author: Ciparick, J. Chief Judge Lippman (dissenting).

text:
    [979 NE2d 1162, 955 NYS2d 835]
    In the Matter of The New York County Lawyers’ Association et al., Appellants, and The New York Criminal Bar Association, Inc., et al., Intervenors-Appellants, v Michael R. Bloomberg, as Mayor of the City of New York, et al., Respondents, and The Legal Aid Society of New York, Intervenor-Respondent.
    Argued September 5, 2012;
    decided October 30, 2012

      POINTS OF COUNSEL

      Haynes and Boone, LLP, New York City (Jonathan D. Pressment and David M. Siegal of counsel), for appellants.
    I. The appeal warrants de novo review. (Jones v Bill, 10 NY3d 550; Weingarten v Board of Trustees of N.Y. City Teachers’ Retirement Sys., 98 NY2d 575; Matter of Guido v New York State Teachers’ Retirement Sys., 94 NY2d 64; Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428; Roberts v Tishman Speyer Props., L.P., 62 AD3d 71; Pultz v Economakis, 10 NY3d 542; State of New York v Patricia II., 6 NY3d 160; Di Marco v Hudson Val. Blood Servs., 147 AD2d 156; Meltzer v Koenigsberg, 302 NY 523; People v Mobil Oil Corp., 48 NY2d 192.) II. The Appellate Division, First Department’s order should be reversed. (People v Tempton, 192 AD2d 369; Klostermann v Cuomo, 61 NY2d 525; Matter of Legal Aid Socy. of Sullivan County v Scheinman, 53 NY2d 12; Matter of Brusco v Braun, 84 NY2d 674; Goehler v Cortland County, 70 AD3d 57; People v Ward, 199 AD2d 683; Levenson v Lippman, 4 NY3d 280; Matter of Met Council v Crosson, 84 NY2d 328; Matter of Parry v County of Onondaga, 51 AD3d 1385; Matter of Stream v Beisheim, 34 AD2d 329.)

      Satterlee Stephens Burke & Burke LLP, New York City
      (Zoë E. Jasper and Alun W. Griffiths of counsel), for intervenorsappellants.
    I. The appeal herein warrants de novo review. (Weingarten v Board of Trustees of N.Y. City Teachers’ Retirement Sys., 98 NY2d 575; Matter of Guido v New York State Teachers’ Retirement Sys., 94 NY2d 64; Jones v Bill, 10 NY3d 550.) II. The City of New York’s proposed plan is unlawful under County Law § 722. (Goehler v Cortland County, 70 AD3d 57; Matter of Branford House v Michetti, 81 NY2d 681; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428; Frank v Meadowlakes Dev. Corp., 6 NY3d 687; United States v Hudson, 7 Cranch [11 US] 32; Department of Welfare of City of N.Y. v Siebel, 6 NY2d 536; Matter of McNerney v City of Geneva, 290 NY 505; People v Cristin, 30 Misc 3d 383; People v McLaughlin, 174 Misc 2d 181.) III. The City of New York’s failure to obtain bar association approval invalidates the City’s proposed plan.

      Michael A. Cardozo, Corporation Counsel, New York City (Julian L. Kalkstein, Larry A. Sonnenshein and Thaddeus Hackworth of counsel), for respondents.
    I. Petitioners’ challenge to 43 RCNY chapter 13 is barred by the statute of limitations. (New York City Health & Hosps. Corp. v McBarnette, 84 NY2d 194; Matter of City of New York [Grand Lafayette Props. LLC], 6 NY3d 540; Matter of Best Payphones, Inc. v Department of Info. Tech. & Telecom, of City of N.Y., 5 NY3d 30; Ousmane v City of New York, 7 Misc 3d 1016[A], 2005 NY Slip Op 50634[U]; Association of Messenger Servs. v City of New York, 136 Misc 2d 869; Matter of Edmead v McGuire, 67 NY2d 714; Matter of Queensborough Community Coll. of City Univ. of N.Y. v State Human Rights Appeal Bd., 41 NY2d 926; Matter of Allstate Ins. Co. v Stewart, 36 AD2d 811, 29 NY2d 925; Matter of GFI-Genfare, Div. of Gen. Signal Tech. Corp. v New York City Tr. Auth., 184 AD2d 334.) II. County Law § 722 authorizes the City of New York to promulgate a plan for the provision of counsel for indigent defendants that includes utilizing institutional providers under section 722 (2) for assignment of counsel in conflict cases. (Carney v Philippone, 1 NY3d 333; Frank v Meadowlakes Dev. Corp., 6 NY3d 687; People ex rel. Huntington v Crennan, 141 NY 239; Goehler v Cortland County, 70 AD3d 57; Gideon v Wainwright, 372 US 335; People v Finnegan, 85 NY2d 53, 516 US 919; Zappone v Home Ins. Co., 55 NY2d 131.)

      Davis Polk & Wardwell LLP, New York City (Daniel F. Kolb, Lara M. Samet and Nicholas P. Stabile of counsel), and Steven Banks, Legal Aid Society, for intervenor-respondent.
    I. The Appellate Division correctly ruled that the City of New York’s actions were consistent with section 722 of the County Law and that appellants may not interfere with the City’s discretion to assign cases. (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428; Matter of Comptroller of City of N.Y. v Mayor of City of N.Y., 7 NY3d 256; Hurrell-Harring v State of New York, 15 NY3d 8; Matter of Astoria Gas Turbine Power, LLC v Tax Commn. of City of N.Y., 7 NY3d 451; Riley v County of Broome, 95 NY2d 455; Riverton Assoc. v Harvey, 1 Misc 3d 822; People v Mills, 11 NY3d 527; Matter of Niagara Mohawk Power Corp. v Public Serv. Commn. of State of N.Y., 69 NY2d 365; People v Eastco Bldg. Servs., 23 Misc 3d 864.) II. The City of New York’s actions did not extinguish the 1965 Bar Plan and its criminal defense panels, which remain as before. III. Conflict cases may nevertheless be assigned to the Legal Aid Society irrespective of whether or not this Court concludes that the City of New York’s actions with respect to the bar plan were appropriate. (People ex rel. Alpha Portland Cement Co. v Knapp, 230 NY 48; Matter of New York State Superfund Coalition v New York State Dept. of Envtl. Conservation, 75 NY2d 88.)
   OPINION OF THE COURT

Ciparick, J.

This appeal presents the question of whether the City of New York’s 2010 plan for indigent defense, permitting representation by both institutional providers and private attorneys in cases in which a conflict of interest precludes representation by the initial provider, constitutes a valid combination plan within the meaning of article 18-B of the County Law (County Law § 722). Petitioners, various county bar associations, challenged the proposed plan and its implementing regulations (see 43 RCNY 13-01 et seq.) as violative of County Law § 722 and Municipal Home Rule Law § 11 (1) (e). We conclude that the City may assign conflict cases to institutional providers, that its ability to do so is not contingent on the consent of the county bar associations and that the City’s proposed indigent defense plan does not run afoul of the County Law or Municipal Home Rule Law.

L

In 1965, the legislature enacted article 18-B of the County Law (County Law § 722) in response to the Supreme Court’s landmark decision in Gideon v Wainwright (372 US 335 [1963]), which held that the fundamental right to counsel in criminal cases creates an attendant obligation of the state to provide indigent defendants with representation (see id. at 344-345). Accordingly, County Law § 722 mandates that “the governing body of the city in which a county is wholly contained shall place in operation ... a plan for providing counsel to persons charged with a crime . . . who are financially unable to obtain counsel.” Pursuant to section 722, New York City may adopt any one of the following plans for representation:

“1. Representation by a public defender appointed pursuant to county law article eighteen-A.[]
“2. . . . representation by counsel furnished by a private legal aid bureau or society . . .
“3. (a) Representation by counsel furnished pursuant to either or both of the following: a plan of a bar association in each county or the city in which a county is wholly contained whereby: (i) the services of private counsel are rotated and coordinated by an administrator, and such administrator may be compensated for such service; or (ii) such representation is provided by an office of conflict defender . . . []
“4. Representation according to a plan containing a combination of any of the foregoing.”

Subdivision (4) further provides that when the City has not enacted a plan conforming with subdivisions (3) or (4) and “the judge ... is satisfied that a conflict of interest prevents the assignment of counsel pursuant to the plan in operation . . . the judge . . . may assign any attorney in such . . . city.”

Also in 1965, the Association of the Bar of the City of New York (not a party to this case) and petitioners proposed a joint plan for indigent defense (the 1965 Bar Plan) that, consistent with section 722 (4), “combine[d] representation by a private legal aid society [pursuant to subdivision (2)] and by private attorneys [pursuant to subdivision (3)].” Under the 1965 Bar Plan, the county bar associations would submit a list of names of qualified attorneys to administrators, appointed by the Appellate Divisions of the First and Second Judicial Departments and paid by the City, who would prepare and coordinate panels of attorneys pursuant to article 18-B. The 1965 Bar Plan designated the Legal Aid Society as the primary provider of indigent defense services. It further provided that where the “court deems the assignment of other counsel to be required in the interest of justice because of ... a conflict of interest . . . the court shall appoint counsel” from an 18-B panel. Finally, the 1965 Bar Plan granted the First and Second Departments authority to promulgate rules with respect to the plan’s operation.

In November 1965, then Mayor Robert F. Wagner, Jr., issued New York City Executive Order No. 178 establishing a combined option plan as proposed by the bar associations for indigent defense pursuant to County Law § 722 (4). In conformity with the 1965 Bar Plan, Executive Order No. 178 designated the Legal Aid Society as the primary provider of counsel to indigent defendants and stated that “[i]n those cases where by reason of a conflict of interest . . . the Legal Aid Society declines to represent any such defendant, such defendant shall be represented by counsel furnished pursuant to the [Bar Plan].” It should be noted that at that time the Legal Aid Society was the only institutional provider of legal services in New York City.

While in subsequent decades the provision of indigent defense functioned in accordance with the plan established by Executive Order No. 178, it was not wholly without practical alterations. In 1980 and 1991, the First and Second Judicial Departments adopted new rules, which the county bar associations approved, whereby committees designated by the Appellate Division would perform the function of screening attorneys for the 18-B panels (see 22 NYCRR 612.0 et seq.; 22 NYCRR 678.1 et seq.). Beginning in 1996, the City began contracting with other institutional providers in addition to the Legal Aid Society. Presently, institutional providers furnishing indigent defense services also include Staten Island Legal Services, the Bronx Defenders, Brooklyn Defender Services, New York County Defender Services, Neighborhood Defender Service of Harlem and Queens Law Associates.

In June 2008, recognizing that the Legal Aid Society was no longer the sole institutional provider of primary defense counsel, Mayor Michael Bloomberg issued New York City Executive Order No. 118 of 2008, which repealed New York City Executive Order No. 178 of 1965. Executive Order No. 118 provided that the Office of the Criminal Justice Coordinator (CJC) “shall select Providers through a competitive procurement process,” to serve as primary counsel at both the trial and appellate levels. Conflict representation would continue to be provided exclusively by 18-B panel attorneys.

On January 6, 2010, the City adopted chapter 13 of title 43 of the Rules of the City of New York (43 RCNY 13-01 et seq.) entitled “Indigent Defense Plan for the City of New York.” Of great significance to this appeal, chapter 13 addressed the assignment of conflict counsel, providing:

“In any case where, due to conflict of interest or other appropriate reason, Providers decline or are unable to represent an indigent person at the trial or on appeal in a criminal matter, counsel shall be furnished by attorneys assigned by the ACP [Assigned Counsel Plan] from the appropriate Criminal Defense Panel of the Appellate Division, First or Second Judicial Department, or by alternate providers[ ] selected by the CJC through the City’s procurement process” (43 RCNY 13-03 [emphasis added]).

Thus, chapter 13 permits the assignment of conflict cases to institutional providers in addition to 18-B panel attorneys. Chapter 13 also created the Office of the Assigned Counsel Plan (OACP), which is “overseen by two Administrators in consultation with the Presiding Justices of the First and Second Judicial Departments” and is “responsible for management of the City’s Criminal Defense Panels” (43 RCNY 13-01).

In February 2010, as per the procedures established in chapter 13, the City issued a request for proposals (the RFP) inviting institutional bids for the provision of indigent criminal defense services and for the assignment of conflict cases. The RFP stated that “the City is interested in providing representation in conflict cases and anticipates issuing awards to vendors who propose to provide representation in conflict cases.”

The City subsequently issued two addendums to the RFP A February 8, 2010 addendum clarified that “[t]he City has not decided and the RFP does not state that a definite number of providers will be selected for each county.” The second addendum was issued March 2, 2010, the same day that Mayor Bloomberg issued New York City Executive Order No. 132 of 2010, setting forth the City’s new indigent defense plan. Executive Order No. 132 repealed New York City Executive Order No. 178 of 1965 again, but provided that the 18-B panels created by the latter “shall continue to exist and shall be administered in accordance with the rules of the Appellate Division, First and Second Judicial Departments.” The second addendum presented a contradiction, however, stating that the City’s new indigent defense plan conformed with County Law § 722 (2), the “private legal aid bureau or society” option, and that the prior section 722 (3) option, by which representation was furnished pursuant to “a plan of a bar association,” specifically, the 1965 Bar Plan, was “no longer in effect.”

Petitioners initiated this hybrid CPLR article 78 proceeding and declaratory judgment action in June 2010 challenging the legality of Executive Order No. 132, 43 RCNY chapter 13, the RFP and its addenda. Petitioners sought, among other things, a judgment declaring that chapter 13, Executive Order No. 132 and the amended RFP violate article 18-B and Municipal Home Rule Law § 11 (1) (e) and declaring any contracts entered into pursuant to the order and RFP invalid. As relevant here, petitioners contended that the City’s proposed indigent defense plan was not a combination plan as set forth in County Law § 722 (4) because the county bar associations had not approved of the selective retention and abandonment of portions of the 1965 Bar Plan and, therefore, the new plan did not utilize a “plan of a bar association” pursuant to section 722 (3). Petitioners also moved to preliminarily enjoin respondents, the City of New York, Mayor Bloomberg and the CJC (collectively, the City), from implementing Executive Order No. 132 and the contract procurement process prescribed in the RFP

Subsequently, on July 13, 2010, Mayor Bloomberg issued New York City Executive Order No. 136 of 2010, which .repealed the preceding Executive Orders,

“except that Criminal Defense Panels created under the authority of Executive Order [No.] 178 of 1965 and pursuant to the plan submitted by bar associations in accordance with subdivision 3 of section 722 of the County Law shall continue to exist and shall be administered in accordance with the rules of the Appellate Division, First and Second Judicial Departments.”

In response to Executive Order No. 136, petitioners amended their pleading, asserting that the most recent order “attempts to selectively preserve portions of the 1965 Bar Plan while rejecting other portions” without the approval of the county bar associations in violation of County Law § 722 (3).

The City answered, asserting that its indigent defense plan is a combination plan pursuant to County Law § 722 (4), that the second addendum indicating otherwise was a misstatement, that “the criminal defense panels of private attorneys continue to be administered in the same manner [as prescribed by the 1965 Bar Plan] and [that] the role of the bar associations has not been changed or modified by the City in any way.” The City cross-moved for summary judgment.

Supreme Court granted the petition to an extent not relevant to this appeal, otherwise dismissed the petition with prejudice and granted the City’s motion for summary judgment (see Matter of New York County Lawyers’ Assn. v Bloomberg, 30 Misc 3d 921 [Sup Ct, NY County 2011]). A majority of Appellate Division justices affirmed (Matter of New York County Lawyers’ Assn. v Bloomberg, 95 AD3d 92 [1st Dept 2012]), finding, as did Supreme Court, that section 722 (2) authorized the City to assign conflict cases to institutional providers without petitioners’ consent, that section 722 (3) as amended did not reserve exclusive authority over the provision of conflict counsel to the county bar associations and that the City’s indigent defense plan “is a lawful ‘combination’ plan under County Law § 722 (4)” (id. at 95). The majority determined that any differences between the bar plan component of the City’s proposed combination plan and the 1965 Bar Plan were immaterial (see id. at 102). The dissenting justices would have granted the petition, finding that “[t]he City’s Bar Plan is markedly different from the version devised and approved by the County Bars in 1965,” and that regardless of how the court “characterize^] the changes [between the plans], the ineluctable reality is that a ‘Bar Plan’ that has not been adopted, but instead has been rejected by the bar associations, is not ‘a plan of a bar association’ as contemplated by County Law § 722 (3)” {id. at 111, 114).

Petitioners appeal pursuant to CPLR 5601 (a) and we now affirm.

IL

“It is fundamental that a court, in interpreting a statute, should attempt to effectuate the intent of the Legislature” (Patrolmen’s Benevolent Assn. of City of N.Y. v City of New York, 41 NY2d 205, 208 [1976]; see also Matter of M.B., 6 NY3d 437, 447 [2006]). To that end, in our present interpretation of County Law § 722, we must look first to the statutory text, which is “the clearest indicator of legislative intent” (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998]). We are also guided in our analysis by the familiar principle “that a statute . . . must be construed as a whole and that its various sections must be considered together and with reference to each other” (People v Mobil Oil Corp., 48 NY2d 192, 199 [1979]).

Petitioners contend that County Law § 722 neither contemplates nor allows the City’s assignment of conflict cases to institutional providers. According to petitioners, because section 722 addresses the provision of conflict counsel in subdivisions (3) and (4) only, conflict counsel may only be appointed by the bar associations or the judiciary pursuant to those provisions. Specifically, petitioners rely on the 2010 amendment to section 722 (3), which allowed for representation pursuant to a bar plan whereby an “office of conflict defender” would provide conflict representation {see County Law § 722 [3] [a] [ii]). Arguing that the phrase “office of conflict defender” must be read broadly to encompass institutional providers, petitioners assert that the county bar associations alone possess the authority to appoint institutional providers in conflict cases. By necessity, then, the services of institutional providers under section 722 (2), which omits reference to conflicts of interest, are limited to primary representation. We do not agree with petitioners’ interpretation and conclude that the statute permits the City to assign conflict cases to institutional providers of indigent defense services.

Section 722 compels the City to “place in operation ... a plan for providing counsel to persons charged with a crime . . . who are financially unable to obtain counsel.” As the United States Supreme Court has stated, “[w]here a constitutional right to counsel exists . . . there is a correlative right to representation that is free from conflicts of interest” (Wood v Georgia, 450 US 261, 271 [1981]). Thus, it follows that the City’s discretion to devise a plan for the provision of indigent criminal defense must necessarily extend to conflict representation. We cannot interpret “a plan for providing counsel” as pertaining only to primary counsel when no such limitation is evident from the general language chosen by the legislature (see Majewski, 91 NY2d at 583; Matter of Malta Town Ctr. I, Ltd. v Town of Malta Bd. of Assessment Review, 3 NY3d 563, 568 [2004]). Nor can we construe section 722 (2), allowing representation by a “private legal aid bureau or society,” as being similarly limited. Rather than circumscribe the City’s ability to respond to conflicts of interest, we think it more likely, when construing the statute as a whole, that the legislature intended to permit the City to create a comprehensive indigent defense plan that accounts for such a frequently occurring circumstance. That authority includes a plan in which conflict cases are assigned to institutional providers as well as 18-B lawyers.

The 2010 amendment to section 722 (3) does not alter our analysis; it simply gives municipalities yet another option for the handling of conflict cases—representation by an office of conflict defender pursuant to a bar plan (see County Law § 722 [3] [a] [ii]).

Our reading is also fully consistent with County Law § 722 (4) . That section allows for representation of indigent defendants “according to a plan containing a combination of’ section 722 (1), (2) or (3). It also allows the court to assign counsel where the City has not “placed in operation a plan conforming to” subdivision (3) or a combination plan under subdivision (4), and the court “is satisfied that a conflict of interest prevents the assignment of counsel pursuant to the plan in operation.” In accordance with our analysis, nothing in County Law § 722 would prevent the City from implementing a plan whereby both primary and conflict counsel are furnished by various institutional providers pursuant to section 722 (2). In that case, because the plan in operation would most often provide a mechanism for resolving a conflict of interest, the occurrence of a conflict would typically not trigger the court’s discretionary authority to appoint counsel unless, of course, a third conflict exists. Thus, petitioners’ assertion that County Law § 722 reserves authority over the assignment of conflict representation exclusively to the county bar associations or, alternatively, to the judiciary is inconsistent with the statutory scheme.

Having concluded that the City may appoint institutional providers to conflict cases independently of the bar associations and the court, we turn to the question of whether the City’s proposed indigent defense plan is a valid combination plan adopted pursuant to County Law § 722 (4). Petitioners assert that the purported “bar plan” component of the City’s proposed plan is not actually “a plan of a bar association” under section 722 (3) as the bar associations have not ratified, and in fact object to, the City’s alterations to the 1965 Bar Plan. Of those alterations, petitioners point primarily to the departure from that portion of the 1965 Bar Plan designating conflict representation exclusively to 18-B panel attorneys. If we are to effectuate the legislative intent underlying County Law § 722, however, we cannot invalidate the City’s proposed plan on that basis.

To condition the City’s authority to implement a combination plan incorporating a subdivision (3) component either on the adoption of the 1965 Bar Plan in its entirety or on the bar associations’ consent to abandon that portion of the plan reserving conflict representation exclusively to 18-B attorneys would be to allow the bar associations to unilaterally block the City from adopting a plan for conflict representation that includes institutional providers. In effect, the bar associations would control the City’s ability to fulfill its statutory mandate to formulate a comprehensive plan for indigent defense. We do not believe the legislature intended such a result. Rather, County Law § 722 appears to contemplate precisely what occurred here—that the City, in response to needs actual or perceived, could implement a combination plan apportioning conflict representation among both institutional providers and private counsel retained pursuant to the selection method created by the 1965 Bar Plan, the 18-B panels.

Petitioners also point to other changes, which they claim run counter to the 1965 Bar Plan and violate County Law § 722. First, petitioners assert that the City’s proposed plan impermissibly transfers authority to determine whether a conflict of interest exists from the judiciary to institutional providers. We disagree. The 1965 Bar Plan stipulated that the court would appoint an 18-B attorney where it “deems the assignment of other counsel to be required in the interest of justice because of. . . a conflict of interest.” However, nothing in the 1965 Bar Plan states that the court, rather than the institutional provider, had the exclusive authority to determine that a conflict of interest existed in the first instance. Concomitantly, New York City Executive Order No. 178 of 1965 provided that “[i]n those cases where by reason of a conflict of interest or other appropriate reason . . . the Legal Aid Society declines to represent any such defendant, such defendant shall be represented by counsel furnished pursuant to the [1965 Bar Plan]” (emphasis added). Moreover, in practice it is typically counsel who must determine whether a conflict exists as a matter of ethical obligation (see Rules of Professional Conduct [22 NYCRR 1200.0] rules 1.7-1.10). Thus, what petitioners contend is a major change is, in effect, no change at all.

Next, they assert that in creating the OACP, the City’s proposed plan usurped management authority over the 18-B panels from judicially appointed administrators and placed it under executive control. OACP, however, is “overseen by two Administrators in consultation with the Presiding Justices of the First and Second Judicial Departments” (43 RCNY 13-01) and, as the majority below found, “takes no authority away from the [county bar associations]” (Matter of New York County Lawyers’ Assn., 95 AD3d at 102). Petitioners also assert that the City’s proposed plan impermissibly replaces the county bar associations’ role over the selection of 18-B panel attorneys with “screening and advisory committees” designated by the First and Second Judicial Departments. While the 1965 Bar Plan did not provide for the Appellate Division’s involvement in the screening of 18-B attorneys, it is undisputed that in 1980 and 1991, the county bar associations approved new sections of the Appellate Division rules that created the very screening committees for 18-B panels to which they now object (see 22 NYCRR 612.0 et seq.; 22 NYCRR 678.1 et seq.). Thus, the City’s proposed plan merely codiñes a change that the bar associations ratified and that has been in practice for decades.

Finally, we reject the argument that the City’s 2010 plan violates Municipal Home Rule Law § 11 (1) (e), which prohibits the adoption of a local law that supercedes a state statute if such law affects the courts. No such situation exists here.

We thus conclude and agree with the majority below that the City’s 2010 plan for indigent defense constitutes a valid combination plan under County Law § 722 (4). Construed as a whole, section 722 affords the City the flexibility to appoint institutional providers to represent indigent defendants where a conflict of interest precludes representation by the primary provider. As such, the City, in the exercise of its discretion, was not required to adopt that portion of the 1965 Bar Plan reserving conflict cases exclusively to 18-B panel attorneys in order to implement a combination plan incorporating “a plan of a bar association” pursuant to County Law § 722 (3). Importantly, the 18-B panels created by the 1965 Bar Plan remain in place and are expressly preserved by the executive order governing the City’s 2010 plan. The City’s plan thus allows for the defense of indigent criminal defendants by the Legal Aid Society, other institutional providers and the private bar, as a combination plan that serves the needs of the clients but also recognizes fiscal realities to be borne by the City.

Accordingly, the order of the Appellate Division should be affirmed, without costs.

Chief Judge Lippman (dissenting).

While I do not disagree with that part of the majority’s analysis concluding that a County Law § 722 (2) indigent defense plan may draw upon institutional providers for both primary and conflict representation, I do not view that conclusion as necessary or even helpful to a correct analysis of whether the indigent defense plan now before us comports with the County Law.

As the majority has so meticulously detailed, the City, after purporting to jettison the combined (County Law § 722 [4]) plan that had been in place since 1965 and replace it simply with a section 722 (2) plan in which panel attorneys would play no part, has now clarified that that was not its intention at all and that its new plan is, like the plan it is to supplant, actually a County Law § 722 (4) combination plan, in accordance with which legal services would be provided by private practitioners pursuant to a section 722 (3) bar association plan, and by private institutional providers pursuant to section 722 (2). The salient and transformative difference between the new and old plans is that under the new plan institutional providers may be called upon to provide either primary or conflict representation, whereas under the old plan, both as formulated by the bar associations and implemented by the City, representation in conflict cases was to be handled exclusively by panel attorneys. The new plan reduces, and indeed will likely marginalize the participation of panel attorneys, dramatically shifting from them to institutional providers retained through competitive bidding, the conflict defense function.

The legal issue immediately posed by this shift is not whether it is within the City’s power to accomplish, but whether it is permissibly accomplished by means of the particular section 722 (4) combination plan the City has evidently settled upon. That plan, like its forerunner, purports to rely in essential part upon “Representation by counsel furnished pursuant to ... a plan of a bar association” (County Law § 722 [3] [a]). Indeed, the new plan purports to rely on the very same bar association plan used in connection with the now repeatedly repealed 1965 plan (see majority op at 718-719). However, no bar association has agreed to the use of the 1965 plan in the dramatically different context that would be created by the expanded subdivision (2) component of the City’s new plan.

As the majority acknowledges, and as is in any case clear from the record, it was an express element of the 1965 bar association plan and of the consequent City plan adopted in the same year that panel attorneys would be assigned all of the matters in which the then sole private institutional provider, the Legal Aid Society, was conflicted. Stripped of that critical allocation of responsibility, the bar association plan is that in name only; it is, in its starkly pared aspect, simply a plan of the City attributable to a bar association only by highhanded assertion. The 1965 bar association plan was not designed like a bit of LEGO for use in a range of interchangeable settings at the City’s option. Rather, it contemplated a particular relation between institutional and panel providers with specific, well-defined functions assigned each. Plainly, that relation has been fundamentally altered in the City’s new plan.

Inasmuch, then, as the City’s presently proposed combination plan lacks an essential combinative element, namely “a plan of a bar association,” it is not a valid County Law § 722 (4) plan and that is where the analysis logically must find its point of repose. The majority, however, would avoid this conclusion, not because it is sensible to suppose that the bare retention of the panels is or may be deemed “pursuant to . . . a plan of a bar association,” but because it finds unacceptable the notion that bar associations may, by withholding consent to a City plan for the provision of panel attorneys, “unilaterally block the City from adopting a plan for conflict representation that includes institutional providers” (majority op at 723). But, of course, if one accepts the majority’s conclusion that conflict representation may be provided by institutional providers under a simple section 722 (2) plan, it cannot be that the bar associations have the veto power the majority ascribes to them.

While, under the statute, the absence of “a plan of a bar association” operates to prevent the City from devising a subdivision (3) plan or a subdivision (4) plan depending on a subdivision (3) component, these limitations manifestly do not prevent the City from fulfilling its statutory mandate to formulate a comprehensive plan for indigent defense. And, given the majority’s understanding of what a subdivision (2) plan may include, it is clear that the City may adopt a plan that will meet its dominant motivating objective of shifting conflict representation to institutional providers. Indeed, the present plan’s subdivision (2) component, standing alone, would appear independently to be statutorily compliant as a subdivision (2) plan.

Although the City may prefer a combination plan involving the retention of panel attorneys so as to assure that there will be no situation in which a court will appoint conflict counsel pursuant to section 722 (4), that is not a preference that the statute may be read to accommodate, unless there is in fact a bona fide subdivision (3) bar association plan. Certainly, the existence of the preference does not justify disregarding the statutory condition of its gratification.

The City doubtless has considerable discretion to fashion an indigent defense plan, but like any other locality charged with the obligation of devising such a plan, its discretion is limited by County Law § 722; it does not have laissez-faire to construct a plan except from the elements the statute makes available (see e.g. Goehler v Cortland County, 70 AD3d 57 [3d Dept 2009] [declaring the County’s creation of an office of conflict attorney invalid because the newly created office did not correspond to any statutorily sanctioned option]). Here, because the City’s combination plan relies upon an element that does not exist, it does not conform to the statute and is violative of Municipal Home Rule Law § 11 (1) (e). This does not mean that the City should be indefinitely stymied in implementing an indigent defense plan, only that it cannot while complying with the statute implement the present plan with its subdivision (3) piece. What would remain after dispensing with that defective element would, I believe, be a valid subdivision (2) plan on the basis of which the City could proceed. This would, as noted, entail judicial appointment of counsel in conflict situations where institutional conflict defenders were unavailable, but that is what the statute requires where there is no plan of a bar association for the provision of private counsel.

The City may have very sound policy reasons for the change it proposes, but as it goes about altering, perhaps irretrievably, the network of indigent defense service providers that has been in place for some 47 years, it would seem more than ordinarily important to insist upon compliance with the limitations contained in County Law § 722, among them that bar association consent be obtained as a condition of a City plan purporting to rely on “a plan of a bar association.” This is not simply a question of logic and manners. The purpose of the statute is to assure that there will be quality representation for indigent defendants pursuant to the mandate of Gideon v Wainwright (372 US 335 [1963]), and toward that end the legislature has, quite reasonably, required localities to act cooperatively with the bar associations whose members are to be drawn upon for their professional services. If the panels are to be retained and usefully administered as a representational resource, it would be prudent and natural that it would be according to a sustaining plan devised not only by the City but also in part by legal professionals concerned first and foremost with the delivery of quality representation. That is, in any event, what the statute requires and what municipal discretion therefore is not appropriately invoked to excuse.

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

Order affirmed, wdthout costs.

      . As the City does not have a public defender, this section does not currently factor into our analysis.

      . The legislature amended County Law § 722 (3) on June 22, 2010 to include its current language (see L 2010, ch 56, § 1, part E, § 3). Previously, it read, in relevant part, “counsel furnished pursuant to a plan of a bar association . . . whereby the services of private counsel are rotated and coordinated by an administrator” (see L 1965, ch 878, § 1).

      . Section 13-01 defines “[p]rovider[s]” as “private institutional legal services organizations] selected by CJC in accordance with section 13-02,” which addresses the procurement of institutional providers.

      . Petitioners include the New York County Lawyers’ Association, the Bronx County Bar Association, the Brooklyn Bar Association, the Queens County Bar Association and the Richmond County Bar Association. The New York Criminal Bar Association, Inc. and Anastasios Sarikas, a member of the Assigned Counsel Plan of the City of New York, were added as intervenorspetitioners.

      . The Legal Aid Society moved without opposition to intervene as intervernor-respondent and joined in the City’s motion.

      . While it is true that there have since 1996 been institutional defenders other than Legal Aid integrated as service providers within the City plan, those providers merely enlarged the pool of primary defenders; they were not used to supplant the panel attorneys from their agreed upon role as conflict defenders under the original City combination plan.

      . The statute provides in relevant part:
      “when the county or the city in which a county is wholly contained has not placed in operation a plan conforming to that prescribed in this subdivision or subdivision three of this section and the judge, justice or magistrate is satisfied that a conflict of interest prevents the assignment of counsel pursuant to the plan in operation . . . the judge, justice or magistrate may assign any attorney in such county or city and, in such event, such attorney shall receive compensation and reimbursement from such county or city which shall be at the same rate as is prescribed in section seven hundred twenty-two-b of this article” (County Law § 722 [4]).

      . Section 722 (3) has since been amended to permit conflict defense services to be provided by an office of conflict defender pursuant to a plan of a bar association (L 2010, ch 56, § 1, part E, § 3).


source: Caselaw Access Project

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

license: Public Domain

text:
    [979 NE2d 1181, 955 NYS2d 854]
    American Building Supply Corp., Appellant, v Petrocelli Group, Inc., Respondent, et al., Defendant.
    Argued October 10, 2012;
    decided November 19, 2012

      POINTS OF COUNSEL

      Zisholtz & Zisholtz, LLP, Mineola (Stuart S. Zisholtz of counsel), for appellant.
    I. Petrocelli Group, Inc. should not be relieved from liability for its failure to procure the requested insurance coverage because of American Building Supply Corp.’s failure to read and understand the policy. (Murphy v Kuhn, 90 NY2d 266; Hoffend & Sons, Inc. v Rose & Kiernan, Inc., 7 NY3d 152; Bruckmann, Rosser, Sherrill & Co., L.P. v Marsh USA, Inc., 65 AD3d 865; Cosmos, Queens Ltd. v Matthias Saechang Im Agency, 74 AD3d 682; Baseball Off. of Commr. v Marsh & McLennan, 295 AD2d 73; Rotanelli v Madden, 172 AD2d 815, 79 NY2d 754; Hersch v DeWitt Stern Group, Inc., 43 AD3d 644; Israelson v Williams, 166 App Div 25, 215 NY 684; Bell v O’Leary, 744 F2d 1370; Butler v Scott, 417 F2d 471.) II. Petrocelli Group, Inc. did not fulfill its common-law duty to American Building Supply Corp. to either procure the requested coverage within a reasonable amount of time or to notify American Building Supply Corp. of its inability to do so. (Chase Scientific Research v NIA Group, 96 NY2d 20; Murphy v Kuhn, 90 NY2d 266; Brown v Poritzky, 30 NY2d 289; L.C.E.L. Collectibles v American Ins. Co., 228 AD2d 196; AJ Contr. Co. v Trident Mgrs., 234 AD2d 195; American Ref-Fuel Co. of Hempstead v Resource Recycling, 281 AD2d 574; Tucci v Hartford Cas. Ins. Co., 167 AD2d 387; Republic Long Is., Inc. v Andrew J. Vanacore, Inc., 29 AD3d 665; Bruckmann, Rosser, Sherrill & Co., L.P. v Marsh USA, Inc., 65 AD3d 865; Cosmos, Queens Ltd. v Matthias Saechang Im Agency, 74 AD3d 682.) III. Both the Appellate Division and the trial court correctly found that issues of fact existed with respect to the insurance coverage that American Building Supply Corp. instructed Petrocelli Group, Inc. to obtain. (Reilly v Progressive Ins. Co., 288 AD2d 365; Kyes v Northbrook Prop. & Cas. Ins. Co., 278 AD2d 736; AJ Contr. Co. v Trident Mgrs., 234 AD2d 195; Bedessee Imports, Inc. v Cook, Hall & Hyde, Inc., 45 AD3d 792; Mickey’s Rides-N-More, Inc. v Anthony Viscuso Brokerage, Inc., 17 AD3d 328; Structural Bldg. Prods. Corp. v Business Ins. Agency, 281 AD2d 617; Wied v New York Cent. Mut. Fire Ins. Co., 208 AD2d 1132; Barco Auto Leasing Corp. v Montano, 215 AD2d 617.) IV Summary judgment should not have been granted. (De Cristofaro v Joann Enters., 250 AD2d 990; Johnson v Goldberger, 286 AD2d 604.)

      Keidel, Weldon & Cunningham, LLP, White Plains (Stephen C. Cunningham and Debra M. Krebs of counsel), for respondent.
    I. The evidence demonstrates that Petrocelli Group, Inc. procured the requested coverage. (Murphy v Kuhn, 90 NY2d 266; M & E Mfg. Co. v Frank H. Reis, Inc., 258 AD2d 9; Block v Magee, 146 AD2d 730; Matter of Wang, 5 AD3d 788; Neil Plumbing & Heating Constr. Corp. v Providence Washington Ins. Co., 125 AD2d 295; Hoffend & Sons, Inc. v Rose & Kiernan, Inc., 7 NY3d 152.) II. Plaintiffs claims are barred by plaintiffs receipt of the subject insurance policy without complaint. (Maple House, Inc. v Alfred F. Cypes & Co., Inc., 80 AD3d 672; Motor Parkway Enters., Inc. v Loyd Keith Friedlander Partners, Ltd., 89 AD3d 1069; Portnoy v Allstate Indem. Co., 82 AD3d 1196; Stilianudakis v Tower Ins. Co. of N.Y., 68 AD3d 973; Catskill Mtn. Mech., LLC v Marshall & Sterling Upstate, Inc., 51 AD3d 1182; Gui’s Lbr. & Home Ctr., Inc. v Pennsylvania Lumbermens Mut. Ins. Co., 55 AD3d 1389; Stone v Rullo Agency, Inc., 40 AD3d 1185; Loevner v Sullivan & Strauss Agency, Inc., 35 AD3d 392; Hoffend & Sons, Inc. v Rose & Kiernan, Inc., 19 AD3d 1056, 7 NY3d 152; McGarr v Guardian Life Ins. Co. of Am., 19 AD3d 254.)

      McGaw, Alventosa & Zajac, Jericho (Andrew Zajac and Dawn C. DeSimone of counsel), James M. Begley, New York City, Rona L. Platt, Uniondale, Brendan T. Fitzpatrick, Albertson, David B. Hamm, New York City, and Joseph Miller for Defense Association of New York, Inc., amicus curiae.
    I. In the absence of fraud or other wrongful conduct, an insured’s failure to read the policy it receives is a complete bar to any claim for negligent procurement against its insurance producer. (Blitman Constr. Corp. v Insurance Co. of N. Am., 66 NY2d 820; Matter of Level Export Corp. [Wolz, Aiken & Co.], 305 NY 82; Florence v Merchants Cent. Alarm Co., 51 NY2d 793; Pimpinello v Swift & Co., 253 NY 159; Metzger v Aetna Ins. Co., 227 NY 411; Motor Parkway

      Enters., Inc. v Loyd Keith Friedlander Partners, Ltd., 89 AD3d 1069; Portnoy v Allstate Indem. Co., 82 AD3d 1196; Maple House, Inc. v Alfred F. Cypes & Co., Inc., 80 AD3d 672; Stone v Rullo Agency, Inc., 40 AD3d 1185; Madhvani v Sheehan, 234 AD2d 652.) II. Insurance brokers are generally not fiduciaries and can only be held liable under the common law. The facts of this case do not warrant a finding of a special relationship, whereby the broker would be exposed to liability for breach of contract. (International Prods. Co. v Erie R.R. Co., 244 NY 331; Heard v City of New York, 82 NY2d 66; Kimmell v Schaefer, 89 NY2d 257; Murphy v Kuhn, 90 NY2d 266; Hoffend & Sons, Inc. v Rose & Kiernan, Inc., 7 NY3d 152.) III. As a matter of law, American Building Supply Corp. failed to specifically request the coverage found lacking here. Creating a duty to advise of the need to change coverage based on the vague and ambiguous testimony here would expand brokers’ liability beyond reasonable limits. (Hoffend & Sons, Inc. v Rose & Kiernan, Inc., 7 NY3d 152; Murphy v Kuhn, 90 NY2d 266; Frost v Mayville Tremaine, 299 AD2d 839; Loevner v Sullivan & Strauss Agency, Inc., 35 AD3d 392; MDW Enters. v CNA Ins. Co., 4 AD3d 338; M & E Mfg. Co. v Frank H. Reis, Inc., 258 AD2d 9; Chase’s Cigar Store v Stam Agency, 281 AD2d 911; Obomsawin v Bailey, Haskell & LaLonde Agency, Inc., 85 AD3d 1566; Empire Indus. Corp. v Insurance Cos. of N. Am., 226 AD2d 580; Catalanotto v Commercial Mut. Ins. Co., 285 AD2d 788.)
   OPINION OF THE COURT

ClPARIGK, J.

In this appeal, we are asked to determine if an action for negligence and breach of contract lies against an insurance broker for failure to procure adequate insurance coverage where the insured received the policy without complaint. We hold, where issues of fact exist as to a request for specific coverage, that the insured can maintain such an action and defendant’s motion for summary judgment should be denied.

I

Plaintiff American Building Supply Corp. (ABS) is a business which sells and furnishes building materials to general contractors. Plaintiff is located both in Manhattan and the Bronx. This action only concerns the premises located in the Bronx, where plaintiff is the sole tenant of a building it subleased from DRK, LLC (DRK), which had procured the property by entering into a lease agreement with the New York City Industrial Development Agency (NYCIDA). Pursuant to the lease agreement between DRK and NYCIDA, DRK was, among other things, required to procure general liability insurance from a carrier licensed to do business in the State of New York in the minimum amount of $5,000,000 for bodily injury and property damage. The sublease agreement between ABS and DRK, both owned and managed by the same person, noted that the sublessee consented to all the terms of the lease agreement.

Prior to October 2004, Pollack Associates, not a party to this appeal, was plaintiffs insurance broker and procured a policy with the Burlington Insurance Company (Burlington), an excess line carrier not licensed in the State of New York. DRK was named an additional insured under the policy. The policy did not comply with the requirements set forth by the lease agreements and was subsequently cancelled due to nonpayment of premiums. In October 2004, plaintiff hired defendant Petrocelli Group, Inc. to replace Pollack as its insurance broker. Defendant arranged to reinstate the Burlington policy. Plaintiff claims that in its discussions with defendant regarding a new policy, it specifically requested general liability coverage for its employees in case of injury, as required by the lease agreements. Plaintiff also alleged that it informed defendant that only employees entered the premises, never customers, as no retail business was conducted at the Bronx location. Finally, plaintiff avers that defendant visited the premises and had assured NYCIDA that the insurance deficiencies would be corrected when the policy was up for renewal.

Defendant then renewed the Burlington policy for the period of June 14, 2005 through June 14, 2006. The policy was essentially the same as plaintiff had previously received through Pollack. The policy contained a cross liability exclusion clause that provided: “This insurance does not apply to any actual or alleged ‘bodily injury’, ‘property damage’, ‘personal injury’ or ‘advertising injury’ to . . . A present, former, future or prospective partner, officer, director, stockholder or employee of any insured.” Plaintiff did not read the insurance policy upon receipt, nor did the broker.

In October 2005, one of plaintiffs employees was injured at the Bronx facility in the course of performing his duties. Burlington disclaimed coverage based upon the cross-liability exclusion. DRK sought a declaratory judgment against Burlington seeking a determination that Burlington was obligated to defend and indemnify plaintiff. Burlington moved for summary judgment. Supreme Court denied the motion and ordered Burlington to defend and indemnify plaintiff. The Appellate Division reversed, holding that Burlington had no duty to defend or indemnify based on the cross liability exclusion clause (see DRK, LLC v Burlington Ins. Co., 74 AD3d 693 [1st Dept 2010], lv denied 16 NY3d 702 [2011]).

Plaintiff next commenced this action against its broker for negligence and breach of contract in connection with defendant’s procurement of insufficient insurance. Following discovery, defendant moved for summary judgment dismissing the complaint. Supreme Court denied the motion, holding that “an issue of fact exists which precludes summary judgment” (2010 NY Slip Op 30611[U], *6 [2010]). Specifically, the court found that plaintiff testified that it informed defendant it required coverage if any employee injured himself or herself and that a jury could rationally conclude that plaintiff made a specific request for such coverage to defendant. The Appellate Division reversed, holding that although issues of fact may exist as to plaintiff’s request for specific coverage, plaintiff’s failure to “read and under [stand the] policy . . . precludes recovery in this action” (American Bldg. Supply Corp. v Petrocelli Group, Inc., 81 AD3d 531, 531-532 [1st Dept 2011]). We granted leave to appeal (17 NY3d 711 [2011]) and now reverse.

II

“[insurance agents have a common-law duty to obtain requested coverage for their clients within a reasonable time or inform the client of the inability to do so; however, they have no continuing duty to advise, guide or direct a client to obtain additional coverage” (Murphy v Kuhn, 90 NY2d 266, 270 [1997]). To set forth a case for negligence or breach of contract against an insurance broker, a plaintiff must establish that a specific request was made to the broker for the coverage that was not provided in the policy (see Hoffend & Sons, Inc. v Rose & Kiernan, Inc., 7 NY3d 152, 155 [2006]). “A general request for coverage will not satisfy the requirement of a specific request for a certain type of coverage” (id. at 158).

Here, plaintiff testified, at its deposition, that it specifically requested “general liability for the employees ... if anybody was to trip and fall or get injured in any way.” Plaintiff also testified that defendant was aware of ABS’s operations, i.e., that there were no retail sales to the public at the premises and that the only persons at the premises were plaintiffs employees. Defendant, of course, maintains that the procured coverage satisfied plaintiffs request. Like the courts below, we conclude that issues of fact exist as to whether plaintiff specifically requested coverage for its employees in case of accidental injury and defendant, being aware of such request, failed to procure the requested coverage.

This would be a more difficult case if it rested on plaintiffs uncorroborated word alone. Here, however, the evidence arguably supports plaintiffs claim. Since no one but employees ever entered the premises, the coverage defendant obtained, which excluded coverage for injuries to employees, hardly made sense.

ra

Defendant maintains, however, that plaintiffs claim is barred by its receipt of the insurance policy without complaint. In Hoffend we left open the question of whether a plaintiff who has received an insurance policy and had an opportunity to read it and had not requested any changes is barred from recovery (see 7 NY3d at 157). Various appellate courts have held that once an insured has received his or her policy, he or she is presumed to have read and understood it and cannot rely on the broker’s word that the policy covers what is requested (see Busker on Roof Ltd. Partnership Co. v Warrington, 283 AD2d 376, 376-377 [1st Dept 2001]; Rotanelli v Madden, 172 AD2d 815, 817 [2d Dept 1991], lv denied 79 NY2d 754 [1992]; Madhvani v Sheehan, 234 AD2d 652, 654-655 [3d Dept 1996]; Chase’s Cigar Store v Stam Agency, 281 AD2d 911, 912 [4th Dept 2001]). However, other appellate courts have been more forgiving and have held that receipt and presumed reading of the policy does not bar an action for negligence against the broker (see Kyes v Northbrook Prop. & Cas. Ins. Co., 278 AD2d 736, 737-738 [3d Dept 2000]; Reilly v Progressive Ins. Co., 288 AD2d 365, 366 [2d Dept 2001]). This may be such a case.

The facts as alleged here, that plaintiff requested specific coverage and upon receipt of the policy did not read it and lodged no complaint, should not bar plaintiff from pursuing this action. While it is certainly the better practice for an insured to read its policy, an insured should have a right to “look to the expertise of its broker with respect to insurance matters” (Baseball Off. of Commr. v Marsh & McLennan, 295 AD2d 73, 82 [1st Dept 2002]; see also Bell v O’Leary, 744 F2d 1370, 1373 [8th Cir 1984]). The failure to read the policy, at most, may give rise to a defense of comparative negligence but should not bar, altogether, an action against a broker (see Baseball Off. of Commr., 295 AD2d at 82).

Because there are issues of fact as to whether plaintiff requested specific coverage for its employees and whether defendant failed to secure a policy as requested, we conclude that summary judgment is inappropriate in this matter. We further conclude that plaintiffs failure to read and understand the policy should not be an absolute bar to recovery under the circumstances of this case.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the motion by defendant Petrocelli Group, Inc. for summary judgment denied.

Pigott, J. (dissenting).

It seems to me elementary that before you can complain about the contents of any contract, you should at least have read it. Nearly 100 years ago we held that when an insured receives an insurance contract, he or she has a duty to read and examine its contents (see Metzger v Aetna Ins. Co., 227 NY 411, 416 [1920]). There, we held that the insured is “conclusively presumed” to know the contents of the insurance contract and assent to it, when he or she signs or accepts the contract (id.).

While it is true that, until now, this Court had yet to decide whether the presumption applies to protect an insurance broker that has allegedly failed to obtain requested coverage, several appellate courts have considered the issue and appropriately applied the presumption (see McGarr v Guardian Life Ins. Co. of Am., 19 AD3d 254, 256 [1st Dept 2005]; Laconte v Bashwinger Ins. Agency, 305 AD2d 845 [3d Dept 2003]; Busker on Roof Ltd. Partnership Co. v Warrington, 283 AD2d 376 [1st Dept 2001]).

The majority offers no compelling reason why this basic requirement, i.e. that you read the thing, should not obtain in cases involving an insurance broker. Although an insured may claim to have relied upon the broker’s experience and knowledge in certain circumstances, we have made clear that insureds are in a better position to know both their own assets and ability to protect themselves than agents or brokers (Murphy v Kuhn, 90 NY2d 266, 273 [1997]). Agents and brokers are not “personal financial counselors and risk managers, approaching guarantor status” (id.). The relationship between a broker and an insured is not one in which continuing obligations to advise might exist but, rather, is an ordinary commercial relationship that does not give rise to a duty to provide such ongoing guidance (see id. at 270-271; see also Kimmell v Schaefer, 89 NY2d 257, 263-264 [1996]).

There are, of course, limitations on the presumption rule. For example, the presumption is overcome when a broker fails to correct a clear misimpression created by a binder (see Arthur Glick Truck Sales v Spadaccia-Ryan-Haas, Inc., 290 AD2d 780 [2002]), or when a broker makes an affirmative misrepresentation regarding coverage in response to questioning by the client after reviewing the policy (Kyes v Northbrook Prop. & Cas. Ins. Co., 278 AD2d 736 [2000]). Those limitations are not alleged here.

By permitting ABS to evade the conclusive presumption rule, the majority in essence allows an insured, months and possibly years after a policy is procured, to complain, following a loss, that it made a request of its broker for the relevant coverage but it was not forthcoming. This will almost always result in a “he said-she said” battle of what occurred during coverage discussions between the insured and broker.

In short, I agree with the Appellate Division that Petrocelli demonstrated its prima facie entitlement to judgment as a matter of law. It submitted the renewal policy to ABS and ABS concedes that it received it. Thus, ABS was conclusively presumed to know the contents, including the exclusions, of the policy. In opposition, ABS failed to raise a triable issue of fact. Had ABS read the policy, and claimed not to have understood the cross-liability exclusion and that Petrocelli misled it with respect to the meaning thereof, a clear question of fact would have been presented. However, ABS does not dispute receipt of the policy and admitted that it did not review it; and, as the Appellate Division noted, the record failed to demonstrate any exception to the presumption that ABS assented to the policy terms.

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

Order reversed, etc.


author: ClPARICK, J. Chief Judge Lippman (dissenting).

text:
    [979 NE2d 1187, 955 NYS2d 860]
    The People of the State of New York, Respondent, v Emil Best, Appellant.
    Argued October 11, 2012;
    decided November 20, 2012

      POINTS OF COUNSEL

      Legal Aid Society of Nassau County, Hempstead (Tammy Feman, Kent V. Moston and Jeremy L. Goldberg of counsel), for appellant.
    I. Appellant was denied a fair trial where he was handcuffed and shackled during his misdemeanor bench trial without basis in the record. (People v Cruz, 17 NY3d 941; People v Clyde, 18 NY3d 145; Deck v Missouri, 544 US 622; People v Neu, 124 AD2d 885; Illinois v Allen, 397 US 337; In re Gault, 387 US 1; People v Buchanan, 13 NY3d 1; People v Thomas, 125 AD2d 873; Davidson v Riley, 44 F3d 1118; People v Mendola, 2 NY2d 270.) II. The District Court information charging appellant with endangering the welfare of a child is jurisdictionally insufficient. Accordingly, the conviction should be reversed and the accusatory instrument dismissed. (People v Casey, 95 NY2d 354; People v Henderson, 92 NY2d 677; People v Alejandro, 70 NY2d 133; People v Hall, 48 NY2d 927; People v Dumas, 68 NY2d 729; People v Seward, 173 Misc 2d 1020; People v Walker, 21 Misc 3d 748; People v Taylor, 23 Misc 3d 361; People v Mercado, 184 Misc 2d 40; People v Cenat, 176 Misc 2d 39.) III. The trial court erroneously denied appellant’s application for a subpoena duces tecum for the complainant’s school disciplinary records. (People v Gissendanner, 48 NY2d 543; People v Kozlowski, 11 NY3d 223; People v Bugayong, 182 AD2d 450; People v Reynolds, 193 Misc 2d 697; People v Knowell, 127 AD2d 794; People v Ehigie, 6 Misc 3d 1008[A], 2004 NY Slip Op 51754[U]; People v Flynn, 79 NY2d 879.) IV Appellant was not proven guilty beyond a reasonable doubt; the evidence was insufficient as a matter of law; the trial court erroneously denied appellant’s trial order of dismissal. (Jackson v Virginia, 443 US 307; People v Contes, 60 NY2d 620; People v Taylor, 94 NY2d 910; People v Allah, 71 NY2d 830; People v Simmons, 92 NY2d 829; People v Hitchcock, 98 NY2d 586; People v Payne, 3 NY3d 266; People v Camacho, 209 AD2d 534; Tibbs v Florida, 457 US 31; People v Rayam, 94 NY2d 557.)

      Kathleen M. Rice, District Attorney, Mineola (Joanna Hershey and Robert A. Schwartz of counsel), for respondent.
    I. The evidence was legally sufficient to prove defendant’s guilt beyond a reasonable doubt. (People v Contes, 60 NY2d 620; People v Samuels, 99 NY2d 20; People v Henderson, 282 AD2d 102; Matter of Lavar D., 90 NY2d 963; People v Norman, 85 NY2d 609; People v Khan, 18 NY3d 535; People v Simmons, 92 NY2d 829; People v Rice, 17 NY2d 881; People v Spencer, 66 Misc 2d 658; People v Doe, 137 Misc 2d 582.) II. Despite defendant’s unpreserved claim to the contrary, he was not denied a fair trial because he was handcuffed during his bench trial; moreover, any error was harmless. (People v Luperon, 85 NY2d 71; People v Dien, 77 NY2d 885; People v Osuna, 65 NY2d 822; People v Andrade, 87 AD3d 160; People v Johnston, 43 AD3d 1273; People v Santiago, 52 NY2d 865; People v Gray, 278 AD2d 151; People v Barney, 99 NY2d 367; People v Becoats, 17 NY3d 643; People v Rouse, 79 NY2d 934.) III. The accusatory instrument charging defendant with endangering the welfare of a child was jurisdictionally sufficient. (People v Alejandro, 70 NY2d 133; People v Kalin, 12 NY3d 225; People v Konieczny, 2 NY3d 569; People v Casey, 95 NY2d 354; People v Rozario, 20 Misc 3d 76; People v Johnson,
      93 NY2d 254; People v Clinkscales, 3 Misc 3d 333; People v Mizell, 72 NY2d 651; People v Simmons, 92 NY2d 829; People v Rice, 17 NY2d 881.) IV Defendant abandoned his request for a subpoena duces tecum by not renewing his motion during the victim’s testimony; in any event, the court properly denied his earlier requests without prejudice to renew because the victim’s school disciplinary records were not shown to be relevant. (People v Russell, 71 NY2d 1016; People v Billip, 65 AD3d 430; People v Graves, 85 NY2d 1024; People v Baumann & Sons Buses, Inc., 6 NY3d 404; People v Kozlowski, 11 NY3d 223; People v Gissendanner, 48 NY2d 543; People v Reddick, 43 AD3d 1334; People v Simmons, 92 NY2d 829; People v Crimmins, 38 NY2d 407.)
   OPINION OF THE COURT

ClPARICK, J.

In this appeal, we must determine whether defendant’s conviction should be overturned because the trial court restrained defendant during the course of his bench trial without articulating a specific justification for doing so. We hold that the rule governing visible restraints in jury trials applies with equal force to nonjury trials and that District Court erred in failing to state a basis on the record for keeping defendant handcuffed throughout these proceedings. Based upon our recent holding in People v Clyde (18 NY3d 145 [2011]), however, we conclude that the constitutional error committed here was harmless.

Defendant Emil Best was charged with endangering the welfare of a child (Penal Law § 260.10 [1]) based upon an allegation that he offered a 12-year-old boy $50 to expose his penis. In a written statement wherein defendant waived his Miranda rights, he admitted that he made the alleged offer, although he claimed to have done so in jest. The record reflects that defendant appeared for his Sandoval hearing with his hands cuffed behind his back. At the start of the hearing, defense counsel “requested] that [defendant’s] handcuffs be removed.” District Court “grant[ed] the request to the extent [of asking] the officers to handcuff him in front.” Thereafter, defendant waived his right to a jury trial. At the start of trial, defense counsel requested that the court remove defendant’s handcuffs and shackles. The court again “direct[ed] that the defendant be handcuffed in front.” On the second day of trial, defense counsel reiterated her request “that [defendant’s] handcuffs be removed.” Again, the court “direct[ed] the officers to handcuff the defendant in the front.” In addition to defendant’s written statement, the People offered testimony by the then 14-year-old complainant, who stated that defendant offered him money to expose himself while the two were riding in the backseat of a car. Complainant testified that he felt “violated” by the incident and began counseling as a result of it. District Court convicted defendant. Appellate Term upheld the conviction, rejecting defendant’s claim that the trial court erred in ordering that defendant remain handcuffed during the proceedings (People v Best, 31 Misc 3d 141[A], 2011 NY Slip Op 50826[U] [App Term 2011]). A Judge of this Court granted defendant leave to appeal (17 NY3d 951 [2011]), and we now affirm on harmless error grounds.

A trial court that restrains a defendant during criminal proceedings must state a particularized reason for doing so on the record. In Deck v Missouri (544 US 622 [2005]), the United States Supreme Court declared that the Federal Constitution “forbid[s] routine use of visible shackles during the guilt phase” of a trial and “permits a State to shackle a criminal defendant only in the presence of a special need” (id. at 626). Accordingly, the use of visible restraints must be “justified by an essential state interest . . . specific to the defendant on trial” (id. at 624 [internal quotation marks omitted]), and where the court fails to provide such justification “the defendant need not demonstrate actual prejudice to make out a due process violation” (id. at 635). Consistent with Deck, we held in Clyde that, as a matter of both federal and state constitutional law, “[a] defendant has the right to be free of visible shackles, unless there has been a case-specific, on-the-record finding of necessity” (18 NY3d at 153; see also People v Cruz, 17 NY3d 941, 944-945 [2011] [holding that the use of leg shackles without an independent judicial determination regarding the need for them violated defendant’s constitutional rights under Deck]).

The People contend that the rule of Deck, Clyde and Cruz is inapplicable to defendant’s case because he was tried by the court rather than by a jury. We see no basis for such a distinction. In Deck, the United States Supreme Court explained that “[j judicial hostility to shackling . . . giv[es] effect to three fundamental legal principles” {id. at 630): (1) preserving the presumption of innocence to which every criminal defendant is entitled; (2) ensuring that the defendant is able to participate meaningfully in his or her defense; and (3) maintaining the dignity of the judicial process {see id. at 630-631). The routine and unexplained use of visible restraints does violence to each of these principles, essential pillars of a fair and civilized criminal justice system that are no less implicated when the fact-finder is the trial judge rather than a jury.

It is true, as the Appellate Term observed, that “ ‘[ujnlike a lay jury, a Judge ... is uniquely capable of . . . making an objective determination based upon appropriate legal criteria, despite awareness of facts which cannot properly be relied upon in making the decision’ ” (Best, 2011 NY Slip Op 50826[U] at *1, quoting People v Moreno, 70 NY2d 403, 406 [1987]). Nonetheless, judges are human, and the sight of a defendant in restraints may unconsciously influence even a judicial factfinder. Moreover, the psychological impact on the defendant of being continually restrained at the order of the individual who will ultimately determine his or her guilt should not be overlooked. Nor should we ignore the way the image of a handcuffed or shackled defendant affects the public’s perception of that person and of criminal proceedings generally.

Here, District Court articulated no justification, let alone one specific to defendant, for ordering defendant’s continual restraint. While such a basis may very well have existed, the court’s failure to say so on the record constitutes a violation of defendant’s constitutional rights under Deck.

In Clyde, however, we held that constitutional harmless error analysis applies to shackling violations (see 18 NY3d at 148). Applying that analysis here, we conclude that the trial court’s omission was indeed harmless. A constitutional error may be harmless where evidence of guilt is overwhelming and there is no reasonable possibility that it affected the outcome of the trial (see id. at 153-154; People v Douglas, 4 NY3d 777, 779 [2005]). Here, defendant’s own admission established that he offered complainant, a child, $50 to expose his penis. Complainant testified to the same facts. Thus, there exists overwhelming evidence that defendant, 31 years old at the time of the alleged crime, knowingly acted in a manner likely to be injurious to complainant’s welfare and was, therefore, guilty of endangering the welfare of a child (Penal Law § 260.10 [1]). Given that quantum of evidence, we do not think there is any reasonable possibility that defendant’s appearance in handcuffs contributed to District Court’s finding of guilt.

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

Chief Judge Lippman (dissenting).

The presumption of innocence for those accused is “the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law” (Coffin v United States, 156 US 432, 453 [1895]). The unwarranted shackling of defendants strikes at the heart of the right to be presumed innocent, and for the reasons that follow, I respectfully dissent.

In a bench trial, the factfinder determines whether the defendant poses a particular security risk that warrants restraint. Here, the trial judge chose to keep the defendant in shackles throughout his trial despite the lack of any individualized security concerns stated on the record. The District Court’s actions intimated that it believed defendant to be a dangerous character who needed to be restrained, which inevitably affected its role as factfinder before a scintilla of evidence was presented. The use of shackles without record justification in a bench trial presents a scenario with unique dangers, different from the ones addressed in People v Clyde (18 NY3d 145 [2011]) and People v Cruz (17 NY3d 941 [2011]).

We held in People v Buchanan (13 NY3d 1, 4 [2009]) that “as a matter of New York law . . . it is unacceptable to make a stun belt a routine adjunct of every murder trial, without a specifically identified security reason” and without reaching the constitutional due process issues discussed in Deck v Missouri (544 US 622, 626 [2005]). We determined that ordering a defendant to wear a stun belt without a basis in the record was an egregious error that itself warranted reversal. Here, were it necessary to reach the constitutional issues, I would certainly agree with the majority’s view that the present facts comprise a violation of constitutional rights under Deck v Missouri (544 US at 626; see US Const 5th, 14th Amends). Under our state law framework in Buchanan, having the trier of fact order the shackling of a defendant without an individualized determination of the defendant’s security risk is an egregious error that requires a new trial. Not only is a defendant “entitled to appear in court with the dignity and the self-respect of a free and innocent man” (People v Roman, 35 NY2d 978, 979 [1975]), a defendant is entitled to have his case decided by a judge who has due regard for the rights of the accused and the decorum of the courtroom. In a bench trial where the court chooses to keep a defendant in shackles without adequate record justification, the judge prioritizes convenience over the administration of justice. Allowing a defendant to attend his own trial without restraints and to participate in his defense is crucial, and a defendant should not be tried in an undignified atmosphere, stripped of the presumption of innocence.

The People urge the Court to assume that the unexplained use of handcuffs and restraints will never have an effect on a judge’s determination of a defendant’s guilt or innocence. To take the People’s position is to obviate the need for any harmless error analysis in a bench trial, as they propose that a judge will always be insulated from prejudice on any matter. To make this assumption is to degrade a defendant’s right to be presumed innocent. Visible shackles give the impression to any trier of fact that a person is violent, a miscreant, and cannot be trusted (see People v Clyde, 18 NY3d 145, 158 [2011, Lippman, Ch. J., dissenting] [shackling is “understood to be reserved for the management of dangerous and explosive individuals—persons presumptively predisposed to violent crime”]).

Even if the Court should decide the present case based on a harmless error analysis, as the majority proposes, the People did not prove “beyond a reasonable doubt that the [shackling] error complained of did not contribute to the verdict obtained” (Deck v Missouri, 544 US at 635, quoting Chapman v California, 386 US 18, 24 [1967] [internal quotation marks omitted]). Upon a constitutional harmless error analysis, there has been insufficient showing that the defendant was not prejudiced and that the shackling error did not affect the verdict (see People v Clyde, 18 NY3d 145, 153-154 [2011] [considering “the quantum and nature of the evidence against defendant if the error is excised” and the error’s effect on the factfinder in determining whether an error is harmless]). Here, the improper shackling of defendant without basis in the record cannot have been harmless error because the evidence against defendant was not overwhelming. While the evidence was legally sufficient to convict defendant, there was testimony at trial that in defendant’s limited mind, his behavior amounted to nothing more than bantering or teasing. Indeed, the police characterized defendant as “slow in his movement and speech,” “timid,” and “deficient],” and the complainant testified that he never felt scared by the encounter or defendant. There was little indication that the encounter between the complainant and defendant was sexual in nature. Given that defendant’s conviction stemmed almost entirely from the, at times, inconsistent testimony of a 12-year-old boy, the evidence was far from overwhelming.

I continue to believe that “[gliven the very basic interests at stake, and the ease with which they can properly be afforded the judicial consideration they are due, there should be a clear rule that the failure to make a record to justify restraining a defendant at trial will necessitate a new trial” (People v Cruz, 17 NY3d 941, 947 [2011, Lippman, Ch. J., dissenting]). This rule should be no less imperative in bench trials, where the judge is the sole trier of fact.

Judges Graffeo, Read, Smith and Pigott concur with Judge Cipajrick; Chief Judge Lippman dissents in a separate opinion.

Order affirmed.

      The record does not indicate whether defendant remained shackled.


author: Memorandum.

text:
    [969 NE2d 207, 946 NYS2d 91]
    The People of the State of New York, Respondent, v Morris B. Yuson, Appellant.
    Decided May 1, 2012

      APPEARANCES OF COUNSEL

      Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of counsel), for appellant.

      Michael C. Green, District Attorney, Rochester (Kelly Christine Wolford of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by vacating the sentence and remitting the case to County Court for resentencing in accordance with this memorandum and, as so modified, affirmed.

On November 30, 2007, defendant pleaded guilty, as a first time felony offender, to assault in the second degree (Penal Law § 120.05 [2]), a class D violent felony offense (see Penal Law § 70.02 [1] [c]). County Court promised defendant that it would impose a determinate sentence of imprisonment of 3V2 years with the “minimum” allowable postrelease supervision (PRS) term. At sentencing, County Court imposed a five-year term of PRS.

Defendant maintains that the court erred when it imposed a five-year PRS term. We agree. It is true that Penal Law § 70.45 (2) generally provides that the term of PRS for a determinate sentence shall be five years. Penal Law § 70.45 (2) (e), however, states the term of PRS

“shall be not less than one and one-half years nor more than three years whenever a determinate sentence of imprisonment is imposed pursuant to subdivision three of section 70.02 of this article upon a conviction of a class D or class E violent felony offense.”

Penal Law § 70.02 (3) sets forth the sentencing ranges courts must adhere to when imposing a determinate sentence of imprisonment on a first time felony offender. For a class D violent felony, the imprisonment term “must be at least two years and must not exceed seven years” (Penal Law § 70.02 [3] [c]). Since defendant was sentenced in accordance with Penal Law § 70.02 (3) (c), the imposition of a five-year PRS term was improper. The People’s argument that Penal Law § 70.02 (4) required County Court to impose a five-year PRS term has no merit. Subdivision (4) of section 70.02 merely provides that a determinate sentence of imprisonment must be imposed under certain circumstances.

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

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order modified, etc.


text:
    [968 NE2d 994, 945 NYS2d 639]
    Sarbjeet Kaur, as Receiver of Gladys Towncars, Inc. and Another, Respondent, v American Transit Insurance Company et al., Defendants, and Baker, McEvoy, Morrissey & Moskovits, P.C., Appellant.
    Decided May 1, 2012

      APPEARANCES OF COUNSEL

      Steinberg & Cavaliere, LLP, White Plains (Ronald W. Weiner of counsel), for appellant.

      Sivin & Miller, L.L.P., New York City (Edward Sivin of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, with costs, order of Supreme Court, New York County, reinstated and certified question answered in the negative. Triable issues of fact exist concerning defendant-appellant’s successor liability (see Schumacher v Richards Shear Co., 59 NY2d 239, 245 [1983]).

Concur: Chief Judge Lippman and Judges Cipakick, Graffeo, Read, Smith, Pigott and Jones.


text:
    [968 NE2d 994, 945 NYS2d 639]
    In the Matter of O., Respondent, v M., Appellant.
    Decided May 1, 2012

      APPEARANCES OF COUNSEL

      Ronald R. Levine, Poughkeepsie, for appellant.

      Law Office of Bruce A. Petito, Poughkeepsie (Bruce A. Petito of counsel), for respondent.

      Brooke & Brady, LLP, Poughkeepsie (Kelly R. Brady of counsel), Attorney for the Child.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the matter remitted to Family Court for further proceedings in accordance with this memorandum.

Family Court erred by failing to hold a hearing on equitable estoppel after genetic testing was conducted (see Matter of Juanita A. v Kenneth Mark N., 15 NY3d 1 [2010]; Matter of Shondel J. v Mark D., 7 NY3d 320 [2006]). Additionally, we note that Family Court has subject matter jurisdiction to make a child support award against appellant notwithstanding a New Jersey order directing another individual to pay child support (see Matter of Clarke v Clarke, 68 AD3d 1203, 1204-1205 [3d Dept 2009]). Consequently, we remit the matter to Family Court for a hearing and determination addressing appellant’s equitable estoppel claim (see Juanita A., 15 NY3d at 6), and any further proceedings, if appropriate.

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

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, etc.


text:
    In the Matter of Anonymous et al., Appellants, v Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted February 27, 2012;
    decided May 1, 2012
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument or, in the alternative, leave to appeal to the Court of Appeals, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Victor Y. Batshever, Appellant, v Daniel Black et al., Respondents.
    Submitted February 27, 2012;
    decided May 1, 2012
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain it (see CPLR 5602). Motion for poor person relief dismissed as academic.


text:
    Lisa Bruno, Appellant, v Stephen Bruno et al., Respondents.
    Submitted March 19, 2012;
    decided May 1, 2012
   Motion for reargument of motion for leave to appeal denied [see 18 NY3d 805 (2012)]. Cross motion for the imposition of sanctions denied.


text:
    Frank Cervera, Appellant, v Rossanna Bressler, Respondent.
    Decided May 1, 2012
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of the Claim of Ronald I. Cohen, Respondent. Town of Brookhaven, Appellant; Commissioner of Labor, Respondent.
    Submitted February 27, 2012;
    decided May 1, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Derek P., Appellant, v Doris Q., Respondent. (And Another Related Proceeding.)
    Submitted March 12, 2012;
    decided May 1, 2012
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that dismissed appellant’s appeal from Family Court’s dismissal of his petition to enforce a prior Family Court order, dismissed upon the ground that such portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Miladin Dobric, Appellant, v Park Len North Owner, Inc., et al., Respondents.
    Submitted January 17, 2012;
    decided May 1, 2012
   Motion for reargument of motion for leave to appeal denied [see 17 NY3d 921 (2011)].


text:
    In the Matter of Peter J. Galasso (Admitted as Peter John Galasso), an Attorney, Appellant. Grievance Committee for the Ninth Judicial District, Respondent.
    Submitted April 2, 2012;
    decided May 1, 2012
   Motion for leave to appeal granted. Motion for a stay granted.


text:
    In the Matter of Peter J. Galasso (Admitted as Peter John Galasso), an Attorney, Appellant. Grievance Committee for the Ninth Judicial District, Respondent
    Submitted April 16, 2012;
    decided May 1, 2012
   Motion by the Nassau County Bar Association for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed, and for leave to file a brief amicus curiae on the appeal herein granted, three copies of the brief to be served and 19 copies filed within 30 days.


text:
    In the Matter of Peter J. Galasso (Admitted as Peter John Galasso), an Attorney, Appellant. Grievance Committee for the Ninth Judicial District, Respondent.
    Submitted April 9, 2012;
    decided May 1, 2012
   Motion by the Matrimonial Bar Association of Suffolk County for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    In the Matter of Peter J. Galasso (Admitted as Peter John Galasso), an Attorney, Appellant. Grievance Committee for the Ninth Judicial District, Respondent.
    Submitted April 9, 2012;
    decided May 1, 2012
   Motion by the Bronx County Bar Association for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    In the Matter of Peter J. Galasso (Admitted as Peter John Galasso), an Attorney, Appellant. Grievance Committee for the Ninth Judicial District, Respondent.
    Submitted April 23, 2012;
    decided May 1, 2012
   Motion by New York State Trial Lawyers Association for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    Erica L. Niemann et al., as Coadministrators of the Estate of Timothy W. Niemann, Deceased, Appellants, v St. Joseph’s Hospital Health Center et al., Respondents, et al., Defendants.
    Submitted February 21, 2012;
    decided May 1, 2012
   Motion for reargument of motion for leave to appeal denied [see 18 NY3d 875 (2012)].


text:
    The People of the State of New York, Respondent, v Corey Gamble, Appellant.
    Submitted March 26, 2012;
    decided May 1, 2012
   Motion for reargument denied [see 18 NY3d 386 (2012)].


text:
    In the Matter of Recovery of Judgment, LLC, as Assignee of Joshua Wander, Respondent, v Joseph Warren, Appellant.
    Submitted March 19, 2012;
    decided May 1, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Rite Capital Group, LLC, et al., Respondents, v LMAG, LLC, et al., Defendants, and Zeg Enterprises, Inc., Appellant.
    Submitted March 19, 2012;
    decided May 1, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Satellite Asset Management, L.P., Respondent, v Fifth Avenue Building Company, LLC, Appellant.
    Submitted March 5, 2012;
    decided May 1, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    [969 NE2d 209, 946 NYS2d 93]
    Frederick Bready et al., Appellants, v CSX Transportation, Inc., Respondent, et al., Defendant. Brandon Harris et al., Appellants, v CSX Transportation, Inc., Respondent, et al., Defendant.
    Decided May 3, 2012

      APPEARANCES OF COUNSEL

      Magavern Magavern Grimm LLP, Buffalo (Edward J. Markarian of counsel), and Collins, Collins & Donoghue, PC. (Patrick J. Donoghue of counsel), for appellants in the first and second above-entitled actions.

      Mayer Brown LLP, Washington, D.C. (Dan Himmelfarb of counsel), and Goldberg Segalla LLP, Buffalo (John J. Jablonski of counsel), for respondent in the first and second above-entitled actions.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division in each case should be affirmed, with costs. Assuming without deciding that defendant CSX Transportation, Inc. owed plaintiffs a higher duty of care under the Federal Employers’ Liability Act than under the common law, defendant made a prima facie showing that it did not breach that duty of care. Plaintiffs, in response, failed to establish that a triable issue of fact existed on the issue of breach of the duty of care. Accordingly, the Appellate Division properly granted defendant’s motion for summary judgment dismissing the complaint in each case.

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

In each case: On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, in a memorandum.


text:
    Altshuler Shaham Provident Funds, Ltd., Appellant, v GML Tower LLC et al., Defendants, and The Pike Company, Inc., et al., Respondents.
    Submitted March 26, 2012;
    decided May 3, 2012
   Motion for reargument of motion for leave to appeal denied [see 18 NY3d 892 (2012)].


text:
    Bankers Trust Company of California, N.A., Respondent, v Mary Lee Ward, Appellant, et al., Defendants.
    Submitted March 19, 2012;
    decided May 3, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    John B. Bell, Appellant, v New York State Higher Education Services Corporation, Respondent.
    Submitted March 19, 2012;
    decided May 3, 2012
   On the Court’s own motion, appeal, insofar as taken from that portion of the Appellate Division order that dismissed the appeal from the September 2009 Supreme Court order, dismissed, without costs, upon the ground that no substantial constitutional question is directly involved; appeal otherwise dismissed, without costs, upon the ground that the remaining portion of the order appealed from does not finally determine the action within the meaning of the Constitution. Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that dismissed the appeal from the September 2009 Supreme Court order, denied; motion for leave to appeal otherwise dismissed upon the ground that the remaining portion of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of the Claim of Ramiz Berisha, Appellant. Commissioner of Labor, Respondent.
    Submitted March 19, 2012;
    decided May 3, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of David Burr, Appellant, v Timothy B. Howard, Sheriff of Erie County, Respondent.
    Submitted March 19, 2012;
    decided May 3, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Dock A. Cope, Appellant, v Aatif Barakaat et al., Defendants, and Olabanji Awosika et al., Respondents.
    Submitted February 21, 2012;
    decided May 3, 2012
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed the May 2010 Supreme Court order, denied; motion for leave to appeal otherwise dismissed upon the ground that the remaining portion of the Appellate Division order does not finally determine the action within the meaning of the Constitution.


text:
    Jane Doe, Respondent, v North Tonawanda Central School District, Appellant.
    Submitted March 12, 2012;
    decided May 3, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    William Hosmer et al., Plaintiffs, v Kubricky Construction Corporation, Respondent, and Town of Fort Ann, Appellant, et al., Defendants. (And 13 Other Related Actions.)
    Submitted March 26, 2012;
    decided May 3, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the actions within the meaning of the Constitution.


text:
    Eric Martin, Appellant, v Southern Container Corp. et al., Respondents.
    Submitted March 26, 2012;
    decided May 3, 2012
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed the denial of appellant’s motion to amend the complaint, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Lijo Panghat, M.D., Appellant, v New York State Division of Human Rights, Respondent.
    Submitted March 12, 2012;
    decided May 3, 2012
   Motion for leave to appeal from the Appellate Division order dismissing the appeal from the July 2010 Supreme Court order, dismissed upon the ground that such order does not finally determine the action within the meaning of the Constitution.

Chief Judge Lippman taking no part.


text:
    Lijo Panghat, M.D., Appellant, v New York State Division of Human Rights, Respondent.
    Submitted April 16, 2012;
    decided May 3, 2012
   Motion for leave to appeal from the Appellate Division order that affirmed the November 2010 Court of Claims order denied with $100 costs and necessary reproduction disbursements.

Chief Judge Lippman taking no part.


text:
    In the Matter of People of State of New York, Respondent, v Mircea Veleanu, Doing Business as Objets D’Art Uniques, Appellant.
    Submitted March 12, 2012;
    decided May 3, 2012
   Motion for leave to appeal denied with $100 costs and necessary reproduction disbursements. Motion for a stay dismissed as academic.


text:
    The People of the State of New York, Respondent, v Bill Williams, Appellant.
    Submitted April 30, 2012;
    decided May 3, 2012
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    Uri Tornheim, Appellant, v Blue & White Food Products Corp., Respondent.
    Submitted February 14, 2012;
    decided May 3, 2012
   Motion for leave to appeal from the Appellate Division order that modified the Supreme Court judgment denied with $100 costs and necessary reproduction disbursements.


text:
    Uri Tornheim, Appellant, v Blue & White Food Products Corp., Respondent.
    Submitted February 14, 2012;
    decided May 3, 2012
   Motion for leave to appeal from the Appellate Division order affirming the Supreme Court order that denied appellant’s motion to vacate, dismissed upon the ground that such order does not finally determine the action within the meaning of the Constitution.


text:
    [969 NE2d 214, 946 NYS2d 97]
    In the Matter of Damian G. and Another, Infants. Oneida County Department of Social Services, Respondent; Jacquelyn M. et al., Appellants.
    Decided May 8, 2012

      APPEARANCES OF COUNSEL

      Koslosky & Koslosky, Utica ('William L. Koslosky of counsel), for Jacquelyn M., appellant.

      Mary R. Humphrey, New Hartford, for Christopher G., appellant.

      John A. Herbowy, Utica, for respondent.

      Susan B. Marris, Manlius, Attorney for the Children.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, with costs, and petition dismissed. The determinations of neglect against Jacquelyn M. and Christopher G. are not supported by legally sufficient evidence.

Concur: Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones.


text:
    [969 NE2d 215, 946 NYS2d 98]
    The People of the State of New York, Respondent, v Tyray Gilliam, Appellant. The People of the State of New York, Respondent, v Alberto de Luna, Appellant. The People of the State of New York, Respondent, v Quintrell Joe, Appellant. The People of the State of New York, Respondent, v Darnell Norton, Appellant.
    Decided May 8, 2012

      APPEARANCES OF COUNSEL

      Hiscock Legal Aid Society, Syracuse (Philip Rothschild of counsel), for appellant in the first above-entitled action.

      William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), for respondent in the first above-entitled action.

      Center for Appellate Litigation, New York City (Lisa A. Packard and Robert S. Dean of counsel), for appellant in the second above-entitled action.

      Cyrus R. Vance, Jr., District Attorney, New York City (Nicole A. Coviello of counsel), for respondent in the second above-entitled action.

      Hiscock Legal Aid Society, Syracuse (Christine M. Cook of counsel), for appellant in the third above-entitled action.

      William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White and James P. Maxwell of counsel), for respondent in the third above-entitled action.

      Timothy P. Donaher, Public Defender, Rochester (Kimberly F. Duguay of counsel), for appellant in the fourth above-entitled action.

      Sandra Doorley, District Attorney, Rochester (Leslie E. Swift of counsel), for respondent in the fourth above-entitled action.
   OPINION OF THE COURT

Memorandum.

In each case, the order of the Appellate Division should be reversed and the matter remitted to that Court for further proceedings in accordance with this memorandum.

In these unrelated cases, defendants pleaded guilty to a particular crime and waived the right to appeal. Each defendant subsequently challenged the validity of the waiver and asserted that the sentence was excessive. The Appellate Division summarily affirmed without indicating whether it relied on the waiver or determined that the sentencing claim lacked merit (People v Gilliam, 86 AD3d 923 [4th Dept 2011], lv granted 17 NY3d 953 [2011]; People v de Luna, 86 AD3d 433 [1st Dept 2011], lv granted 17 NY3d 952 [2011]; People v Joe, 87 AD3d 1266 [4th Dept 2011], lv granted 18 NY3d 859 [2011]; People v Norton, 87 AD3d 1310 [4th Dept 2011], lv granted 18 NY3d 861 [2011]). This was impermissible under People v Qoshja (17 NY3d 910, 911 [2011]). Consequently, we reverse and remit each case to the Appellate Division for clarification of the basis of its decision.

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

In People v de Luna: On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the memorandum herein.

In People v Gilliam, People v Joe and People v Norton: On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed and case remitted to the Appellate Division, Fourth Department, for further proceedings in accordance with the memorandum herein.


text:
    In the Matter of Bausch & Lomb Contact Lens Solution Product Liability Litigation. Plaintiffs in the New York Coordinated Proceeding, Appellants, v Bausch & Lomb, Respondent.
    Submitted March 26, 2012;
    decided May 8, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.