author: Smith, J.

text:
    [ 886 NE2d 137, 856 NYS2d 515]
    In the Matter of Adult Home at Erie Station, Inc., Respondent, v Assessor and Board of Assessment Review of City of Middletown et al., Appellants. In the Matter of Regional Economic Community Action Program, Inc., Appellant, v Bonnie Bernaski, as Commissioner of Assessment of the City of Middletown, Respondent.
    Argued February 5, 2008;
    decided March 13, 2008

      POINTS OF COUNSEL

      Segel, Goldman, Mazzotta & Siegel, P.C., Albany (Paul J. Goldman of counsel), and Alex Smith, Corporation Counsel, Middletown, for appellants in the first above-entitled proceeding.
    I. The Appellate Division ignores the requirement that the exemption statutes be narrowly construed. (People ex rel. Watchtower Bible & Tract Socy. v Haring, 8 NY2d 350; Matter of Yeshivath Shearith Hapletah v Assessor of Town of Fallsburg, 79 NY2d 244; Matter of Presbyterian Residence Ctr. Corp. v Wagner, 66 AD2d 998, 48 NY2d 885; Matter of Greer Woodycrest Children’s Servs. v Fountain, 138 AD2d 709, 74 NY2d 749; Matter of Belle Harbor Home of Sages v Tishelman, 100 Misc 2d 911, 81 AD2d 886; Matter of Marino P. Jeantet Residence for Seniors v Commissioner of Fin. of City of N.Y., 105 Misc 2d 1080, 86 AD2d 671; Matter of New York Life Ins. Co. v State Tax Commn., 80 AD2d 675; Matter of Howard v Wyman, 28 NY2d 434; Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 57 NY2d 588.) II. The Appellate Division applied the wrong standard for determining whether an RPTL 420-a exemption is warranted. (Matter of Belle Harbor Home of Sages v Tishelman, 100 Misc 2d 911, 81 AD2d 886; Matter of Greer Woodycrest Children’s Servs. v Fountain, 138 AD2d 709, 74 NY2d 749; 328 Owners Corp. v 330 W. 86 Oaks Corp., 8 NY3d 372; Matter of Schomburg Plaza, Inc. v Austin, 8 AD3d 489; Matter of Nassau County Hispanic Found. [Board of Assessors], 198 AD2d 357; Sisters of St. Joseph v City of New York, 49 NY2d 429.) III. The Appellate Division decision conflicts with the New York State Constitution. (Matter of Roosevelt Raceway v Monaghan, 9 NY2d 293, 368 US 12; Sonmax, Inc. v City of New York, 43 NY2d 253; Kessel v Purcell, 119 Misc 2d 449; People ex rel. Doctor’s Hosp., Inc. v Sexton, 267 App Div 736; Matter of Greer Woodycrest Children’s Servs. v Fountain, 138 AD2d 709, 74 NY2d 749; Matter of Belle Harbor Home of Sages v Tishelman, 100 Misc 2d 911, 81 AD2d 886; Matter of San Simeon By The Sound v Russell, 250 AD2d 689; Cobble Hill Nursing Home v Henry & Warren Corp., 196 AD2d 564, 83 NY2d 756.) IV Petitioner is estopped from asserting that the contract occupants are objects of charity. (Matter of Meditrust v Fahey, 226 AD2d 999.) V Petitioner failed to exhaust its administrative remedies. (Watergate II Apts, v Buffalo Sewer Auth., 46 NY2d 52; Matter of Town of Highland v New York State Bd. of Equalization & Assessment, 211 AD2d 893; Aldrich v Pattison, 107 AD2d 258; Matter of Sterling Estates v Board of Assessors of County of Nassau, 66 NY2d 122; W.T. Grant Co. v Srogi, 52 NY2d 496.)

      Brandt, Steinberg & Lewis, LLP, New York City (Richard A. Steinberg and Hubert J. Brandt of counsel), for respondent in the first above-entitled proceeding.
    I. Appellants mischaracterize respondent’s settled purpose and conduct, ignore the factual record and apply inapposite case law in a failed attempt to overturn the decision below. (Carrier v Salvation Army, 217 AD2d 420, 88 NY2d 298; Matter of Belle Harbor Home of Sages v Tishelman, 100 Misc 2d 911; Riverdale Country School v City of New York, 13 AD2d 103, 11 NY2d 741; Sisters of St. Joseph v City of New York, 49 NY2d 429; Matter of Symphony Space v Tishelman, 60 NY2d 33; Matter of St. Luke’s Hosp. v Boyland, 12 NY2d 135; Matter of Greer Woodycrest Children’s Servs. v Fountain, 138 AD2d 709, 74 NY2d 749; Matter of Presbyterian Residence Ctr. Corp. v Wagner, 66 AD2d 998, 48 NY2d 885; Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 62 NY2d 539; Matter of Valeria Home v Cook, 22 NY2d 388.) II. An RPTL article 7 proceeding is a de novo trial; petitioner is not limited to its proof made before the Assessor and Board of Assessment Review of the City of Middletown. (People ex rel. Jamaica Water Supply Co. v State Bd. of Tax Commrs., 196 NY 39; People ex rel. 4 Park Ave. Corp. v Lilly, 265 App Div 68; Matter of Katz Buffalo Realty v Anderson, 25 AD2d 809; W.T. Grant Co. v Srogi, 52 NY2d 496; Matter of Sterling Estates v Board of Assessors of County of Nassau, 66 NY2d 122; Matter of Hyacinthe v Glaser, 104 AD2d 651.)

      J. Wade Beltramo, Deputy General Counsel, New York State Conference of Mayors and Municipal Officials, Albany, for New York State Conference of Mayors and Municipal Officials, amicus curiae in the first above-entitled proceeding.
    I. The Legislature has clearly, unambiguously, and explicitly expressed its intention that not-for-profit exemptions claims under RPTL 420-a must be narrowly interpreted and applied. (People ex rel. Unity Cong. Socy. of City of N.Y. v Mills, 189 Misc 774; People ex rel. Andrews v Cameron, 140 App Div 76, 200 NY 585; People ex rel. Mizpah Lodge No. 518 of Ind. Order of Odd Fellows v Burke, 228 NY 245; People ex rel. Delta Kappa Epsilon Socy. v Lawler, 74 App Div 553, 179 NY 535; People ex rel. Watchtower Bible &

      Tract Socy. v Haring, 8 NY2d 350; Matter of Faculty-Student Assn. of Harpur Coll. v Dawson, 57 Misc 2d 112.) II. The courts’ constantly expansive reading of New York’s tax-exemption statutes has eroded the local government tax base to such a degree that any further expansion of the State’s tax-exempt laws will threaten the financial solvency of many of New York’s local governments; consequently, sound public policy demands that the terms “charitable” and “exclusively,” as used in RPTL 420-a, must be interpreted and applied narrowly. III. An expansive reading of RPTL 420-a puts the State of New York at an economically competitive disadvantage to other states, and thus the statute should be narrowly construed.

      Cadwalader, Wickersham & Taft LLP, New York City (Peter G. Bergmann, Terence F. Gilheany and Brian T. McGovern of counsel), for New York Association of Homes and Services for the Aging, amicus curiae in the first above-entitled proceeding.
    I. This Court should affirm the Appellate Division’s order, recognizing that respondent, a not-for-profit adult home, is used exclusively (i.e., primarily) for charitable purposes pursuant to RPTL 420-a as that statute has been read and applied by this Court in Mohonk Trust v Board of Assessors of Town of Gardiner (47 NY2d 476 [1979]) and Matter of Symphony Space v Tishelman (60 NY2d 33 [1983]). (Matter of Belle Harbor Home of Sages v Tishelman, 100 Misc 2d 911, 81 AD2d 886, 55 NY2d 602; Matter of Marino P. Jeantet Residence for Seniors v Commissioner of Fin. of City of N.Y., 105 Misc 2d 1080, 86 AD2d 671; Matter of Adirondack Land Trust v Town of Putnam Assessor, 203 AD2d 861, 84 NY2d 809; Matter of Scenic Hudson Land Trust v Sarvis, 234 AD2d 301; Matter of Farm Sanctuary v Patton, 221 AD2d 67; Matter of Canton Human Servs. Initiatives, Inc. v Town of Canton, 4 Misc 3d 413; Matter of Stuyvesant Sq. Thrift Shop v Tax Commn. of City of N.Y., 54 NY2d 735; Sisters of St. Joseph v City of New York, 49 NY2d 429; Matter of Association of Bar of City of N.Y. v Lewisohn, 34 NY2d 143.) II. The legislative history of RPTL 420-a and 422 reinforces the conclusion that the charitable exemption contained in RPTL 420-a broadly includes adult homes. (Matter of Symphony Space v Tishelman, 60 NY2d 33; Mohonk Trust v Board of Assessors of Town of Gardiner, 47 NY2d 476.) III. An adult home is not a mere “apartment complex” for senior citizens but a long-term care provider addressing the special needs of the elderly. (Matter of Presbyterian Residence Ctr. Corp. v Wagner, 66 AD2d 998, 48 NY2d 885; Matter of Greer Woodycrest Children’s Servs. v Fountain, 138 AD2d 709, 74 NY2d 749; Matter of Regional Economic Community Action Program, Inc. v Bernaski, 40 AD3d 1000.)

      Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, Albany (Michael G. Weisberg of counsel), for Healthcare Association of New York State, Inc., amicus curiae in the first above-entitled proceeding.
    I. The Adult Home at Erie Station, Inc. was organized and conducted for a charitable purpose. (Mohonk Trust v Board of Assessors of Town of Gardiner, 47 NY2d 476; Matter of American Socy. for Prevention of Cruelty to Animals v Tax Commn. of City of N.Y., 113 Misc 2d 427; Sherman v Richmond Hose Co. No. 2, 230 NY 462; Matter of Hamilton, 270 App Div 634, 296 NY 578; Matter of Farm Sanctuary v Patton, 221 AD2d 67; Matter of Marino P. Jeantet Residence for Seniors v Commissioner of Fin. of City of N.Y., 105 Misc 2d 1080, 86 AD2d 671; Matter of Belle Harbor Home of Sages v Tishelman, 100 Misc 2d 911, 81 AD2d 886, 55 NY2d 602; Tucker v Toia, 43 NY2d 1; Matter of Lee v Smith, 43 NY2d 453; Olmstead v L. C., 527 US 581.) II. The Adult Home at Erie Station, Inc. was used “exclusively” for charitable purposes. (Matter of Symphony Space v Tishelman, 60 NY2d 33; Matter of Yeshivath Shearith Hapletah v Assessor of Town of Fallsburg, 79 NY2d 244; People ex rel. Doctor’s Hosp., Inc. v Sexton, 267 App Div 736, 295 NY 553; Matter of Nevins, 16 Misc 2d 425; Butterworth v Keeler, 219 NY 446; American-Russian Aid Assn. v City of Glen Cove, 41 Misc 2d 622, 23 AD2d 966; Matter of Belle Harbor Home of Sages v Tishelman, 100 Misc 2d 911, 81 AD2d 886; Matter of Nassau County Hispanic Found. [Board of Assessors], 198 AD2d 357; Matter of Visiting Nurse Serv. of N.Y. Home Care v New York State Dept. of Health, 5 NY3d 499; Matter of Aliessa v Novello, 96 NY2d 418.)

      James G. Sweeney, P.C., Goshen (James G. Sweeney, Barbara J. Harris and Max Wilde of counsel), for appellant in the second above-entitled proceeding.
    I. The notion of relief from real property taxation for charitable organizations is firmly embedded in the jurisprudence of the state and nation. The methodology used by the courts below works against that jurisprudence. (Hollis v Drew Theol. Seminary, 95 NY 166; Amherst Coll. v Ritch, 151 NY 282; Matter of Huntington, 168 NY 399; Walz v Tax Commn. of City of N.Y., 24 NY2d 30, 397 US 664.) II. The correct test for deciding whether or not Regional Economic Community Action Program, Inc. is entitled to the RPTL 420-a (1) (a) exemption is the “reasonably incident” test of Matter of St. Luke’s Hosp. v Boyland (12 NY2d 135 [1962]). The courts below failed to apply this test. (Matter of Miriam Osborn Mem. Home Assn. v Assessor of City of Rye, 275 AD2d 714; Matter of Symphony Space v Tishelman, 60 NY2d 33; Matter of Regional

      Economic Community Action Program v Ritter, 270 AD2d 492; Matter of Pets Alive v Wanat, 288 AD2d 386; Matter of St. Luke’s Hosp. v Boyland, 15 AD2d 776; People ex rel. Clarkson Mem. Coll. of Tech. v Haggett, 274 App Div 732, 300 NY 595; People ex rel. Watchtower Bible & Tract Socy. v Haring, 8 NY2d 350; Gospel Volunteers v Village of Speculator, 33 AD2d 407, 29 NY2d 622; Matter of Shrine of Our Lady of Martyrs of Auriesville v Board of Assessors of Town of Glen, 40 AD2d 75, 33 NY2d 713; Matter of American Mgt. Assns. v Assessor of Town of Madison, 63 AD2d 1102.) III. The courts below applied a wrong legal standard in denying the exemption. (Matter of St. Luke’s Hosp. v Boyland, 12 NY2d 135; People ex rel. Watchtower Bible & Tract Socy. v Haring, 8 NY2d 350; Gospel Volunteers v Village of Speculator, 33 AD2d 407, 29 NY2d 622; Matter of Salvation Army v Town of Ellicott Bd. of Assessment Review, 100 AD2d 361; American-Russian Aid Assn. v City of Glen Cove, 41 Misc 2d 622, 23 AD2d 966; People ex rel. Clarkson Mem. Coll. of Tech. v Haggett, 274 App Div 732, 300 NY 595; Butterworth v Keeler, 219 NY 446.)

      Segel, Goldman, Mazzotta & Siegel, P.C., Albany (Paul J. Goldman of counsel), and Alex Smith, Corporation Counsel, Middletown, for respondent in the second above-entitled proceeding.
    I. The properties are not exempt from taxation. (Matter of Greer Woodycrest Children’s Servs. v Fountain, 138 AD2d 709, 74 NY2d 749; Matter of Presbyterian Residence Ctr. Corp. v Wagner, 66 AD2d 998, 48 NY2d 885; People ex rel. Watchtower Bible & Tract Socy. v Haring, 8 NY2d 350; Matter of Yeshivath Shearith Hapletah v Assessor of Town of Fallsburg, 79 NY2d 244; Matter of Miriam Osborn Mem. Home Assn. v Assessor of City of Rye, 275 AD2d 714; Matter of Symphony Space v Tishelman, 60 NY2d 33; Matter of Association of Bar of City of N.Y. v Lewisohn, 34 NY2d 143; Matter of Belle Harbor Home of Sages v Tishelman, 100 Misc 2d 911, 81 AD2d 886; Catlin v Trustees of Trinity Coll., 113 NY 133; Buffalo City Cemetery v City of Buffalo, 46 NY 506.) II. Matter of Nassau County Hispanic Found. (Board of Assessors) (198 AD2d 357 [1993]) is valid precedent. (Matter of United Church Residences of Fredonia N.Y., Inc. v Newell, 43 AD3d 1403.) III. The reasonably incident test under Matter of St. Luke’s Hosp. v Boyland (12 NY2d 135 [1962]) does not support the petition. (New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568; People ex rel. Thomas S. Clarkson Mem. Coll. of Tech. v Haggett, 300 NY 595; Matter of Presbyterian Residence Ctr. Corp. v Wagner, 66 AD2d 998, 48 NY2d 885; Matter of Greer Woodycrest Children’s

      Servs. v Fountain, 138 AD2d 709, 74 NY2d 749; Miriam Osborn Mem. Home Assn. v Assessor of City of Rye, 14 Misc 3d 1209[A], 2006 NY Slip Op 52461[U]; Matter of Belle Harbor Home of Sages v Tishelman, 100 Misc 2d 911, 81 AD2d 886; Matter of Yeshivath Shearith Hapletah v Assessor of Town of Fallsburg, 79 NY2d 244; Matter of Beth Israel Hosp. Hous. Co. [Catherwood], 35 AD2d 397; Gospel Volunteers v Village of Speculator, 33 AD2d 407.) IV The precedent of this Court confirms that an exemption is not warranted. (Matter of Presbyterian Residence Ctr. Corp. v Wagner, 48 NY2d 885; Matter of Greer Woodycrest Children’s Servs. v Fountain, 74 NY2d 749; Matter of Adult Home at Erie Sta., Inc. v Assessor & Bd. of Assessment Review of City of Middletown, 36 AD3d 699, 8 NY3d 814.)
   OPINION OF THE COURT

Smith, J.

Two owners of property in the City of Middletown claim that their property is used for “charitable” purposes and so is exempt from real property tax. We hold that both property owners are correct.

Facts and Procedural History

The petitioners in these cases are Elant at Erie Station, Inc., formerly known as Adult Home at Erie Station, Inc. (AHESI), and Regional Economic Community Action Program, Inc. (RECAP).

AHESI

AHESI’s property is used for the operation of an “adult home,” defined by Social Services Law § 2 (25) as “an adult care facility established and operated for the purpose of providing long-term residential care, room, board, housekeeping, personal care . . . and supervision to five or more adults unrelated to the operator.” The home has a rate schedule, containing what both sides’ experts found to be “market” rates, but only about 10% of its residents pay those rates. Something over half the residents are eligible for Supplemental Security Income (SSI); their care is paid for, at a reduced rate, by the Social Security Administration. The remaining 30-plus percent of the residents, referred to by AHESI as “contract occupants,” pay for their own care, but are unable to afford the full market rate; they pay reduced fees determined by their assets and income. AHESI accepts all applicants qualified by age and medical condition, and has never turned away a would-be resident because of inability to pay the market rate.

The City rejected AHESI’s application for exemption from real property tax, and the Board of Assessment Review upheld the City’s determination. AHESI then sought judicial review of its assessments under article 7 of the Real Property Tax Law. Supreme Court decided, after an evidentiary hearing, that the property was not exempt. The Appellate Division reversed and upheld AHESI’s claim to an exemption. We granted leave to appeal, and now affirm the Appellate Division’s order.

RECAP

RECAP is a social work organization, devoted to combating homelessness, substance abuse and other social ills among low-income people in the Middletown area. RECAP owns homes in which participants in its “Community Re-Entry Program” live. They live there only for the “transitional” period until they have completed the program, though the transition is often lengthy. The City claims that almost half the residents have been in the homes for three years or more, but there is nothing in the record to show that any of the residents is not a bona fide program participant. RECAP receives rent from the properties comparable to rents charged by private landlords; the rent is paid partly by government agencies, and partly by the tenants themselves.

The City denied RECAP’s applications for tax exemptions, and RECAP brought a CPLR article 78 proceeding seeking to annul that decision. Supreme Court denied relief, and the Appellate Division affirmed. We granted leave to appeal, and now reverse.

Discussion

Real Property Tax Law § 420-a (1) (a) says:

“Real property owned by a corporation or association organized or conducted exclusively for religious, charitable, hospital, educational, or moral or mental improvement of men, women or children purposes, or for two or more such purposes, and used exclusively for carrying out thereupon one or more of such purposes either by the owning corporation or association or by another such corporation or association as hereinafter provided shall be exempt from taxation as provided in this section.”

This exemption is inapplicable when an officer, member or employee of the property owner receives a “pecuniary profit” from the activity involved, or when the organization is “a guise or pretense for . . . making any other pecuniary profit” (RPTL 420-a [1] [b]). The City does not claim that section 420-a (1) (b)’s exception to the exemptions applies here. Nor does the City dispute that both AHESI and RECAP are “organized or conducted exclusively for . . . charitable . . . purposes” within the meaning of RPTL 420-a (1) (a). The only question is whether their properties are “used exclusively for carrying out thereupon one or more of such purposes.” We conclude that they are.

I

The City treats AHESI as a provider of housing to the elderly, and says that its property is taxable under our decisions in Matter of Greer Woodycrest Children’s Servs. v Fountain (74 NY2d 749 [1989]) and Matter of Presbyterian Residence Ctr. Corp. v Wagner (48 NY2d 885 [1979], affg for reasons stated below 66 AD2d 998 [4th Dept 1978]). AHESI insists that it provides its residents not with “mere housing” but also with “a program of personal care.” We regard this difference in characterizations as unimportant. Assuming that AHESI’s property is used essentially for housing, the property is still tax exempt. Greer Woodycrest and Presbyterian hold that renting homes to elderly people who are not poor is not a “charitable” activity, but AHESI’s property is used to provide housing to poor people at below market rates. This is plainly a “charitable” purpose (see Matter of Belle Harbor Home of Sages v Tishelman, 100 Misc 2d 911 [Sup Ct, Queens County 1979], affd on op below 81 AD2d 886 [2d Dept 1981]).

Although RPTL 420-a (1) (a) says that exempt property must be “used exclusively” for charitable or other exempt purposes, we have held that the word “exclusively” is not to be read literally (Matter of Symphony Space v Tishelman, 60 NY2d 33, 38 [1983] [“In determining whether the real property of a corporation is used exclusively for the exempt purpose, the word ‘exclusive’ has been held to connote ‘principal’ or ‘primary’ ”]). Thus, the City does not argue that AHESI should lose its tax exemption solely because 10% of its residents—those who pay market rates—seem not to be receiving charity. The main dispute between the parties is whether the other 90% of the residents are poor enough to make AHESI’s activity “charitable.” The City does not dispute that the SSI recipients are poor enough (see Belle Harbor, 100 Misc 2d at 913 [property used primarily for charitable purposes where 90% of residents “have government benefits as their only source of income”]), but says that AHESI’s contract occupants—between 30% and 40% of the residents—are not.

We disagree. The record shows that, in computing rents charged to contract occupants, AHESI required them to pay all of their assets that exceeded the $2,000 maximum for SSI recipients, and also required them to pay all of their income with the exception of a $50 allowance for incidentals and an additional allowance for medical bills and medical premiums. People whose expenses for housing and medical care leave them with no more than $2,000 in assets and $50 in disposable income are poor by any reasonable definition. We see no basis, in precedent or logic, for the City’s proposed rule that only SSI recipients are poor enough to be objects of charity. We thus conclude that the Appellate Division correctly held AHESI’s property to be tax exempt.

II

RECAP unlike AHESI, receives market rents for its properties. Relying on Greer Woodycrest and Presbyterian, the City argues, and the courts below held, that this fact defeats RECAP’s claim to a tax exemption—that a property owner who receives the same rent as a commercial landlord cannot be using its property for charitable purposes. We find this analysis to be flawed.

RECAP’s charitable purpose is different from AHESI’s, and from the purposes at issue in Greer Woodycrest and Presbyterian. While AHESI may be viewed as supplying housing to the impoverished elderly, and the property owners in Greer Woody-crest and Presbyterian as supplying housing to the non-impoverished elderly, RECAP is engaged in social work, helping homeless people, alcoholics, drug addicts and other afflicted members of society to become productive and useful citizens. This is undoubtedly a charitable activity, and the City does not claim it is not.

The City’s argument is that RECAP’s social work is not, for the most part, done on the properties in question—these properties are simply residences. RECAP answers that the residences are made available only to participants in its program, and only while they are participating; it says that providing decent and affordable housing to participants furthers the program’s goals. RECAP says that this case is controlled by Matter of St. Luke’s Hosp. v Boyland (12 NY2d 135 [1962]). We agree.

The issue in St. Luke’s was whether certain apartment houses were being used “exclusively for . . . hospital . . . purposes” within the meaning of the predecessor statute to RPTL 420-a (1) (a). The apartments were rented to hospital employees and their immediate families, and we held that this was a “hospital” use within the meaning of the statute. The test, we said, is whether the apartments “are devoted to a use which ‘is reasonably incident’ to the major purpose of the hospital” (12 NY2d at 143, quoting People ex rel. Watchtower Bible & Tract Socy. v Haring, 8 NY2d 350, 358 [1960]). We noted that it was customary for hospitals to provide living accommodations for at least some employees, and that there was evidence that some nurses and technicians would not have accepted, or would have left, their employment with the hospital if living quarters had not been provided.

The residential use of RECAP’s property is no less “reasonably incident” to RECAP’s purposes than the use of the apartment buildings in St. Luke’s was to the hospital’s. It can hardly be questioned that providing an acceptable place for people to live while they participate in social work programs advances the goal of keeping them in the programs and thus of helping them overcome their troubles.

The courts below erred in concluding that, because RECAP receives fair market value for its properties, the properties are not distinguishable from a commercial apartment complex. The distinction is that apartments in commercial complexes are not provided solely to people struggling against alcoholism, drug addiction and the like on condition that they participate in programs designed to help them. That these people (or the government agencies that support them) pay market rents, and that RECAP may even benefit economically from its rental income, does not change the result. The issue is not whether RECAP benefits, but whether the property is “used exclusively” for RECAP’s charitable purposes. RECAP could lose its exemption under RPTL 420-a (1) (b) if the economic benefit went to its officers or employees personally, but an economic benefit to a charitable organization does not by itself extinguish a tax exemption. The question is how the property is used, not whether it is profitable. Matter of Nassau County Hispanic Found. (Board of Assessors) (198 AD2d 357 [2d Dept 1993]), which held otherwise, was incorrectly decided.

Ill

Accordingly, the order of the Appellate Division in the AHESI matter should be affirmed, with costs. The order of the Appellate Division in the RECAP matter should be reversed, with costs, the petition granted and the Commissioner of Assessment of the City of Middletown directed to grant RECAP a real property tax exemption for the tax year 2004/2005.

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

In Matter of Adult Home at Erie Sta., Inc. v Assessor & Bd. of Assessment Review of City of Middletown: Order affirmed, with costs.

In Matter of Regional Economic Community Action Program, Inc. v Bernaski: Order reversed, etc.


source: Caselaw Access Project

author:
Pigott, J.
      Jones, J. (dissenting).

license: Public Domain

text:
    [ 885 NE2d 176, 855 NYS2d 412]
    John Ramos, Respondent, v Howard Industries, Inc., Appellant.
    Argued February 6, 2008;
    decided March 13, 2008

      POINTS OF COUNSEL

      Connors & Vilordo, LLP, Buffalo (Lawrence J. Vilardo and Giuseppe A. Ippolito of counsel), and Law Offices of Walter R. Pacer, Jr. (James D. Schultz, Jr., of counsel), for appellant.
    I. In a products liability case where the product is not available, defendant shows its prima facie entitlement to summary judgment by demonstrating that the product was defect free when it left defendant’s control. (Zuckerman v City of New York, 49 NY2d 557; Wesp v Carl Zeiss, Inc., 11 AD3d 965; Maciarello v Empire Comfort Sys., 16 AD3d 1009; Speller v Sears, Roebuck & Co., 100 NY2d 38; Halloran v Virginia Chems., 41 NY2d 386.) II. Because defendant met its burden of establishing prima facie entitlement to summary judgment, plaintiffs failure to exclude all causes other than a manufacturing defect entitled defendant to summary judgment. (Zuckerman v City of New York, 49 NY2d 557; Wesp v Carl Zeiss, Inc., 11 AD3d 965; Speller v Sears, Roebuck & Co., 100 NY2d 38; Halloran v Virginia Chems., 41 NY2d 386; Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124; Amatulli v Delhi Constr. Corp., 77 NY2d 525; Santoni v Bertelsmann Prop., Inc., 21 AD3d 712; Curiale v Sharrotts Woods, Inc., 9 AD3d 473; Terry v Erie Foundry Co., 235 AD2d 414; Gern v Basta, 26 AD3d 807, 6 NY3d 715.)

      Cantor, Lukasik, Dolce & Panepinto, P.C., Buffalo (Stephen C. Halpern of counsel), for respondent.
    I. The court below correctly ruled that defendant did not meet its burden in seeking summary judgment because it tried to meet that burden by advancing alternative theories of causation and then failed to submit evidence in admissible form supporting those theories. (Taft v Sports Page Shop, 226 AD2d 974; Graham v Pratt & Sons, 271 AD2d 854; Peris v Western Regional Off-Track Betting Corp., 255 AD2d 899; Speller v Sears, Roebuck & Co., 100 NY2d 38; Riglioni v Chambers Ford Tractor Sales, Inc., 36 AD3d 785; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065; Levitt v County of Suffolk, 145 AD2d 414; Baly v Chrysler Credit Corp., 94 AD2d 781; Coley v Michelin Tire Corp., 99 AD2d 795; Narciso v Ford Motor Co., 137 AD2d 508.) II. Contrary to defendant’s argument, where the product is missing, plaintiff does not have the burden to exclude all other possible causes at the summary judgment phase, but rather must only raise questions of fact. (Speller v Sears, Roebuck & Co., 100 NY2d 38; Kriz v Schum, 75 NY2d 25; Saunders v Farm Fans, div. of ffi Corp., 24 AD3d 1173; Halloran v Virginia Chems., 41 NY2d 386.) III. Defendant proposes new standards for a manufacturer to meet on summary judgment where the product is missing. Those new standards would alter the existing criteria established by this Court in Speller v Sears, Roebuck & Co. (100 NY2d 38 [2003]), conflate the proof needed to prove a design versus a manufacturing defect, and advance requirements which defendant’s own affidavits do not meet. (Jemmott v Rockwell Mfg. Co., Power Tools Div., 216 AD2d 444; McCarthy v Olin Corp., 119 F3d 148; Gian v Cincinnati Inc., 17 AD3d 1014; Lamb v Kysor Indus. Corp., 305 AD2d 1083; Maciarello v Empire Comfort Sys., 16 AD3d 1009; Wesp v Carl Zeiss, Inc., 11 AD3d 965; Bauer v Bashline Indus., 219 AD2d 841; Hunter v Ford Motor Co., 37 AD2d 335.) IV Even if this Court rules that defendant met its burden in moving for summary judgment, plaintiff met his responsive burden when his expert addressed each of defendant’s theories of alternative causation and raised questions of fact about each one. (Speller v Sears, Roebuck & Co., 100 NY2d 38; Kriz v Schum, 75 NY2d 25; Abato v Millar El. Serv. Co., 261 AD2d 873; Regelski v Weber, 209 AD2d 965; Luthart v Danesh, 201 AD2d 930; Cooper v City of Rochester, 16 AD3d 1117; Salva v Blum, 277 AD2d 985; Hart v Bruno Mach. Corp., 250 AD2d 58.) V. Plaintiffs expert affidavit is founded on a valid evidentiary basis, including the testimony of eyewitnesses to the explosion, an analysis of the tests performed by defendant, and industry data on the frequency and causes of transformer explosions. (Curiale v Sharrotts Woods, Inc., 9 AD3d 473; Amatulli v Delhi Constr. Corp., 77 NY2d 525; Romano v Stanley, 90 NY2d 444; Torres v W.J. Woodward Constr., Inc., 32 AD3d 847; Rutherford v Signode Corp., 11 AD3d 922; Canales v Hustler Mfg. Co., 12 AD3d 392; Browne v Big V Supermarkets, 188 AD2d 798, 81 NY2d 708; Castro v Delta Intl. Mach. Corp., 309 AD2d 827; Speller v Sears, Roebuck & Co., 100 NY2d 38.) VI. Even if this Court concludes that (1) defendant met its burden in moving for summary judgment and (2) plaintiffs expert affidavit has no validity, there still are questions of fact in the record about the cause of the transformer explosion that require this Court to deny summary judgment.
   OPINION OF THE COURT

Pigott, J.

In this products liability action, defendant manufacturer was denied summary judgment dismissing plaintiff’s complaint. Because we conclude that defendant met its initial burden by presenting competent evidence that its product was not defective and plaintiff failed to create an issue of fact excluding all other causes for the product’s failure not attributable to defendant, we reverse the Appellate Division order and dismiss the complaint.

In June 1997, plaintiff John Ramos sustained personal injuries when a transformer designed and manufactured by defendant Howard Industries, Inc. allegedly exploded. According to plaintiff, the explosion occurred shortly after he energized the transformer in the course of his employment as a lineman for nonparty Niagara Mohawk Power Corporation. Initially, plaintiff reported to his employer and doctors that he was injured when he reached out of an aerial bucket while installing the transformer on a utility pole. More than two years later, however, plaintiff claimed that the transformer exploded, the force of which caused him to fall inside the bucket, injuring his back. By that time, the transformer could not be located for inspection or testing to determine the cause of its failure. Plaintiff explained that he failed to promptly disclose the transformer explosion because he feared disciplinary action or the loss of certain employment-related benefits.

In May 2000, plaintiff commenced this products liability action, alleging that the transformer was defectively designed and manufactured. Following discovery, defendant moved for summary judgment dismissing the complaint. In support of its motion, defendant submitted the affidavit of an expert engineer who, after visiting defendant’s plant, concluded that its manufacturing processes, quality control, testing and inspection were “current and state-of-the-art.” The expert noted that an internal electrical fault could cause an explosion as described by plaintiff, but concluded that such a defect “would have been readily identified at several stages of the manufacturing process.” He stated that, “[g]iven the various stages of testing and inspection, it [was] virtually impossible for a transformer with an internal fault to leave [defendant’s] plant.” The expert also concluded that defendant’s manufacturing processes complied with all applicable industry standards and Niagara Mohawk’s specifications, and that the transformer in question would have been individually tested to ensure compliance with such requirements. He posited other possible causes of the explosion, such as Niagara Mohawk employees negligently rewiring or rebuilding the transformer, or the potential creation of “an internal fault” during rewiring by dropping a metal object inside the transformer, “which could cause the transformer to overheat the insulating oil within the tank and result in the cover being forced off the transformer.”

In opposition to defendant’s motion, plaintiff offered the affidavit of an expert engineer, who asserted that the transformer was defectively designed and manufactured because it “experienced an internal electrical fault due to defective coil/windings and/or insulation.” Plaintiff’s expert further stated that the “electrical fault generated excessive heat within the transformer’s tank and superheated the oil contained therein” causing “excessive internal vapor pressure to build up, and ultimately produced the explosion.” The expert also asserted that two safety devices placed on the transformer by defendant failed to operate and prevent the explosion. In addition, the expert rejected the theories presented by defendant to explain the explosion other than a manufacturing defect.

Supreme Court denied defendant’s motion for summary judgment. It concluded that, although defendant’s expert’s assertion that a defect in the transformer would have been readily identified during the manufacturing process “might be a sufficient statement to obtain Summary Judgment if other causes of the accident were excluded,” here, “other possible causes of the accident have not been excluded by the Defendant in the first instance.”

The Appellate Division, with one Justice dissenting, affirmed, but for different reasons than Supreme Court. The court held that defendant failed to meet its burden on summary judgment, concluding that its evidence “does not establish as a matter of law that the transformer was not defective and that a manufacturing defect therefore did not cause the explosion” (38 AD3d 1163, 1164 [4th Dept 2007]). That court thereafter granted defendant leave to appeal and certified the following question: “Was the order of this Court, entered March 16, 2007, properly made[?]” We answer the question in the negative, reverse the order of the Appellate Division and grant defendant’s motion for summary judgment dismissing the complaint.

It is well settled that a products liability cause of action may be proven by circumstantial evidence, and thus, a plaintiff need not identify a specific product defect (see Speller v Sears, Roebuck & Co., 100 NY2d 38, 41 [2003]; Halloran v Virginia Chems., 41 NY2d 386, 388 [1977]; Codling v Paglia, 32 NY2d 330, 337 [1973]). “In order to proceed in the absence of evidence identifying a specific flaw, a plaintiff must prove that the product did not perform as intended and exclude all other causes for the product’s failure that are not attributable to defendants” (Speller, 100 NY2d at 41, citing Halloran, 41 NY2d at 388 [other citation omitted]). If, however, a plaintiff is unable to prove both elements, “a jury may not infer that the harm was caused by a defective product unless plaintiff offers competent evidence identifying a specific flaw” (Speller, 100 NY2d at 42).

In Speller, the plaintiffs alleged that a defective refrigerator caused a house fire. The manufacturer and retailer moved for summary judgment dismissing the complaint, offering evidence of an alternative cause of the fire, i.e., a stovetop grease fire. We stated that, “[i]n order to withstand summary judgment, plaintiffs were required to come forward with competent evidence excluding the stove as the origin of the fire” (id. at 42). Based on plaintiffs’ three expert opinions, which concluded that the fire originated in the refrigerator and not from the stove, we held “that plaintiffs raised a triable question of fact by offering competent evidence which, if credited by the jury, was sufficient to rebut defendants’ alternative cause evidence” (id. at 43). Put another way, we stated, “based on plaintiffs’ proof, a reasonable jury could conclude that plaintiffs excluded all other causes of the fire” (id.).

Here, contrary to the Appellate Division’s conclusion, defendant established its prima facie entitlement to judgment as a matter of law. Without the product available for testing and inspection (admittedly caused by plaintiff’s lengthy delay in reporting the incident), defendant was unable to provide an expert opinion based upon an examination of the transformer. Instead, defendant presented competent evidence demonstrating that its transformers were designed and manufactured under state of the art conditions according to Niagara Mohawk’s specifications and that its manufacturing process complied with applicable industry standards. The evidence further demonstrated that each transformer was individually tested before leaving defendant’s plant and that in light of such testing and inspection, its expert concluded that it was “virtually impossible for a transformer with an internal fault to leave [defendant’s] plant.” Defendant’s expert affidavit also posited other possible causes of an explosion that may have been introduced while the transformer was rewired or rebuilt by Niagara Mohawk employees after it left defendant’s possession.

Because defendant met its initial burden, in order to defeat summary judgment, plaintiff must raise “a triable question of fact by offering competent evidence which, if credited by the jury, [i]s sufficient to rebut defendant’s] alternative cause evidence” (Speller, 100 NY2d at 43). An expert’s affidavit—offered as the only evidence to defeat summary judgment—“must contain sufficient allegations to demonstrate that the conclusions it contains are more than mere speculation and would, if offered alone at trial, support a verdict in the proponent’s favor” (Adamy v Ziriakus, 92 NY2d 396, 402 [1998] [quoted case omitted]; see also Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002] [“Where the expert’s ultimate assertions are speculative or unsupported by any evidentiary foundation, . . . the opinion should be given no probative force and is insufficient to withstand summary judgment”]).

Plaintiff failed to present evidence excluding all other causes for the transformer’s malfunction not attributable to defendant such that a reasonable jury could find that the transformer was defective in the absence of evidence of a specific defect. Although a plaintiff is not required to identify a specific defect in a circumstantial case, plaintiffs theory here—that the explosion resulted from a manufacturing defect in the form of an “internal electrical fault”—is pure speculation. Furthermore, as noted by the Appellate Division dissent, plaintiffs expert failed to exclude the possibility presented by defendant’s expert that the transformer exploded because it was improperly rewired or rebuilt by Niagara Mohawk employees after leaving defendant’s possession. In sum, based on plaintiffs proof, a reasonable jury could not conclude that all other causes of the transformer explosion were excluded, and thus, plaintiffs manufacturing defect claim fails as a matter of law.

Accordingly, the order of the Appellate Division should be reversed, with costs, defendant’s motion for summary judgment dismissing the complaint granted and the certified question answered in the negative.

Jones, J. (dissenting).

The issue before the Court is whether defendant Howard Industries, Inc. is entitled to summary judgment when the object of the products liability action was unavailable for inspection or testing. Because I think that this question should be answered in the negative, I respectfully dissent.

The majority relies on defendant’s evidence, proffered by expert affidavit, that states that “its transformers were designed and manufactured under state of the art conditions” according to specifications and that “its manufacturing process complied with applicable industry standards” (majority op at 223). The majority also relies on statements “that each transformer was individually tested before leaving defendant’s plant” and that it would be “virtually impossible for a transformer with an internal fault to leave [defendant’s] plant” (id. at 224). In my view, this showing is insufficient to entitle defendant to judgment as a matter of law.

The available inference from defendant’s bare assertions— that this transformer could not have left its plant with a defect—is purely speculative. Defendant’s own expert conceded as much: “without the transformer to test and examine, there is simply no evidence or proof that [defendant] sold a transformer containing a defect.”

Yet, defendant’s experts proceeded to speculate as to possible causes of the explosion, of course, excluding a manufacturing defect. For example, they posited numerous theories: that a negligent worker could have “inadvertently cause[d] an internal short (fault) by permitting the wires to become kinked”; that a negligent worker could have dropped “an object such as a nut, metal tool or other conductive material” into the transformer; that the transformer may have been rebuilt by Niagara Mohawk; or that a negligent worker could have allowed rainwater to enter the transformer while it was being rewired.

Although the majority correctly states the law in its discussion of Speller v Sears, Roebuck & Co. (100 NY2d 38 [2003]), that case is distinguishable. After the defendant in Speller presented its theory of the cause of the house fire (i.e., grease fire began on top of kitchen stove), plaintiff, who had access to the refrigerator, kitchen and the stove, was able to come forward with competent evidence to exclude the stove as the origin of the fire (see id. at 42-43). With a finite number of potential causes of the fire, it was proper, in that case, to permit possible alternative causes to satisfy movant’s initial burden and, indeed, nonmovant’s burden. In other words, each party in Speller benefitted by the factual scenario such that, on their respective burdens, each could proffer equally plausible, narrowing theories of causation adequate on a motion for summary judgment.

Here, on the other hand, defendant speculated as to possible causes of the transformer explosion which, according to its own experts, could not be established, while plaintiff was expected to exclude these very causes. The unique facts surrounding the unavailability of the transformer are equally disadvantageous, and neither party could definitively establish entitlement to judgment as a matter of law. Accordingly, the burden shifting exercise in this case is impractical, thus rendering these facts fundamentally unlike Speller (cf. Speller, 100 NY2d at 43). In sum, by giving credence to defendant’s bare, obviously self-serving assertions that permit a weak inference of no defect, the result here unjustifiably disadvantages the nonmovant.

Accordingly, I would hold, as did the Appellate Division, that defendant failed to meet its burden, thus obviating the need to consider the adequacy of plaintiffs submissions in opposition.

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

Order reversed, etc.


author: Pigott, J.

text:
    [ 885 NE2d 181, 855 NYS2d 417]
    The People of the State of New York, Respondent, v Jose Martin Taveras, Also Known as Jose Martin Tavares, Also Known as Jose Taveras, Appellant. The People of the State of New York, Respondent, v Anthony Jones, Appellant.
    Argued February 7, 2008;
    decided March 18, 2008

      POINTS OF COUNSEL

      Center for Appellate Litigation, New York City (Jonathan M. Kirshbaum and Robert S. Dean of counsel), for appellant in the first above-entitled action.
    The pending appeal of a former fugitive should not be dismissed under the fugitive disentitlement doctrine when defendant is available to obey the mandate of the court and the Appellate Division can engage in a full review of the trial court proceedings; alternatively, a former fugitive’s appeal should only be dismissed if the escape had a nexus to, or a significant effect on, the appellate process, which did not occur here. (People v Sullivan, 28 NY2d 900, 29 NY2d 552; Degen v United States, 517 US 820; Ortega-Rodriguez v United States, 507 US 234; Smith v United States, 94 US 97; Hanson v Phillips, 442 F3d 789; Goeke v Branch, 514 US 115; Estelle v Dorrough, 420 US 534; Allen v Georgia, 166 US 138; Eisler v United States, 338 US 189; Bonahan v Nebraska, 125 US 692.)

      Robert M. Morgenthau, District Attorney, New York City (Nicole Beder and Alan Gadlin of counsel), for respondent in the first above-entitled action. The
    Appellate Division properly exercised its discretion in dismissing the appeal, as defendant forfeited any right to appeal by absconding. (People v Gomcin, 95 NY2d 821; People v Perez, 38 NY2d 904; Matter of Skiff-Murray v Murray, 305 AD2d 751; People v Genet, 59 NY 80; Estelle v Dorrough, 420 US 534; Allen v Georgia, 166 US 138; Molinaro v New Jersey, 396 US 365; People v Gilestrella, 127 Misc 2d 356; United States v Persico, 853 F2d 134; United States v Baccollo, 725 F2d 170.)

      Center for Appellate Litigation, New York City (Peter Theis and Robert S. Dean of counsel), for appellant in the second above-entitled action.
    The Appellate Division’s summary dismissal of defendant’s appeal, from the People’s urging that his former fugitive conduct disentitled him to appellate review, was improper. (Smith v United States, 94 US 97; Bonahan v Nebraska, 125 US 692; Eisler v United States, 338 US 189; Molinaro v New Jersey, 396 US 365; Ortega-Rodriguez v United States, 507 US 234; People v Genet, 59 NY 80; People v Sullivan, 28 NY2d 900; People v Casiel, 33 NY2d 791; People v Perez, 38 NY2d 904; People v Parmaklidis, 38 NY2d 1005.)

      Robert T. Johnson, District Attorney, Bronx (Jean Soo Park and Joseph N. Ferdenzi of counsel), for respondent in the second above-entitled action.
    Defendant forfeited his right to appeal when he elected to become a fugitive from justice for almost 18 years. (People v Eldridge, 31 NY2d 820; Martinez v Court of Appeal of Cal., Fourth Appellate Dist., 528 US 152; People v Genet, 59 NY 80; People v Sullivan, 28 NY2d 900, 29 NY2d 552; People v Casiel, 42 AD2d 762, 33 NY2d 791, 39 NY2d 912; People v Shaw, 133 Misc 2d 862, 72 NY2d 838, 950; People v Corley, 77 AD2d 835, 52 NY2d 783, 57 NY2d 861; People v Moses, 91 AD2d 239, 59 NY2d 667, 60 NY2d 682; People v Diaz, 70 AD2d 1061, 49 NY2d 760, 51 NY2d 766; People v Estrada, 173 AD2d 555.)
   OPINION OF THE COURT

Pigott, J.

In these unrelated criminal proceedings, defendants Jose Martin Taveras and Anthony Jones appeal from trial judgments of conviction and resultant sentences imposed “in absentia.” Notices of appeal were timely filed in both instances, but no effort to perfect or dismiss the appeals was made during the time defendants were fugitives.

Defendant Taveras was captured eight years after his failure to appear for trial; defendant Jones was apprehended nearly 18 years after absconding during jury selection. Because the appeals were still pending at the time of each defendant’s capture and return to the jurisdiction, defendants attempted to prosecute their appeals, but the Appellate Division dismissed each appeal. A Judge of this Court granted leave in each case.

People v Taveras

In October 1984, defendant Jose Martin Taveras and his co-defendant entered an apartment in New York City with the intent to steal cocaine and money. They assaulted and choked one victim into unconsciousness and stabbed and tortured another. The former victim recovered; the latter victim died. After his arrest, defendant attempted to bribe law enforcement officers in an attempt to facilitate his release.

Defendant was charged with two counts of murder in the second degree, and one count each of attempted murder in the second degree, criminal possession of a weapon in the third degree and bribery in the second degree. He remained free on bail pending his trial, which was scheduled for November 1986. When defendant failed to appear, Supreme Court issued a bench warrant for his arrest. In January 1987, defendant was arrested on the warrant and a new trial date was set for May 1988. Defendant remained at liberty.

While awaiting trial on the state charges, defendant was arrested and charged in November 1987 with federal drug charges. In February 1988, he pleaded guilty to those charges and was once again released on bond. Coincidentally, his sentencing on the federal charges was scheduled on the same date that his state trial was to commence.

Defendant failed to appear for either his state trial or his federal sentencing. Supreme Court once again issued a bench warrant for defendant’s arrest and conducted a hearing pursuant to People v Parker (57 NY2d 136, 142 [1982]), ultimately concluding that defendant would be tried in absentia. Defendant was convicted on several counts and sentence imposed. Defense counsel filed a timely notice of appeal in June 1988. Eight years later, defendant was apprehended in Florida and charged with bail jumping in relation to his federal convictions. The federal court in Florida imposed a determinate prison term of 121 months to run concurrently with his state sentence. Upon his return to New York in December 1997, defendant began his state sentence.

Defendant was not at first aware that his prior attorney had filed a timely notice of appeal nine years before. Even after he discovered this fact in late 2000 or early 2001, several more years were consumed in state appellate and federal habeas corpus litigation, ending with a decision in 2006 in which the United States Court of Appeals for the Second Circuit held that defendant had not lost his right to the assignment of counsel on the appeal (Taveras v Smith, 463 F3d 141, 151-152 [2d Cir 2006]). Counsel was appointed and submitted a brief.

In November 2006, the People moved to dismiss defendant’s appeal, arguing that by absconding defendant had forfeited and abandoned his appellate rights and thus the Appellate Division should refuse to consider the merits. Defendant opposed the motion, arguing that because he was currently under the jurisdiction of the courts, he was entitled to one appeal as of right, pointing out that he had already filed his appellate brief and had at least one winning issue on appeal. After considering the People’s motion and defendant’s response, the Appellate Division, First Department dismissed the appeal.

People v Jones

In 1987, defendant Anthony Jones was charged with burglary in the first degree, burglary in the second degree, robbery in the second degree, robbery in the third degree and assault in the second degree. Defendant was alleged to have followed the victim into her apartment, locked the door and demanded that she give him money. When she refused, he punched her in the face, grabbed her purse and took money from it.

Defendant, who remained at liberty up until his trial date, absconded during jury selection, notwithstanding the fact that Supreme Court had admonished defendant that he would be tried and sentenced in absentia in the event he did not appear for trial. Supreme Court issued a bench warrant and, after conducting a Parker hearing, allowed the trial to go forward without defendant. A jury found defendant guilty of, among other things, burglary in the second degree and robbery in the third degree, and he was sentenced in absentia to concurrent prison terms of 7 to 14 years on each count. Defense counsel filed a timely notice of appeal.

Seventeen years later, in October 2005, defendant was arrested on a bench warrant and returned to the jurisdiction of the court. In April 2006, he was resentenced to 3 to 6 years on the robbery count because the previously imposed 7 to 14 year sentence was illegal. Defendant thereafter moved at the Appellate Division for poor person relief and, on May 9, 2006, filed a notice of appeal from the judgment on resentencing.

The People opposed defendant’s motion for poor person relief to the extent it sought relief relating to the appeal from the August 1, 1988 judgment of conviction, and cross-moved to dismiss the appeal from that judgment, contending that the May 9, 2006 notice of appeal should be construed as being an appeal from the April 2006 judgment on resentencing only. The People further argued that it had been nearly 18 years since the August 1988 notice of appeal had been filed and that defendant had neither perfected his appeal nor requested an extension of time to do so. Moreover, according to the People, defendant was not entitled to have his appeal heard because he disregarded the laws and courts of this State by absconding. The Appellate Division granted defendant’s motion for assignment of appellate counsel, but then granted the People’s motion dismissing defendant’s appeal of the August 1988 conviction.

Analysis

Neither of these appeals implicate the so-called fugitive disentitlement doctrine, which allows appellate courts to dismiss appeals of fugitive defendants who are at large while their appeals are pending, the rationale being that the defendant’s escape “disentitles the defendant to call upon the resources of the Court for determination of his claims” (see Molinaro v New Jersey, 396 US 365, 366 [1970]; see also Estelle v Dorrough, 420 US 534, 537 [1975], reh denied 421 US 921 [1975]). Considerations underlying the doctrine include, among other things, that the courts should not expend resources hearing an appeal when any judgment they would issue could not be enforced (see Smith v United States, 94 US 97, 97 [1876]), nor should courts be required to “adjudicate the merits of a criminal case after the convicted defendant who has sought review escapes from the restraints placed upon him pursuant to the conviction” (Molinaro, 396 US at 366).

Here, however, in neither Taveras nor Jones did the People move to dismiss the appeals during the defendants’ absences, although they clearly had the opportunity to do so. As a result, the appeals remained pending during the entire time defendants were fugitives, and were dismissed only after defendants had been returned to custody and attempted to pursue them. Because each defendant was no longer a fugitive, and was subject to the mandates of the court at the time the motions to dismiss the appeals were brought, the fugitive disentitlement doctrine could not apply as an automatic forfeiture of his right to pursue his timely appeal.

Instead, whether such appeals should be permitted to proceed is subject to the broad discretion of the Appellate Division (see CPL 470.60 [1]). In exercising its discretion, the Appellate Division may consider whether defendant’s flight caused “a significant interference with the operation of [the] appellate process” (Ortega-Rodriguez v United States, 507 US 234, 250 [1993]); whether defendant’s absence so delayed the administration of justice that the People would be prejudiced in locating witnesses and presenting evidence at any retrial should the defendant be successful on appeal (id. at 249; People v Parker, 57 NY2d at 142); the length of the defendant’s absence; whether defendant voluntarily surrendered; the importance and novelty of the issues raised on appeal (see People v Smith, 44 NY2d 613 [1978]); and the merits of the appeal.

Here, it cannot be said that the Appellate Division abused its discretion in dismissing these appeals. In Taveras, the People established that they would suffer prejudice due to defendant’s nine-year absence, including the difficulty of locating a key witness to the crimes 22 years after the fact, rendering it almost impossible to re-try the case should defendant obtain an appellate ruling in his favor. Similarly, in Jones, the People established that they would suffer prejudice due to defendant’s 18-year absence. In the event defendant was successful on appeal and required a new trial, the People’s case would be hampered by having to locate and prepare witnesses whose memories would have likely faded, thereby affecting the People’s ability to sustain their burden at trial.

We note that defendant Taveras is not foreclosed from challenging his purported illegal sentence pursuant to CPL 440.20. Similarly, defendant Jones’s appeal of his claimed illegal sentence remains and he has been granted poor person status.

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

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

In each case: Order affirmed.


author: Read, J.

text:
    [ 885 NE2d 185, 855 NYS2d 421]
    Brian R. McCurdy, Respondent, v State of New York, Appellant.
    (Claim No. 101492.)
    Argued and submitted February 12, 2008;
    decided March 20, 2008

      POINTS OF COUNSEL

      Andrew M. Cuomo, Attorney General, Albany (Michael S. Buskus, Barbara D. Underwood, Andrew D. Bing and Peter H. Schiff of counsel), for appellant.
    Temporary easements of road frontage that result in only brief intervals of obstruction of interior acreage should be valued on the basis of rental value of the easement for its duration, plus the rental value of the interior acreage only when actual obstruction occurs. (Village of Highland Falls v State of New York, 44 NY2d 505; United States v General Motors Corp., 323 US 373; Spencer v State of New York, 206 App Div 376; Mazzeo v State of New York, 58 Misc 2d 186; Pomeroy v State of New York, 18 Misc 2d 377; Matter of County of Nassau [Minkin], 148 AD2d 533; Spinner v State of New York, 4 AD2d 987; Great Atl. & Pac. Tea Co. v State of New York, 22 NY2d 75; Garfield Homes v State of New York, 44 Misc 2d 738; Kauffman v State of New York, 43 AD2d 1004, 36 NY2d 745.)

      Flower, Medalie & Markowitz, Bay Shore (Donald Markowitz of counsel), for respondent.
    The State of New York’s appeal is based on a misapplication of this Court’s decision in Village of Highland Falls v State of New York (44 NY2d 505 [1978]). (Matter of Kadlec v State of New York, 264 AD2d 420; Spinner v State of New York, 4 AD2d 987; Morton v State of New York, 8 AD2d 49, 6 NY2d 993.)
   OPINION OF THE COURT

Read, J.

This appeal calls upon us to decide the proper measure of damages when a condemnor takes a temporary easement that encumbers a vacant parcel’s entire highway frontage. We hold that damages in this case should be awarded in line with the formula set out in Village of Highland Falls v State of New York (44 NY2d 505 [1978])—i.e., the rental value of the land encompassed within the temporary easement for so long as the easement is in effect plus, as consequential damages, the rental value of the parcel’s unencumbered interior acreage for any period of time when highway access was not possible by virtue of the easement’s use. A condemnee is entitled to consequential damages comprising the rental value of the parcel’s unencumbered interior acreage for the easement’s duration only if the condemnor does not meet its burden of proving the interval of actual obstruction, or the condemnee establishes that the mere existence of the temporary easement did, in fact, impede sale or development of the property for its highest and best use. Here, the condemnor, the State of New York, met its burden, while claimant Brian R. McCurdy, the condemnee, did not show that the temporary easement thwarted the highest and best use of his property. The award must therefore be vacated, and, upon remittal, the Court of Claims should calculate consequential damages and interest in conformity with our decision in Village of Highland Falls.

I.

In 1980, claimant purchased a vacant, unimproved parcel of land in the Town of Islip. The parcel, comprising 10,888 square feet (0.25 acres) and shaped like a parallelogram, is 150 feet deep with 75 feet of frontage on the north side of the Montauk Highway (State Route 27A), a heavily traveled four-lane east/ west thoroughfare. The property is a cleared, level, grassy plot at road grade, and is zoned for residential use; it neighbors a comparably sized and shaped parcel located on the corner of the Montauk Highway and Pease Lane, a north/south road. Claimant is a dentist whose office is located in a two-story wood frame structure on this adjoining parcel.

In April 1999, the State of New York, in connection with a highway reconstruction project, permanently appropriated a 71-square-foot slice of claimant’s land abutting the Montauk Highway. This slice, which was about 2.5 feet deep at the southeastern corner of claimant’s parcel, tapered to meet the property line midway along its border with the highway. For grading purposes, the State also acquired a temporary easement over a 679-square-foot strip of land that spanned the entire front of the parcel to a depth of roughly 10 feet. The temporary easement read as follows:

“TEMPORARY EASEMENT FOR GRADING
“A temporary easement to be exercised in, on and over the property above delineated for the purpose of grading for use and exercisable during the construction of the highway and terminating upon approval of the completed work, unless sooner terminated or deemed no longer necessary for highway purposes and released by the Commissioner of Transportation. . . .
“RESERVING, however, to the owner of any right, title, or interest in and to the property mapped above and such owner’s successors or assigns, the right of using said property and such use shall not be further limited or restricted under this easement beyond that which is necessary to effectuate its purposes for, and as established by, the construction, and as so constructed, the maintenance, of the herein identified project.”

These permanent and temporary takings allowed the State to repave the highway; install concrete curbing, a sidewalk, a driveway apron and a decorative brick utility strip; and relocate a fire hydrant.

Claimant timely commenced a proceeding in the Court of Claims to seek damages resulting from the partial appropriation and the taking of the temporary easement. At trial, the parties stipulated that the damages for the permanent taking in fee amounted to $850; the land value of the property both before and after the appropriation was $8.75 per square foot; the vesting date for both the taking in fee and the temporary easement was April 7, 1999; the temporary easement terminated on February 1, 2001; and claimant owned the parcel on the vesting and expiration dates. They disputed only how to calculate consequential damages for the temporary easement. Claimant contended that, in light of the Appellate Division’s decision in Matter of Kadlec v State of New York (264 AD2d 420 [2d Dept 1999]), which involved an identically worded temporary easement encumbering a vacant parcel’s entire highway frontage, the State was required to pay the rental value for the whole parcel for the full period of time the easement was in effect, regardless of whether or for how long access to the Montauk Highway was actually obstructed; the State countered that it was obligated to award consequential damages for the parcel’s unencumbered interior acreage only for those days when access was, in fact, blocked.

Claimant’s appraiser testified that the highest and best use of the property was to develop it “as a single tenant medical office building which would be in character with the surrounding properties” because “[a]s other parcels have been rezoned, there’s been a transition in the neighborhood from residences] to GST zoning which would permit offices”: there was a hospital nearby and “many of the properties along Montauk Highway for a half a mile east and west [had been] improved with converted homes and one-story office and two-story office buildings, attended by medical uses.” Claimant’s appraiser opined that the Town would likely grant a request for the necessary rezoning; however, so long as the State’s temporary easement was in place “a developer would not be interested in developing [the subject] property . . . because they [had] absolutely no way to enter into [it]” since “[t]here was no access via any other means . . . than [the] Montauk Highway.” While development of the parcel as a single-tenant medical office building would concededly also require the Town to approve a variance from the zoning ordinance’s minimum yard width (100 feet), claimant’s appraiser offered no opinion as to the likelihood of this happening; when pressed, she acknowledged that her report cited no examples where the owner of a parcel had obtained relief from both the relevant zoning and yard-width requirements. She testified that 12% was the proper rate of return on the property’s land value for purposes of calculating rental value.

The State called an employee of the New York State Department of Transportation (DOT), who testified that, upon searching DOT’S records from 1983 forward, she found no highway work permit authorizing claimant to construct an entrance connecting the parcel to the Montauk Highway (see Highway Law § 52 [generally requiring a permit prior to construction or improvement within a state highway right-of-way]). In addition, the veteran DOT engineer in charge of the project testified that claimant’s parcel had been, in fact, physically accessible from the Montauk Highway while the temporary easement was in effect except for a period of 7 to 10 days. Further, claimant could have obtained access upon request during those 7 to 10 days since DOT would have accommodated him “[b]y staging construction so that only a portion of the frontage of the property [was] encumbered at any one time.” Finally, the DOT engineer testified that equipment and materials were never stored on the temporary easement because this would have created “a safety hazard,” and the contractor maintained a staging area elsewhere.

Next, portions of claimant’s deposition testimony were read into the record. These excerpts established that claimant did not own the property on the corner of Pease Lane and the Montauk Highway where his dental office was located; that “Muring the entire time . . . [he] owned” the subject parcel, there was never a structure on it; that “in conjunction with [his] dental office! ]” cars were “sometimes” parked on the parcel, but these cars “enter[ed] off Pease Lane” rather than from the Montauk Highway; that he had never “applied to any governmental agency for a permit to develop [the parcel]”; and that, prior to the taking and the acquisition of the temporary easement, he did not “make it a custom and habit to drive onto the [parcel] from [the] Montauk Highway.”

Finally, the State called an appraiser to rebut claimant’s appraiser’s testimony. He pointed out that the temporary easement expressly reserved to claimant the right to use the property except as necessary for DOT to construct and maintain the project. In addition, he noted that there was no evidence of denial of access, or of any use of the easement other than for grading. Based upon these considerations, the State’s appraiser opined that claimant’s remainder property was available for development during the temporary easement’s term. In response to questioning by the trial court, however, he conceded that “[i]f there was a denial of access during the construction period, then . . . that would negatively impact the property.”

In its subsequent decision, the Court of Claims accepted claimant’s theory of consequential damages, and so awarded him the rental value of the entire remainder property for the easement’s duration, plus statutory interest. The trial court’s decision was based entirely on Kadlec, which he interpreted as affording no leeway to favor the State’s “fact-based analysis (i.e. Claimant never attempted to develop the subject property or apply for a highway work permit) or the opinion of its expert that the temporary easement did not prevent Claimant from accessing the subject.” To the contrary, “where as here—and as in Kadlec—a subject’s only access to a public roadway is compromised by an easement running the entire length of that frontage, the Court must find that access is denied and development impaired, resulting in a de facto taking” (emphasis added). The Appellate Division subsequently affirmed on the rationale that “[t]he record supports . . . that the temporary easement . . . rendered the claimant’s remaining property inaccessible and, thus, unavailable for development for the period of time that the temporary easement was in existence” (McCurdy v State of New York, 37 AD3d 779, 781 [2d Dept 2007]). We subsequently granted the State leave to appeal.

II.

In Village of Highland Falls, the Court of Claims awarded the rental value of the claimant’s property for the entire duration of the temporary easement (the precise measure adopted by the lower courts in this case), but the Appellate Division modified and reduced the award to the rental value of the claimant’s property for the three days in which its use was actually interrupted by the State’s easement (the precise measure of damages urged by the State here). The property in question was improved by a municipal water treatment facility, which occupied a portion of the tract subject to the temporary easement.

We affirmed the Appellate Division, stating that

“[t]he general rule is that property taken in eminent domain is to be valued prospectively from the time of appropriation ....
“When a temporary easement, contemplating only incidental and contingent use, is appropriated, rather than a permanent interest, however, it may be somewhat more acceptable to permit the use of hindsight in valuing the interest taken. If the condemnation award is made after the easement has expired, it makes practical sense to compute the property owner’s actual damages rather than indulging in speculation on the measure of damages claimant could have contemplated at the time of taking” (44 NY2d at 508 [citations omitted and emphasis added]).

In adopting a retrospective measure of damages, we observed that “[i]t has been held by this court . . . that compensation need not be paid for the State’s taking of a temporary easement when there is no actual interference with the property owner’s use of his property” (44 NY2d at 507, citing Great Atl. & Pac. Tea Co. v State of New York, 22 NY2d 75, 87 [1968]). We found “insufficient reason for abandoning [the above] precedent” where a three-year-long temporary easement connected to highway improvements gave the State “the legal right to exercise some sort of dominion throughout the period of the easement,” but, in fact, the claimant’s “operation of the water treatment facility was rarely significantly interrupted” (44 NY2d at 507, 508). Similarly, in this case (and unlike the situation in Kadlec), the State proved the interval of actual obstruction; i.e., it is undisputed that highway access to claimant’s parcel was obstructed for only 7 to 10 days (and the State concedes 10 days for purposes of the appeal) during the 666 days the easement was in effect (from April 7, 1999 to February 1, 2001).

We added a caveat in Village of Highland Falls, however, commenting that

“[n]ot to be ignored . . . although not always measurable, is the damage to a property owner caused by uncertainty regarding the condemnor’s intentions. A temporary easement that leaves the property owner under constant threat that his use of the property may be curtailed or stopped is likely to affect business or other financial decisions even if use is never interrupted in fact. The threat imposed by the condemnor’s legal right to occupy may be almost as damaging as the actual occupation of the property. Damages caused by such uncertainty, difficult as they may be to measure, should generally be compensable” (44 NY2d at 509).

Claimant implicitly relies on this dictum. He contends that the temporary easement rendered his property unmarketable and undevelopable for its highest and best use as a single-tenant medical office building because it cut off highway access for an indefinite and unspecified period of time. This argument, however, ignores the easement’s wording, which reserved to claimant a concurrent right of access. More importantly, claimant failed to show that the temporary easement interfered with the parcel’s marketability or development in more than a conjectural sense. Although claimant’s appraiser opined that claimant likely could have obtained the zoning change needed to allow for commercial development, there is no evidence that he actually took any steps to do so. In addition, claimant never applied for a highway work permit to construct an entrance connecting the parcel to the Montauk Highway, which would likewise have been some evidence that he intended to market or develop the property; nor did he apply for the yard-width variance necessary for commercial development. Indeed, claimant’s appraiser’s testimony casts doubt on whether relief might be secured from both the zoning and yard-width requirements applicable to the lot, which—unlike the examples in her report— had frontage on only one rather than two highways. In short, the record is devoid of any concrete evidence that claimant actually attempted to sell or develop—or even contemplated selling or developing—the parcel, which was apparently only used occasionally as an auxiliary parking area for his dental office, and was entered from the adjacent parcel on the corner of Pease Lane and the Montauk Highway where his dental office was located. While prospective uncertainty might have a real effect on the sale value or development potential of vacant land, there is no evidence in this record from which a factfinder might conclude that claimant was, in fact, planning to sell or develop his property.

Accordingly, the order of the Appellate Division should be modified, with costs to the State, by remitting to the Court of Claims for further proceedings in accordance with this opinion and, as so modified, affirmed.

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

Order modified, etc.


text:
    [ 885 NE2d 191, 855 NYS2d 427]
    Byblos Bank Europe, S.A., Appellant, v Sekerbank Turk Anonym Syrketi, Respondent.
    Argued February 13, 2008;
    decided March 20, 2008

      POINTS OF COUNSEL

      DLA Piper US LLP, New York City (Andrew L. Deutsch and Krista Sirola of counsel), for appellant.
    I. The Appellate Division’s refusal to apply the last-in-time rule to the Belgian judgment was error. (Lynn v Lynn, 302 NY 193; Estin v Estin, 296 NY 308; Donald v J. J. White Lbr. Co., 68 F2d 441; Americana Fabrics, Inc. v L & L Textiles, Inc., 754 F2d 1524; Ambatielos v Foundation Co., 203 Misc 470; Chenu v Board of Trustees of Police Pension Fund of City of N.Y., 12 AD2d 422, 11 NY2d 688; Perkins v De Witt, 197 Misc 369, 279 App Div 903; Matter of Hunter, 4 NY3d 260; Joshua A. Becker & Assoc. v State of New York, 79 AD2d 599; Lazier v Westcott, 26 NY 146.) II. The last-in-time rule applies whether or not the forum of the second judgment grants comity to foreign judgments. (Hilton v Guyot, 159 US 113; Johnston v Compagnie Generale Transatlantique, 242 NY 381; Cowans v Ticonderoga Pulp & Paper Co., 219 App Div 120, 246 NY 603; Watts v Swiss Bank Corp., 27 NY2d 270; Fairchild, Arabatzis & Smith, Inc. v Prometeo [Produce & Metals] Co., Ltd., 470 F Supp 610; Island Territory of Curacao v Solitron Devices, Inc., 489 F2d 1313; Matter of John P. v Whalen, 54 NY2d 89; Lenchyshyn v Pelko Elec., 281 AD2d 42.)

      Paul, Hastings, Janofsky & Walker LLP, New York City (George L. Graff, Richard C. Schoenstein and Asa R. Danes of counsel), for respondent.
    I. The attachment was properly vacated. (Treinies v Sunshine Mining Co., 308 US 66; Adam v Saenger, 303 US 59; Aetna Life Ins. Co. v Tremblay, 223 US 185; Fairchild, Arabatzis & Smith, Inc. v Prometco [Produce & Metals] Co., Ltd., 470 F Supp 610; Lynn v Lynn, 302 NY 193; Johnston v Compagnie Generale Transatlantique, 242 NY 381; Alfadda v Fenn, 966 F Supp 1317, 159 F3d 41; Perkins v

      De Witt, 279 App Div 903; Ambatielos v Foundation Co., 203 Misc 470.) II. The New York courts lack jurisdiction over this dispute. (J. Zeevi & Sons v Grindlays Bank [Uganda], 37 NY2d 220; Simonson v International Bank, 14 NY2d 281; Robinson v Oceanic Steam Nav. Co., 112 NY 315; Cala v De Ridder Ltda, S.A., 17 AD2d 729; Gano-Moore Coal Min. Co. v Deegans Coal Co., 214 App Div 634; Fidan v Austral Am. Trading Corp., 8 Misc 2d 598; Rzeszotarski v Co-operative Assn. Kasa Polska, 139 Misc 400; Banco Ambrosiano v Artoc Bank & Trust, 62 NY2d 65; Keene Corp. v United States, 508 US 200; Mollan v Torrance, 9 Wheat [22 US] 537.)
   OPINION OF THE COURT

Pigott, J.

Plaintiff Byblos Bank Europe, S.A. is a Belgian bank and defendant Sekerbank Turk Anonym Syrketi is a Turkish bank. According to Byblos, in 1988, it issued two $2.5 million loans to Sekerbank. The loans were apparently obtained by a Sekerbank employee who issued a fraudulent loan guaranty to Byblos and ultimately embezzled the money. After initially paying some interest due on the first transfer, Sekerbank declined to make further payments.

Byblos commenced attachment proceedings and actions for breach of the loan agreements in Belgium, Turkey and Germany, countries where it believed Sekerbank held assets. In 1992, the Turkish court of first instance entered judgment dismissing the action on the merits, and that judgment was upheld on appeal in 1994. Thereafter, Sekerbank sought recognition of the Turkish judgment dismissing Byblos’s claims in the German and Belgian proceedings. In March 1996, the German court of first instance granted Sekerbank’s application for recognition of the Turkish judgment, and that judgment was affirmed on appeal the following year.

In August 1996, the Belgian court of first instance (the Tribunal de Commerce de Bruxelles) concluded that Byblos’s claims were barred by res judicata and dismissed the complaint. However, on Byblos’s appeal, in October 2003, the intermediate appellate court (the Cour d’Appel de Bruxelles) reversed the judgment of the Tribunal de Commerce de Bruxelles and declined to accord the Turkish judgment res judicata effect, relying on a now-repealed section of the Belgian Judicial Code which required merits review of foreign judgments before recognizing them. The Cour d’Appel concluded that the Turkish judgment was “affected by substantial error” and, upon its own review of the facts, ruled in Byblos’s favor on the merits and entered judgment awarding Byblos $5 million, plus interest. The Belgian high court (the Cour de Cassation de Belgique) denied Sekerbank’s petition for “cancellation” of the judgment in September 2005.

Byblos then sought to enforce the Belgian judgment in New York based on its belief that Sekerbank had assets in this state. In March 2006, Byblos moved ex parte for an order of attachment pursuant to CPLR 6201 (5) seeking to attach up to $12,140,518.32 of Sekerbank’s assets, the principal and accumulated interest of the Belgian judgment as of January 2006. Supreme Court issued the attachment order and directed Byblos to move to confirm the attachment within five days after the levy. Byblos also commenced an action for summary judgment in lieu of complaint pursuant to CPLR 3213 seeking recognition and enforcement of the judgment.

Byblos timely moved for an order confirming the attachment (see CPLR 6211 [b]), arguing that it was probable that it would succeed on the merits of its cause of action because the Belgian judgment was entitled to recognition under CPLR article 53 pursuant to the “last-in-time” rule, i.e., among conflicting sister state judgments, the last judgment rendered generally prevails. Sekerbank cross-moved to vacate the attachment (see CPLR 6223). It asserted, among other things, that Supreme Court should exercise its discretion under CPLR 5304 (b) (5) to deny recognition of the Belgian judgment because it conflicted with the prior Turkish judgment. Sekerbank also argued that the last-in-time rule need not be applied in the context of conflicting foreign country judgments.

Supreme Court denied Byblos’s motion to confirm the attachment and granted Sekerbank’s cross motion. After concluding that it was not required to recognize the Belgian judgment pursuant to the last-in-time rule, the court, in the exercise of its discretion under CPLR 5304 (b) (5), declined to recognize the judgment because it conflicted with the earlier Turkish judgment.

The Appellate Division modified to the extent of dismissing the CPLR 3213 complaint and otherwise affirmed. The court rejected Byblos’s primary contention that application of the last-in-time rule was required, concluding that the rule “lacks any justification where, as here, the foreign country court that rendered the last judgment [did] not give the party against whom enforcement is sought any kind of opportunity to argue the binding effect of the earlier judgment” (40 AD3d 497, 499 [1st Dept 2007]). The court further held that Sekerbank established its entitlement to nonenforcement of the Belgian judgment under CPLR 5304 (b) “by showing that the . . . judgment was issued in contravention of the principles of comity pursuant to a statute that has since been repealed and superseded by a statute directly to the contrary” (id.).

We granted Byblos leave to appeal and now affirm.

As we recently reiterated, “New York has traditionally been a generous forum in which to enforce judgments for money damages rendered by foreign courts” (Sung Hwan Co., Ltd. v Rite Aid Corp., 7 NY3d 78, 82 [2006], quoting CIBC Mellon Trust Co. v Mora Hotel Corp., 100 NY2d 215, 221 [2003]). New York courts have historically recognized foreign country judgments “under the doctrine of comity . . . [a]bsent some showing of fraud in the procurement of the foreign country judgment or that recognition of the judgment would do violence to some strong public policy of this State” (id. [internal quotation marks and citation omitted]). The doctrine of comity “refers to the spirit of cooperation in which a domestic tribunal approaches the resolution of cases touching the laws and interests of other sovereign states” (Societe Nationale Industrielle Aerospatiale v United States Dist. Court for Southern Dist. of Iowa, 482 US 522, 543 n 27 [1987]; see also Hilton v Guyot, 159 US 113, 163-164 [1895] [“ ‘Comity,’ in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens, or of other persons who are under the protection of its laws”]).

Our State’s recognition of foreign judgments is governed by CPLR article 53, the Uniform Foreign Country Money-Judgments Recognition Act, which was enacted in 1970 “to codify and clarify existing case law on the subject and, more importantly, to promote the efficient enforcement of New York judgments abroad by assuring foreign jurisdictions that their judgments would receive streamlined enforcement here” (CIBC Mellon Trust, 100 NY2d at 221). This statute “applies to any foreign country judgment which is final, conclusive and enforceable where rendered” (CPLR 5302). CPLR 5304 (a), however, makes clear that a foreign judgment is “not conclusive,” and thus not entitled to recognition, where the foreign country fails to provide impartial tribunals or due process or where the tribunal lacked personal jurisdiction over the defendant. CPLR 5304 (b) contains the discretionary grounds for refusing foreign court judgment recognition. As relevant here, CPLR 5304 (b) (5) states that “[a] foreign country judgment need not be recognized if . . . the judgment conflicts with another final and conclusive judgment.”

Here, the Belgian court judgment which Byblos seeks to enforce conflicts with an earlier Turkish judgment in Sekerbank’s favor, and a German judgment granting that judgment reciprocity. Under CPLR 5304 (b) (5), New York courts may in the exercise of discretion refuse to enforce a foreign judgment that “conflicts with another final and conclusive judgment.” It should be noted, however, that the statute does not specify which, if any, of the two conflicting foreign judgments is entitled to recognition. Rather, under CPLR 5304 (b) (5), the court may recognize the earlier judgment, the later judgment or neither of them. The last-in-time rule, applicable in resolving conflicting sister state judgments under the Full Faith and Credit Clause of the Constitution (see Treinies v Sunshine Mining Co., 308 US 66, 76-78 [1939]; Chenu v Board of Trustees of Police Pension Fund of City of N.Y., 12 AD2d 422 [1961], affd 11 NY2d 688 [1962], cert denied 370 US 910 [1962]), need not be mechanically applied when inconsistent foreign country judgments exist. Rigid application of the rule would conflict with the plain language of CPLR 5304 (b) (5) vesting New York courts with discretion to decide whether a foreign judgment that conflicts with another judgment is entitled to recognition.

Specifically, the last-in-time rule should not be applied where, as here, the last-in-time court departed from normal res judicata principles by permitting a party to relitigate the merits of an earlier judgment. In the present case, the Belgian court declined to accord recognition to an earlier Turkish judgment that had been previously recognized by a German court and in so doing departed from generally-accepted principles of res judicata and comity. Thus, Supreme Court properly exercised its discretion under CPLR 5304 (b) (5) to deny recognition of the Belgian judgment, which disregarded—and conflicted with—a previously rendered Turkish judgment.

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

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

Order affirmed, with costs.