; Schaeffer v Caldwell, 273 App Div 263; Martin v Herzog, 228 NY 164.) III. Plaintiffs have not made out a prima facie case under the Administrative Code of the City of New York. (Dorrity v Rapp, 72 NY 307; Coronet Props. Co. v L/M Second Ave., 166 AD2d 242; Eastern Consol. Props, v Adelaide Realty Corp., 95 NY2d 785; Holy Props, v Cole Prods., 87 NY2d 130; Cenven, Inc. v Bethlehem Steel Corp., 41 NY2d 842; Elliott v City of New York, 95 NY2d 730; Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559; Major v Waverly & Ogden, 7 NY2d 332; Tkach v Montefiore Hosp., 289 NY 387; Worth Distribs. v Latham, 59 NY2d 231.) IV Hunter-Atlantic, Inc. is not in privity of contract with Yenem Corp. (Espinal v Melville Snow Contrs., 98 NY2d 136; Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76 NY2d 220; Raffa v Stilloe Roofing & Siding, 182 AD2d 901; Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314; Strauss v Belle Realty Co., 98 AD2d 424, 65 NY2d 399.)

      Michael A. Cardozo, Corporation Counsel, New York City (Margaret G. King and Spencer Fisher of counsel), for City of New York, amicus curiae.
    Certain language in the Appellate Division majority decision risks creating confusion about the legal status of many New York City Charter and Administrative Code of the City of New York provisions originally adopted as state laws, including provisions applicable outside the tort context. This Court should ensure the continued status of those provisions in accordance with long-standing judicial precedent. (Elliott v City of New York, 95 NY2d 730; Grimmer v Tenement House Dept. of City of N.Y., 204 NY 370; Racine v Morris, 201 NY 240; People ex rel. Savory, Inc. v Plunkett, 295 NY 180; Board of Educ. v Rogers, 278 NY 66; Matter of Patrolmen’s Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d 563; Matter of City of New York v Patrolmen’s Benevolent Assn. of the City of N.Y., Inc., 14 NY3d 46; Matter of Finegan v Cohen, 275 NY 432; Walter v City of N.Y. Police Dept., 244 AD2d 205; Old Dutch Lands v City of New York, 55 Misc 2d 384, 32 AD2d 649, 26 NY2d 984.)
   OPINION OF THE COURT

Ciparick, J.

On this appeal, we consider whether former Administrative Code of the City of New York § 27-1031 (b) (1) imposes absolute liability on defendants whose excavation work caused damage to adjoining property. We hold that it does, and that plaintiffs are entitled to summary judgment.

Plaintiff Randall Co. (Randall) is the owner of a landmark cast iron and masonry building located at 287 Broadway in

Manhattan. Plaintiff Yenem Corp. (Yenem) was a commercial tenant operating a pizzeria in the building. In 2006, defendant The John Buck Company (JBC) through its subsidiary, defendant 281 Broadway Holdings LLC (281 Broadway Holdings), purchased the lot adjacent to the south and west sides of 287 Broadway and began developing an L-shaped commercial and condominium complex. JBC and 281 Broadway Holdings hired defendant Hunter-Atlantic, Inc. (Hunter-Atlantic) to excavate the site. The excavation occurred at a depth of 18 feet below curb level. As the excavation progressed, 287 Broadway shifted out of plumb, tilting out of verticality. On November 28, 2007, the Department of Buildings (DOB) found that the building leaned to the south by approximately nine inches. The following day, DOB issued a vacate order deeming the building unsafe for occupancy. As a result, Yenem was forced to close its business, and Randall’s building remains vacant.

Yenem commenced an action against JBC, 281 Broadway Holdings and Hunter-Atlantic claiming that defendants were negligent and strictly liable under Administrative Code of the City of New York § 27-1031 (b) (1) for causing damage to 287 Broadway, resulting in the loss of Yenem’s business. Randall commenced a separate action against JBC and 281 Broadway Holdings asserting similar claims. Hunter-Atlantic cross-claimed against its codefendants and asserted third-party claims against various subcontractors and engineering companies.

Randall moved for partial summary judgment against JBC and 281 Broadway Holdings seeking lost rent and other damages, and Yenem moved for summary judgment against all defendants. JBC and 281 Broadway Holdings opposed plaintiffs’ motions and cross-moved for summary judgment against Hunter-Atlantic. In support of their respective summary judgment motions, plaintiffs submitted, among other things, a letter and affidavit of managing agents of 281 Broadway Holdings and a report by defendants’ structural engineers, all of which stated that 287 Broadway shifted increasingly out of plumb during the course of defendants’ excavation work despite defendants’ various remedial efforts. Specifically, one of defendants’ engineers stated that “[t]he movement of the building during excavation was caused by settlement due to undermining of the existing footings and a loss of soil under the footing.”

In the Yenem action, Supreme Court denied Yenem’s motion for summary judgment with leave to renew at the close of discovery. The court found that violation of Administrative Code of the City of New York § 27-1031 (b) (1) did not result in strict liability but constituted some evidence of negligence. The court also found potential factual issues regarding the proximate cause of the building’s movement. In the Randall action, however, a different Supreme Court justice granted Randall’s motion for partial summary judgment and denied defendants’ cross motion in its entirety. The court held that defendants were strictly liable under section 27-1031 (b) (1).

In consolidated appeals, a divided Appellate Division upheld the order denying plaintiff’s motion for summary judgment in the Yenem action and reversed the order granting plaintiff summary judgment in the Randall action (see Yenem Corp. v 281 Broadway Holdings, 76 AD3d 225, 231 [1st Dept 2010]). The court rejected plaintiffs’ argument that because section 27-1031 (b) (1) was originally enacted as a state law imposing absolute liability, it should continue to be so construed (see id. at 228-229). Citing Elliott v City of New York (95 NY2d 730 [2001]), the Appellate Division found that as a municipal ordinance, the code provision was an “unsuitable candidate for elevation to the status of a state statute imposing per se negligence or absolute liability” (Yenem Corp., 76 AD3d at 230). The court further held that plaintiffs failed to demonstrate that “defendants’ actions were the proximate cause of the damage to the building or that the precautions taken by defendants in connection with the excavation were inadequate” (id. at 231).

Two justices dissented on the ground that section 27-1031 (b) (1), having its origins in state law, imposes strict liability where a plaintiff demonstrates that a violation of the provision proximately caused injuries to the plaintiffs property (see id. at 233). The dissent opined that Elliott expressly recognized that a local law with state law origins could invoke statutory treatment and, providing a thorough review of the provision’s legislative history, concluded that section 27-1031 (b) (1) fit that rule “to the proverbial tee” (id. at 237). The dissent further concluded that defendants violated the code provision; that the building’s prior condition was irrelevant to the issue of proximate cause; and that, as a strict liability provision, section 27-1031 (b) (1) did not permit an affirmative defense of reasonable precautions (see id. at 242-245).

The Appellate Division granted plaintiffs leave to appeal, certifying the following question to us: “Was the corrected decision and order of this Court, which affirmed the order of the Supreme Court entered September 18, 2008, and reversed an order of said Court entered January 29, 2009, properly made?” We now reverse and answer the certified question in the negative.

“As a rule, violation of a State statute that imposes a specific duty constitutes negligence per se, or may even create absolute liability. By contrast, violation of a municipal ordinance constitutes only evidence of negligence” (Elliott, 95 NY2d at 734 [citations omitted]). We have “however, acknowledge[d] that certain sections of the Administrative Code have their origin in State law and, as such, they might be entitled to statutory treatment in tort cases” (id. at 736 [citation omitted]). Thus, “[i]n analyzing whether a violation of [an] Administrative Code section should be viewed as negligence per se or as some evidence of negligence, we consider the origin of [the] provision” (id. at 733).

Former Administrative Code of the City of New York § 27-1031 (b) (l) provides:

“When an excavation is carried to a depth more than ten feet below the legally established curb level the person who causes such excavation to be made shall, at all times and at his or her own expense, preserve and protect from injury any adjoining structures, the safety of which may be affected by such part of the excavation as exceeds ten feet below the legally established curb level provided such person is afforded a license to enter and inspect the adjoining buildings and property.”

The provision originated from an 1855 special law (see NY Const, art IX, § 3 [d] [4]) that created a duty to protect neighboring landowners in “the city and county of New-York” and the “city of Brooklyn” from harm arising from excavation work where none had existed at common law (L 1855, ch 6, § 1). In effect, the statute, as enacted, shifted the burden of protecting against harm from the landowner to the excavator. In Dorrity v Rapp (72 NY 307 [1878]), we characterized the statute as imposing absolute liability, stating:

“[t]he primary object of the statute[ ] was to cast upon the party making an excavation on his land, exceeding ten feet in depth, the risk of injury resulting therefrom to the wall of an adjoining owner, and the burden of protecting it. The liability imposed is not made to depend upon the degree of care exercised by the person making the excavation. When the facts bring the case within the statute, the duty and liability which the statute imposes is absolute and unqualified” (id. at 311 [emphasis added]).

The original statute was subsequently reenacted under the Consolidation Act of 1882 (see L 1882, ch 410, § 474). In 1899, the law was recodified as a municipal ordinance in section 22 of the New York City Building Code, which, in turn, was later incorporated into the Administrative Code as section C26-385.0 (a) . In 1968, section C26-385.0 (a) was recodified as section C261903.1 (b) (1), and in 1985, that section became section 27-1031 (b) (1). Even after its recodification as a local law, however, New York courts continued to treat the provision as a strict liability statute (see Hart v City Theatres Co., 215 NY 322, 325-326 [1915]; Racine v Morris, 201 NY 240, 244 [1911]; Post v Kerwin, 133 App Div 404, 405-406 [2d Dept 1909]; Victor A. Harder Realty & Constr. Co. v City of New York, 64 NYS2d 310, 317-318 [Sup Ct, NY County 1946]).

We see no reason to depart from that interpretation in our review of section 27-1031 (b) (1). Certainly not every municipal ordinance with state law roots is entitled to statutory treatment, but section 27-1031 (b) (1) is unique. Its language and purpose are virtually identical, in all relevant aspects, to those of its state law predecessors. Indeed, as noted by the dissent below, “neither the wording nor the import of the statute was materially or substantively altered” either upon its recodification as a local law or in the century thereafter (see Yenem Corp., 76 AD3d at 239). Even more important, its original purpose of shifting the risk of injury from the injured landowner to the excavator of adjoining land has remained constant over the years. To hold that a violation of the provision is only “evidence of negligence” would thus defeat the legislation’s basic goal. Though formerly a state law and now a local ordinance, section 27-1031 (b) (1) continues to embody the specific legislative policy that in New York City those who undertake excavation work, rather than those whose interest in neighboring land is harmed by it, should bear its costs.

Finally, we agree with the dissent below that plaintiffs are entitled to summary judgment. Defendants’ affidavits and the report of defendants’ engineers expressly state that the excavation, carried to a depth exceeding the regulatory threshold, undermined the foundation of 287 Broadway and caused it to lean southward. The majority below erred in finding that the building’s allegedly poor condition raised an issue of fact as to causation; though certainly relevant to any measure of damages, consideration of the building’s prior condition does not factor into a proximate cause analysis under section 27-1031 (b) (1).

Accordingly, the order of the Appellate Division should be reversed, with costs, in Yenem Corp. v 281 Broadway Holdings, plaintiffs motion for summary judgment on the issue of liability granted, in Randall Co., LLC v 281 Broadway Holdings, the order of Supreme Court reinstated, and the certified question answered in the negative.

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

Order reversed, with costs, in Yenem Corp. v 281 Broadway Holdings, plaintiffs motion for summary judgment on the issue of liability granted, in Randall Co., LLC v 281 Broadway Holdings, order of Supreme Court, New York County, reinstated, and certified question answered in the negative.

      . The complaint also named “John Doe,” “Jane Doe,” and “XYZ Corporation” as the contractors hired by defendants to perform the excavation work.

      . Section 27-1031 (b) (1) was repealed effective July 1, 2008 and its equivalent provision is now contained in the New York City Construction Code (Administrative Code, tit 28, ch 33, § 3309.4). We do not pass on that provision, as it is not before us on this appeal.

      . In 1882, the law provided:
      “Whenever excavations, for building or other purposes, on any lot or piece of land in the city and county of New York, shall be intended to be carried to the depth of more than ten feet below the curb, and there shall be any party or other wall, wholly or partly on adjoining land and standing upon or near the boundary lines of such lot, the person causing such excavations to be made . . . shall at all times from the commencement until the completion of such excavations, at his own expense, preserve such wall from injury, and so support the same by a proper foundation that it shall remain as stable as before the excavations were commenced” (L 1882, ch 410, § 474).

      . We note that we have previously given elevated treatment to local ordinances derived from special laws, finding that they reflect the “policy of the state” and, in some circumstances, may even override a conflicting state law embodying a countervailing public policy (see Matter of Patrolmen’s Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d 563, 576 [2006] [holding that the state policy embodied in Administrative Code § 14-115 (a), which reserves authority over police disciplinary matters to the New York City Police Commissioner, is “so important that the policy favoring collective bargaining (implemented by the Taylor Law) should give way”]).


text:
    [964 NE2d 388, 941 NYS2d 17]
    The People of the State of New York, Respondent, v Anthony Steward, Appellant; The People of the State of New York, Respondent, v Nafis Wright, Appellant.
    Argued January 12, 2012;
    decided February 14, 2012

      POINTS OF COUNSEL

      Center for Appellate Litigation, New York City (David J. Klem, Jan Hoth and Robert S. Dean of counsel), for appellants in the first and second above-entitled actions.
    Appellants Steward and Wright were eligible for resentencing, pursuant to the Drug Law Reform Act of 2009, because the only “predicate conviction” upon which appellants had been arraigned was a nonviolent offense and, therefore, not an exclusionary offense. (People v Williams, 66 NY2d 629; People v Montilla, 10 NY3d 663; People v Samms, 95 NY2d 52; Matter of North v Board of Examiners of Sex Offenders of State of N.Y., 8 NY3d 745; People v Kuey, 83 NY2d 278; People v Harris, 61 NY2d 9; People v Mateo, 93 NY2d 327; People v Duggins, 3 NY3d 522; Sanders v Winship, 57 NY2d 391; Matter of Branford House v Michetti, 81 NY2d 681.)

      Cyrus R. Vance, Jr., District Attorney, New York City (John B. F. Martin and Christopher P. Marinetti of counsel), for respondent in the first above-entitled action.
    Defendant’s two predicate violent felony convictions for exclusion offenses rendered him ineligible for resentencing under the Drug Law Reform Act of 2009. (People v Duggins, 3 NY3d 522; People v Wright, 78 AD3d 474; People v Brown, 26 Misc 3d 1204[A], 2010 NY Slip Op 50000[U]; People v Mills, 11 NY3d 527; People v Ramirez, 49 AD3d 475, 10 NY3d 868; People v Alcequier, 43 AD3d 699, 11 NY3d 921; People v Singleton, 40 AD3d 502, 9 NY3d 881; People v Dais, 81 AD3d 432; Matter of Albano v Kirby, 36 NY2d 526; People v Montilla, 10 NY3d 663.)

      Cyrus R. Vance, Jr., District Attorney, New York City (John B. F. Martin and Christopher P. Marinelli of counsel), for respondent in the second above-entitled action.
    Defendant’s two predicate violent felony convictions for exclusion offenses rendered him ineligible for resentencing under the Drug Law Reform Act of 2009. (People v Duggins, 3 NY3d 522; People v Brown, 26 Misc 3d 1204[A], 2010 NY Slip Op 50000[U]; People v Mills, 11 NY3d 527; People v Ramirez, 49 AD3d 475, 10 NY3d 868; People v Alcequier, 43 AD3d 699, 11 NY3d 921; People v Singleton, 40 AD3d 502, 9 NY3d 881; People v Dais, 81 AD3d 432; Matter of Albano v Kirby, 36 NY2d 526; People v Montilla, 10 NY3d 663; People v Samms, 95 NY2d 52.)
   OPINION OF THE COURT

Pigott, J.

The Drug Law Reform Act of 2009 permits resentencing for persons in the custody of the Department of Corrections and Community Supervision who are serving an indeterminate sentence with a maximum term of more than three years for a Penal Law article 220 class B felony that was committed before January 13, 2005 (see CPL 440.46 [1]). Resentencing is unavailable, however, “to any person who is serving a sentence on a conviction for or has a predicate felony conviction for an exclusion offense,” which is defined, as relevant here, as

“(a) a crime for which the person was previously convicted within the preceding ten years, excluding any time during which the offender was incarcerated for any reason between the time of commission of the previous felony and the time of commission of the present felony, which was: (i) a violent felony offense as defined in section 70.02 of the penal law” (CPL 440.46 [5] [a] [i] [emphasis supplied]).

Defendant Steward moved for resentencing on his March 2004 convictions for criminal sale of a controlled substance in the third and fourth degrees. He had been arraigned as a predicate felon on the basis of his 1992 conviction for the nonviolent felony of robbery in the third degree, rather than his 1991 convictions for the violent felonies of robbery in the first and second degrees.

Defendant Wright sought resentencing on his May 2005 conviction for criminal possession of a controlled substance in the third degree. At sentencing, he had been adjudicated a predicate felon based on his 1997 conviction for the nonviolent felony of attempted criminal sale of a controlled substance in the third degree, notwithstanding the fact that he also had two 1994 violent felony convictions for attempted robbery in the second degree.

The trial courts in Steward and Wright concluded that neither defendant was eligible for resentencing because each had been convicted of an “exclusion offense” as defined by CPL 440.46 (5) (a) (i), rejecting defendants’ respective claims that the term “predicate felony conviction” refers to only those felonies upon which a defendant had been adjudicated a predicate felon. The Appellate Division affirmed in each appeal, holding that the reference to “ ‘predicate felony conviction’ does not require that the defendant be so adjudicated” (People v Wright, 78 AD3d 474, 475 [1st Dept 2010]; People v Steward, 78 AD3d 481 [1st Dept 2010]). A Judge of this Court granted leave, and we now affirm.

The sole issue raised on these appeals is whether these defendants have predicate felony convictions for exclusion offenses, thereby rendering them ineligible for resentencing. Defendants make an identical argument—that because the convictions upon which they were adjudicated predicate felony offenders were for nonviolent felony offenses, they had no predicate felony convictions for exclusion offenses under CPL 440.46 (5) (a). Thus, the argument goes, although their older violent felony convictions may constitute “prior convictions” or “prior felonies,” they were not predicate felony convictions.

A “predicate felony conviction” is defined, in pertinent part, as a conviction of a felony in this state, for which sentence was imposed before the commission of the current felony and “not more than ten years before commission of the felony of which the defendant presently stands convicted,” excluding “any period of time during which the person was incarcerated for any reason between the time of commission of the previous felony and the time of commission of the present felony” (Penal Law § 70.06 [1] [b] [i], [ii], [iv], [v]). Defendants concede that they have prior violent felony convictions. Moreover, it is evident from the record that, excluding time for incarceration “for any reason” between the commission of the violent felonies and the present drug felonies, the sentences on those prior convictions were imposed not more than 10 years before the commission of their respective drug felonies for which they seek resentencing. On the face of the statute, therefore, defendants have predicate felony convictions for an “exclusion offense.”

But defendants assert that CPL 440.46 (5) (a) requires that they must have been “arraigned” on a predicate statement and “adjudicated” a predicate felony offender on the basis of a violent felony offense in order for it to render them ineligible for resentencing. However, it is evident from CPL 440.46 (5) (a) that predicate felony convictions are not limited to convictions that have been so “adjudicated,” particularly in light of CPL 440.46 (5) (b)’s explicit language that an “exclusion offense” is also “a second violent felony offense pursuant to [Penal Law § 70.04] or a persistent violent felony offense pursuant to [Penal Law § 70.08] for which the person has previously been adjudicated” (emphasis supplied). By including a “prior adjudication” requirement in paragraph (b) (which does not include the 10-year limitation) but not paragraph (a), the Legislature plainly intended that defendants with convictions for violent felony offenses need not be previously adjudicated as such before being rendered ineligible for resentencing under CPL 440.46 (5) (a) (see Matter of Albano v Kirby, 36 NY2d 526, 530 [1975] [noting that “(w)hen different terms are used in various parts of a statute . . . , it is reasonable to assume that a distinction between them is intended”]). The plain language of CPL 440.46 (5) (a) and (b) thus demonstrates that prior adjudication is required under the latter provision, but not the former.

Nor do Penal Law § 70.06 (1) (b) and CPL 400.21 (7) (c) limit the term “predicate felony conviction” to only convictions that have been previously adjudicated as such. Penal Law § 70.06 (1) (b) delineates the criteria concerning what types of prior convictions constitute “predicate felony conviction[s],” while CPL 400.21 (7) (c) specifies the procedure courts must follow when determining whether a defendant is a second felony offender, which includes a finding by a court as to whether “the defendant has been subjected to a predicate felony conviction.” Therefore, while the term “second felony offender” requires an adjudication under CPL 400.21 (7) (c), the term “predicate felony conviction” does not require any such adjudication.

Contrary to defendants’ contentions, our holding does not foreclose defendants seeking resentencing from challenging the validity of the underlying prior violent felony conviction(s) upon which they are denied resentencing. The Drug Law Reform Act of 2004—governing “proceedings on and determination of a motion brought pursuant to [CPL 440.46]”—states that a court may “conduct a hearing, if necessary, to determine whether [a defendant] qualifies to be resentenced or to determine any controverted issue of fact relevant to the issue of sentencing” (L 2004, ch 738, § 23 [emphasis supplied]; see CPL 440.46 [3]). Thus, a defendant has an opportunity to challenge the validity of the predicate felony conviction as part of his resentencing application; here, defendants did not challenge the validity of their prior violent felony convictions.

Accordingly, the orders of the Appellate Division in Steward and Wright should be affirmed.

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

In each case: Order affirmed.

       Effective March 31, 2011, the New York State Department of Correctional Services was renamed as the Department of Corrections and Community Supervision (see L 2011, ch 62, part C, subpart B, § 79).