source: Caselaw Access Project

author: Chief Judge Lippman.

license: Public Domain

text:
    [940 NE2d 530, 914 NYS2d 704]
    In the Matter of Kese Industries et al., Respondents, v Roslyn Torah Foundation et al., Appellants, et al., Respondents.
    Argued October 13, 2010;
    decided November 17, 2010

      POINTS OF COUNSEL

      Kenneth Cooperstein, Centerport, for appellants.
    I. This Court should overrule Matter of Hua Nan Commercial Bank v Albicocco (270 AD2d 265 [2000]) because its construction of “legal representative” to mean attorneys of record is manifestly unreasonable. (Facchin v Pekich, 232 AD2d 447; Etterle v Excelsior Ins. Co. of N.Y., 74 AD2d 436; Briggs v Walker, 171 US 466; Sulz v Mutual Reserve Fund Life Assn., 145 NY 563; Matthews v American Cent. Ins. Co., 154 NY 449; Geoffroy v Gilbert, 5 App Div 98, 154 NY 741; Shiya v Erickson, 156 Misc 738; Kem Mfg. Corp. v Wilder, 817 F2d 1517; Western Steel Erection Co. v United States, 424 F2d 737; Mobay Chem. Co. v Hudson Foam Plastics Corp., 277 F Supp 413.) II. Notice to redeem from a tax lien given pursuant to Nassau County Administrative Code § 5-51.0 (a) need not be given to attorneys of record for parties in interest and the referee in an unrelated foreclosure action concerning the subject premises where judgment of foreclosure has been entered, the notice of pendency expired 18 months earlier, and the foreclosure judgment has not been recorded in the block index—especially where the clients are sui juris and have received actual notice. (Matter of Sakow, 97 NY2d 436; Horowitz v Griggs, 2 AD3d 404; Matter ofHua Nan Commercial Bank v Albicocco, 270 AD2d 265; Mullane v Central Hanover Bank & Trust Co., 339 US 306; Jones v Flowers, 547 US 220; Long Is. City Sav. & Loan Assn. v Suggs, 78 Misc 2d 16; Morgan v Ellenville Sav. Bank, 55 AD2d 178; Crisona v Macaluso, 33 AD2d 569.) III. The issues are novel and they are important because the order of the Appellate Division will have an adverse impact on the public fisc in Nassau County.

      Pryor & Mandelup, L.L.P., Westbury (John H. Hall, Jr., of counsel), for respondents.
    I. This Court should not overrule Matter of Hua Nan Commercial Bank v Albicocco (270 AD2d 265 [2000]) because the decision is consistent with the teachings of this Court, is a logical reading of the Nassau County Administrative Code, and is now precedent. (Matter of McCann v Scaduto, 71 NY2d 164; Mennonite Bd. of Missions v Adams, 462 US 791; Jones v Flowers, 547 US 220; Matter of Wing v Ryan, 255 App Div 163; Briggs v Walker, 171 US 466; Etterle v Excelsior Ins. Co. of N.Y., 74 AD2d 436; People v Hobson, 39 NY2d 479; Matter of Higby v Mahoney, 48 NY2d 15.) II. The Court should uphold Justice LaMarca’s decision that a referee should be provided with notice. (Segal v Jackson, 183 Misc 460; Constellation Bank v Binghamton Plaza, 236 AD2d 698.) III. The fact that a notice of pendency has expired has no effect upon the tax lienor’s duty to provide notice to the mortgagee’s foreclosure attorneys. (Walter v State Bank of Albany, 73 AD2d 406; Matter of Sakow, 97 NY2d 436; Horowitz v Griggs, 2 AD3d 404.) IV Whether or not the foreclosure attorney can be found on the block index is irrelevant. V Appellants’ attempts to limit the notice requirement of the Nassau County Administrative Code are against public policy.
   OPINION OF THE COURT

Chief Judge Lippman.

This appeal requires us to interpret whether the term “legal representative,” which ordinarily denotes the executor or administrator of an estate, may encompass a party’s retained legal counsel in a pending action. This question comes to us in the context of Nassau County Administrative Code § 5-51.0, which sets out the duty of a tax lien purchaser to provide notice that a tax deed will be issued unless the right to redeem the lien is exercised. We conclude that the mortgagee’s attorney in a pending foreclosure action concerning the same property is not a “legal representative” within the meaning of section 5-51.0, and that the court-appointed referee in a foreclosure action is not an interested party entitled to notice under section 5-51.0.

Roslyn Torah Foundation (RTF), a not-for-profit corporation that operates an orthodox synagogue and high school, purchased property in Roslyn, Nassau County, from the Theodore Roosevelt Council of the Boy Scouts of America (the Boy Scouts) in January 1998. At the time, RTF and the Boy Scouts executed a purchase money mortgage on the property for the principal amount of $1.2 million. RTF maintained a synagogue and high school on part of the parcel and the rest remained undeveloped. Three years later, RTF defaulted on its mortgage payments, causing the Boy Scouts to commence a foreclosure action in May 2002. At the time, notice of pendency was filed on the property, which expired no later than May 2005 and was not renewed. In October 2002, the Boy Scouts assigned the note and mortgage to respondent Kese Industries (Kese). Kese retained a foreclosure attorney to prosecute the foreclosure action begun by the Boy Scouts. Supreme Court entered a judgment of foreclosure and sale against RTF in March 2005 and appointed a referee to conduct the foreclosure sale. The sale was thereafter delayed by RTF’s bankruptcy filings, which were ultimately dismissed by federal court.

In December 2003, RTF transferred all its property except for the lot that housed the synagogue and school to Roslyn Gate Corporation (Roslyn Gate). RTF failed to make any additional mortgage payments to Kese for several years and also defaulted on property taxes for the 2003-2004 school year and 2004 general tax year, when it neglected to file for tax exempt status.

In response to the default on property taxes, in February 2005, Nassau County issued a tax lien to appellant Gillen Living Trust, doing business as Jumbo Investments, for $67,596.67. Because of a delay in recording the prior subdivision and sale of part of RTF’s property to Roslyn Gate, the tax lien was on the entire parcel of land. That is, both RTF’s and Roslyn Gate’s lots were subject to the tax lien.

Thomas Gillen, as trustee of the Gillen Living Trust, served a notice to redeem the tax lien on Kese, Roslyn Gate, RTF and others in November 2006. However, it is uncontested that Gillen did not serve either Kese’s foreclosure attorney or the foreclosure referee. Neither Kese nor Roslyn Gate exercised their right to redeem the property from the tax lien. Consequently, Nassau County issued a tax deed to Gillen, who then transferred ownership of the entire parcel of land to Siat Foundation by quitclaim deed for $444,000. Siat Foundation is a charitable organization affiliated with RTF that allowed RTF to continue operating its school and synagogue.

Kese and Roslyn Gate commenced this hybrid action/CPLR article 78 proceeding in June 2007 seeking an order (1) enjoining Siat from transferring the tax deed, (2) declaring the conveyance of the tax deed void, (3) declaring the tax deed void because Gillen did not adhere to the notice requirements of the Nassau County Administrative Code, (4) declaring the tax deed void because no taxes were due, (5) declaring that any real estate taxes owed be allocated to each of the lots separately and not as a single parcel, (6) declaring the sale of the original tax lien void, (7) directing the Nassau County Treasurer to rescind the tax deed, and (8) directing the Nassau County Treasurer to allow petitioners to redeem the tax lien.

Finding for Kese and Roslyn Gate, Supreme Court (1) voided and vacated the tax deed issued to Gillen, (2) vacated the quitclaim deed Gillen transferred to Siat because the notice to redeem was defective, (3) denied Gillen’s motion seeking to dismiss the petition, (4) denied Kese’s application for a tax exemption and other tax relief on the subject property because the time to apply for this relief had expired, and (5) held that Kese or Roslyn Gate or both might redeem the tax liens by paying any or all taxes determined to be due. (2007 NY Slip Op 34121DJ] [2007].)

Supreme Court relied on Second Department precedent holding that section 5-51.0 of the Nassau County Administrative Code requires notice to be served on “legal representatives,” which include a mortgagee’s foreclosure attorney (see Matter of Hua Nan Commercial Bank v Albicocco, 270 AD2d 265 [2000]). The tax lien was found to be void inasmuch as Gillen did not serve Kese’s attorney. The Appellate Division affirmed, finding the case controlled by Hua Nan. Accordingly, the Court ruled that “the law firm was a legal representative of a party entitled to notice” (62 AD3d 880, 881 [2d Dept 2009]). The Court did not reach the question of whether Gillen had complied with the other requirements of the notice provision, specifically whether Gillen was also obligated to serve the court-appointed referee in the foreclosure action.

Although the Second Department adhered to its own recent precedent in Hua Nan, the outcome is predicated on a flawed construction of Nassau County Administrative Code § 5-51.0 (a), which provides:

“The holder of any tax lien which is not satisfied, shall give notice to the occupant, owner in fee, trustee, mortgagee, judgment creditor or purchaser at any other county tax sale of a tax lien affecting the same property, and the heirs, legal representatives and assigns of any or either of them . . . and any other person having a lien, claim or Interest appearing of record on the premises affected by such sale. The words ‘appearing on record’ shall be construed to refer to any person on whom a notice is hereby required to be served, the nature and degree of whose Interest appears from the records kept by the County Clerk, County Treasurer, Surrogate of the County and receiver of taxes for the town or city in which the property is located” (emphasis added).

A legal representative is, in the ordinary sense, one “who manages the legal affairs of another because of incapacity or death” (see Black’s Law Dictionary 1416-1417 [9th ed 2009]). Whereas an attorney of record is an agent of a party of interest, a legal representative is not an agent, but a principal who has been assigned the rights and obligations of the party.

Consistent with this definition, this Court, going back to the late 1800s, has held “the words ‘legal representatives’ mean ordinarily executors or administrators, and that meaning will be attributed to them in any instance unless there be facts existing which show that the words were not used in their ordinary sense, but to denote some other and different idea” (Sulz v Mutual Reserve Fund Life Assn., 145 NY 563, 574 [1895]; see also Griswold v Sawyer, 125 NY 411, 413 [1891]; Matthews v American Cent. Ins. Co., 154 NY 449, 462-463 [1897]). Even in the rare instances where the term has been found to signify something other than “executors or administrators,” the meaning has not extended to a party’s attorneys (see e.g. Greenwood v Holbrook, 111 NY 465, 471 [1888] [holding that in a certain agreement, “the phrase ‘legal representatives’ relates to children or descendants, and not executors or administrators”]).

This definition of “legal representative” corresponds with the case law of virtually every other state and federal court that has defined the term (see e.g. Briggs v Walker, 171 US 466, 471 [1898]; Commissioner of Corps. & Taxation v Second Natl. Bank of Boston, 308 Mass 1, 8, 30 NE2d 889, 894 [1941]; Warnecke v Lembca, 71 111 91, 92 [1873]; McMahan v Greenwood, 108 SW3d 467, 487 [Tex Ct App 2003]). The phrase “legal representatives” also appears in the Federal Rules of Civil Procedure. In that context, the federal courts have consistently interpreted the meaning to exclude attorneys qua attorneys (see e.g. Western Steel Erection Co. v United States, 424 F2d 737, 739 [10th Cir 1970] [holding that “an attorney does not have standing to move under (Federal Rules of Civil Procedure) rule 60(b) as a ‘legal representative’ ” because “(a) ‘legal representative’ under the rule is one who by operation of law is tantamount to a party in relationship to the matter involved in the principal action”]; see also Rende v Kay, 415 F2d 983, 985 [DC Cir 1969] [“Although the attorney for the defendant was retained to ‘represent’ the deceased as his counsel, he is not a person who could be made a party, and is not a ‘representative of the deceased party’ in the sense contemplated by (Federal Rules of Civil Procedure rule) 25(a)(1)”]). Indeed, the only case other than Hua Nan that sustains the position that a legal representative may be a party’s attorney suggests that attorney is not the ordinary meaning of the term (see Regents of Univ. of New Mexico v Lacey, 107 NM 742, 744, 764 P2d 873, 875 [1988] [“In considering the ordinary and usual meaning of the words used in this statute, an interpretation that an attorney may be a legal representative is not unreasonable”]).

Moreover, the structure of the Nassau County Administrative Code itself compels the conclusion that the term “legal representatives” does not comprehend a foreclosure attorney. Section 5-51.0 (a) requires that notice be given to “the occupant, owner in fee, trustee, mortgagee, judgment creditor or purchaser . . . and the heirs, legal representatives and assigns of any or either of them.” Guided by the familiar canon of construction of noscitur a sociis, we ordinarily interpret the meaning of an ambiguous word in relation to the meanings of adjacent words (see McKinney’s Cons Laws of NY, Book 1, Statutes § 239 [“words employed in a statute are construed in connection with, and their meaning is ascertained by reference to the words and phrases with which they are associated”]; see e.g. Aikin v Wasson, 24 NY 482, 484 [1862]). So construed, the term “legal representatives,” defined as “executors and administrators,” fits logically between “heirs” and “assigns,” insofar as all three groups have been assigned the rights and duties of the property owner and all are associated with Surrogate’s Court practice. By contrast, defined as attorneys of record, the term “legal representatives” shares little in common with “heirs” and “assigns.”

Finally, the presence of the term “attorney” in other related sections of the Nassau County Administrative Code suggests that the county legislature would have specified “attorneys” and not “legal representatives” in section 5-51.0 (a) if notice upon the attorney/agent were intended (see e.g. Nassau County Administrative Code § 5-51.0 [e] [“The County Treasurer, upon receiving a copy of such notice, together with an affidavit by the holder or his attorney or agent that service has been properly made” (emphasis added)]). We therefore conclude that the tax deed should not have been voided on the basis of the tax lien purchaser’s failure to serve the mortgagee’s foreclosure attorney with notice of redemption.

Petitioners-respondents also contend that the court-assigned referee in a foreclosure proceeding is a party of interest entitled to notice. As relevant, section 5-51.0 (a) requires that notice be served upon “any other person having a lien, claim or Interest appearing of record on the premises affected by such sale.” Respondents claim that Gillen’s failure to serve the assigned referee voided Gillen’s tax deed. We reject this interpretation. As described in CPLR 4301, a “referee to determine an issue or to perform an act shall have all the powers of a court in performing a like function.” In other words, the referee is an agent of the court who performs ministerial duties in place of a judge. The referee has no greater a legal interest in the property than the judge for whom he or she acts. Although the referee is obligated to pay taxes on the property, this duty derives only from the referee’s ministerial role as a conduit for the transfer of ownership of the property and not from the referee’s own pecuniary or proprietary interest.

Notwithstanding the earlier Appellate Division precedent to the contrary, case law and statutory analysis counsel that the legislative purpose of requiring service upon a “legal representative” is to ensure that personal representatives, namely executors or administrators of an estate, are notified of a risk of divestiture of title to their property. Because appellant Thomas Gillen, trustee of Gillen Living Trust, complied with section 5-51.0 of the Nassau County Administrative Code, we find the notice to redeem properly served and remit for farther proceedings, including the resolution of the status of the tax deed.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the case remitted to Supreme Court for further proceedings in accordance with this opinion.

Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.

Order reversed, etc.


author: Graffeo, J.

text:
    [938 NE2d 989, 912 NYS2d 556]
    The People of the State of New York, Appellant, v Dragan Boscic, Respondent.
    Argued October 14, 2010;
    decided November 17, 2010

      POINTS OF COUNSEL

      James R. Farrell, District Attorney, Monticello (Bonnie M. Mitzner, Scott Russell and Meagan Galligan of counsel), for appellant.
    I. County Court erred in holding that the breath result was not admissible, which resulted in a reversal of the trial court’s decision. (People v Todd, 38 NY2d 755; People v Corley, 124 AD2d 390; People v Freeland, 68 NY2d 699; People v Dargento, 302 AD2d 924; People v English, 103 AD2d 979; People v Mickle, 187 Misc 2d 718; People v Pompilio, 137 Misc 2d 997; People v Manino, 147 AD2d 926; People v Hampe, 181 AD2d 238, 80 NY2d 930.) II. County Court improperly considered material not part of the trial court’s record on appeal when reversing the trial court’s decision. (People v Hampe, 181 AD2d 238, 80 NY2d 930; People v English, 103 AD2d 979; People v Todd, 38 NY2d 755; Broida v Bancroft, 103 AD2d 88; People v Gomez, 255 AD2d 246, 93 NY2d 873; People ex rel. Martinez v Walters, 99 AD2d 476, 63 NY2d 727; People v Hoppe, 239 AD2d 777, 91 NY2d 973.)

      Joel M. Proyect, Parksville, for respondent.
    I. The trial court erred in admitting the breath test result. (People v Todd, 38 NY2d 755; People v English, 103 AD2d 979; People v Dargento, 302 AD2d 924; Chiasson v New York City Dept. of Consumer Affairs, 138 Misc 2d 394; Peasley v State of New York, 102 Misc 2d 982; People v Palumbo, 79 AD2d 518.) II. If this Court did not establish the “six-month rule” in People v Todd (38 NY2d 755 [1975]), it should, do so now. (People v English, 103 AD2d 979; People v Dargento, 302 AD2d 924.) III. The trial court erred in accepting the breathalyzer reading as .07% beyond a reasonable doubt. IV The People did not meet their burden of proof by the use of the testimony of Constable McCarthy alone.

      Gerstenzang, O’Hern, Hickey, Sills & Gerstenzang, Albany (Eric H. Sills of counsel), for New York State Defenders Association, amicus curiae.
    The Court should adhere to its prior decision in People v Todd (38 NY2d 755 [1975]). (People v Free-land, 68 NY2d 699; People v Meikrantz, 77 Misc 2d 892; People v Todd, 79 Misc 2d 630; People v Mertz, 68 NY2d 136; People v Dargento, 302 AD2d 924; People v Sawinski, 148 AD2d 888; People v Manino, 147 AD2d 926; People v English, 103 AD2d 979; People v Pompilio, 137 Misc 2d 997; People v DeMarasse, 85 NY2d 842.)
   OPINION OF THE COURT

Graffeo, J.

In this case, we consider whether our decision in People v Todd (38 NY2d 755 [1975]) adopted a standard requiring that breath-alcohol detection devices must be calibrated at least every six months in order for the test results to be admissible at trial. We hold that there is no per se, six-month rule and that the People must instead lay a foundation demonstrating that the particular device used was in proper working order when the test was administered.

On November 3, 2007, Constable McCarthy of the Town of Bethel police force observed a minivan parked on the side of a road directly underneath a “no standing” sign. A few minutes later, McCarthy saw defendant Dragan Boscic walk from a nearby convenience store and get into the minivan. As defendant started to drive the minivan forward, McCarthy pulled the police car in front of it and exited the vehicle.

According to McCarthy, when he approached the minivan, he smelled alcohol on defendant’s breath, saw that his eyes were glassy and bloodshot, and noticed that his speech was slightly slurred. McCarthy asked defendant if he had consumed alcohol and defendant admitted to drinking three beers. McCarthy then requested that defendant perform five field sobriety tests. After defendant’s poor performance on some of these tests, he was arrested for suspicion of drunk driving. Later, at the Sullivan County Sheriff’s Office, McCarthy used a breath-alcohol machine—the BAG DataMaster—to test defendant. The device issued a reading indicating that defendant’s blood alcohol level was .07%. Defendant was charged with violating Vehicle and Traffic Law § 1192 (1)—driving while ability impaired by the consumption of alcohol.

During the bench trial in Bethel Justice Court, the People sought to introduce, through the testimony of Constable McCarthy, the results of the breath-alcohol test. As part of the foundation presented in support of the admissibility of the test results, the People offered a police record certifying that the DataMaster had been calibrated (i.e., checked and adjusted by a trained technician) by an employee of the State Division of Criminal Justice Services on April 6, 2007—approximately six months and three weeks before the test was administered to defendant. Defense counsel argued against admission of the test results on the basis that the People failed to lay an adequate foundation, asserting that People v Todd (38 NY2d 755 [1975]) required that breathalyzer machines must be calibrated at least every six months and the calibration in this case was untimely. Justice Court rejected that contention and concluded that the People demonstrated that the DataMaster device was working properly at the time defendant was tested. Defendant was found guilty as charged.

On appeal, Sullivan County Court reversed and dismissed the accusatory instrument (24 Misc 3d 1227[A], 2009 NY Slip Op 51649DJ] [2009]). The court interpreted Todd as creating a six-month calibration rule and therefore held that the DataMaster results were inadmissible because the device had not been calibrated within six months of defendant’s arrest. County Court also ruled that, without the breath-alcohol test results, McCarthy’s trial testimony was insufficient as a matter of law to prove defendant’s guilt beyond a reasonable doubt. A Judge of this Court granted the People leave to appeal (13 NY3d 937 [2010]) and we now reverse.

Breath-alcohol detection machines have long been considered scientifically reliable, but it remains necessary for the proponent of breath-alcohol test evidence to establish an adequate evidentiary foundation for the admission into evidence of the results of the test (see e.g. People v Mertz, 68 NY2d 136, 148 [1986]). The issue here is whether, as a predicate to the admissibility of this evidence, there needed to be proof that the instrument used to test defendant had been calibrated during the past six months. Defendant claims that People v Todd (38 NY2d 755 [1975]) established a six-month calibration requirement that was not met here. Although Todd is susceptible to such an interpretation, we do not read it in such a rigid manner.

The trial evidence in Todd indicated that the breathalyzer machine “was constantly left on at the [state police] barracks and never turned off,” and had been calibrated more than six months before it was utilized to test the defendant (79 Misc 2d 630, 633 [County Ct, Delaware County 1974]). The intermediate appellate court believed that those “two factors taken together raise[d] a reasonable doubt . . . as to the reliability of that particular machine” (id.). We agreed in a memorandum decision, explaining that “[t]he People failed to establish that the breathalyzer apparatus had been timely calibrated” and that “[i]t was incumbent upon the District Attorney to show that the machine was in proper working order” (38 NY2d at 756). Our decision was necessarily premised on both of these interrelated circumstances—a breathalyzer device that had never been deactivated and, in light of its continuous operation, had not been recently calibrated. Thus, Todd did not explicitly articulate a six-month standard or allude to a specific calibration time frame.

We have not relied on a six-month, bright-line rule in subsequent cases that dealt with the foundation requirements for breath-alcohol evidence. Rather than applying a specific temporal limitation, our post-Todd decisions have repeatedly emphasized that the applicable principle is whether the detection instrument was in “proper working order” at the time a test was administered (People v Gower, 42 NY2d 117, 120 [1977]; People v Freeland, 68 NY2d 699, 700 [1986]; People v Kinne, 71 NY2d 879, 880 [1988]; see People v Alvarez, 70 NY2d 375, 380 [1987]; People v Mertz, 68 NY2d at 148). The Third and Fourth Departments have interpreted our precedent similarly and rejected the notion that it is impossible for a breath-alcohol device to function properly simply because it has not been calibrated for six months (see e.g. People v Dargento, 302 AD2d 924 [4th Dept 2003]; People v Manino, 147 AD2d 926 [4th Dept 1989]; People v English, 103 AD2d 979, 980 n * [3d Dept 1984]). We concur with that view and therefore hold that such evidence is admissible if the People demonstrate that the machine was in proper working order at the time it issued the test results in question.

Todd was decided almost 35 years ago and in the ensuing decades, scientific knowledge has advanced dramatically, leading to significant technological changes in breath-alcohol detection devices. The scientific methods incorporated in modern-day breath testing instruments are substantially different from the earlier generations of these devices. For instance, in 1975 when Todd was decided, the prevalent scientific process for breath-alcohol analysis involved chemical oxidation, wherein a breath sample was passed through an ampule containing a chemical mixture (usually potassium dichromate in sulfuric acid). The degree of ethanol content in the breath stimulated changes in the absorption abilities of the solution that could be detected by transmitting light through the sample. Results were then compared with an unreacted sample of the solution to achieve a blood-alcohol concentration reading (see Faigman et al., 5 Modern Scientific Evidence: The Law and Science of Expert Testimony § 41:55; 2 Giannelli and Imwinkelried, Scientific Evidence § 22.03 [b], at 380 [4th ed]). More recent technology relies on infrared absorption spectrometry. This technology— which is used in the BAG DataMaster—calculates blood-alcohol concentration by passing infrared light through a chamber holding the breath sample to gauge the absorption rate of “infrared radiation at specific wavelengths” (Faigman et al., 5 Modern Scientific Evidence: The Law and Science of Expert Testimony § 41:52; see 2 Giannelli and Imwinkelried, Scientific Evidence § 22.03 [b], at 389 [4th ed]; Rose, New York Vehicle and Traffic Law § 35:21 [2d ed]). Given the technological advances that have occurred and will continue to evolve, paired with the proliferation of available breath-alcohol detection devices approved for use by the New York State Department of Health (DOH) (see 10 NYCRR 59.4), we do not believe that a court-imposed calibration timing rule for all current technologies would be helpful in achieving the primary objective, which is to provide the factfinder a basis to determine whether the particular instrument used produced reliable results in a specific instance. Even if we had articulated a bright-line calibration rule more than three decades ago, the changes in scientific testing methods would have provided reason to revisit it.

It further bears noting that both parties to this litigation recognize that DOH has been charged by the Legislature to evaluate and approve specific models of breath-alcohol testing machines (see Vehicle and Traffic Law § 1194 [4] [c]). In its regulatory capacity, DOH has determined that such instruments must be calibrated “at a frequency as recommended by the device manufacturer” but not less than once a year (10 NYCRR 59.4 [c] [eff Apr. 23, 2010, as amended July 22, 2010]). The promulgation of these regulations will, for arrests occurring after the effective date of the regulations, provide courts with information regarding recommended calibration intervals, not to exceed one year, when assessing the adequacy of foundation requirements for the admissibility of breath-alcohol test results. But here, there is no question that section 59.4 (c) of the regulations—the provision addressing calibration standards—was not effective at the time of defendant’s arrest, and the People do not assert that this regulation supplies the applicable standard in this case.

We therefore rely on our holding that there has been no strict six-month calibration rule pronounced by this Court for breath testing evidence. Our conclusion does not mean that appropriate and adequate calibration procedures can be disregarded by law enforcement. Rather, the admissibility of breath-alcohol analysis results remains premised on the People’s ability to demonstrate, among other requirements, that the device was in “proper working order” when it was used to test an accused (People v Freeland, 68 NY2d at 700). And nothing prevents an accused from seeking to introduce relevant evidence that may affect other foundational issues or the weight that should be given to results generated by a particular device, as defendant attempted during his trial. In this case, the certificate in evidence attesting that the last calibration occurred slightly more than six months prior to defendant’s arrest was a sufficient predicate as part of the proper foundation to receive the Data-Master results in evidence because it adequately assured that the instrument was capable of producing accurate information when defendant was tested. Consequently, Justice Court did not err as a matter of law in concluding that the DataMaster results could be considered during the trial. We therefore remit to County Court for consideration of whether the trial evidence, including the DataMaster results, was legally sufficient and, if necessary, whether the weight of the evidence supported the conviction.

Accordingly, the order of County Court should be reversed and the case remitted to that court for further proceedings in accordance with this opinion.

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

Order reversed, etc.

       DOH currently lists about 100 different models of breath-alcohol testing devices (including the DataMaster) that are approved for use by law enforcement agencies (see 10 NYCRR 59.4 [b]).


text:
    [940 NE2d 551, 914 NYS2d 725]
    Judith Nostrom, Individually and as Personal Representative of the Estate of Donald Nostrom, Deceased, Appellant, v A.W. Chesterton Company et al., Defendants, and Central Hudson Gas & Electric Corporation et al., Respondents.
    Argued October 12, 2010;
    decided November 18, 2010

      POINTS OF COUNSEL

      Weitz & Luxenberg, P.C., New York City (Alani Golanski of counsel), for appellant.
    Industrial Code (12 NYCRR) part 12, like part 23, contains specific and concrete construction-related provisions, the violation of which triggers Labor Law § 241 (6) accountability. (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343; Misicki v Caradonna, 12 NY3d 511; Ferreira v Village of Kings Point, 68 AD3d 1048; Cammon v City of New York, 21 AD3d 196; Husak v 45th Ave. Hous. Co., 52 AD3d 782; Osorio v Kenart Realty, Inc., 35 AD3d 561; Piazza v Frank L. Ciminelli Constr. Co., Inc., 2 AD3d 1345; Rivera v Ambassador Fuel & Oil Burner Corp., 45 AD3d 275; Creamer v Amsterdam High School, 241 AD2d 589; Long v ForestFehlhaber, 55 NY2d 154.)

      Landman Corsi Ballaine & Ford, P.C., New York City (William G. Ballaine and Erin Glover-Frey of counsel), for Sequoia Ventures, Inc., respondent.
    I. The Industrial Code (12 NYCRR) part 12 regulations were not promulgated pursuant to Labor Law § 241 (6) and cannot, standing alone, support plaintiffs section 241 (6) vicarious liability claim against Bechtel Corporation, as a nonemployer general contractor. (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Rufo v Orlando, 309 NY 345; Komar v Dun & Bradstreet Co., Inc., 284 App Div 538; Campuzano v Board of Educ. of City of N.Y., 54 AD3d 268; Akins v Baker, 247 AD2d 562; Rothschild v Faber Homes, 247 AD2d 889; Colucci v Equitable Life Assur. Socy. of U.S., 218 AD2d 513; Rosen v McGuire & Bennett, 189 AD2d 966; Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343; Affri v Basch, 13 NY3d 592.) II. The Industrial Code (12 NYCRR) part 12 regulations relied upon by plaintiffs are not sufficiently specific and concrete to support plaintiffs Labor Law § 241 (6) vicarious liability claim against Bechtel Corporation, as a nonemployer general contractor. (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Misicki v Caradonna, 12 NY3d 511; Piazza v Frank L. Ciminelli Constr. Co., Inc., 2 AD3d 1345; Osorio v Kenart Realty, Inc., 35 AD3d 561.)

      Davis Polk & War dwell LLP, New York City (Guy Miller Struve and Lesley Bark of counsel), and Richard W. Babinecz, Andrew J. Czerepak and Timothy M. McCann for Orange & Rockland Utilities, Inc., respondent.
    I. Except insofar as it is expressly incorporated by part 23 of the Industrial Code (12 NYCRR), part 12 of the Industrial Code does not impose liability upon owners and general contractors pursuant to section 241 (6) of the Labor Law. (Matter of ATM One v Landaverde, 2 NY3d 472; Majewski v Broadalbin-Perth Cent. School Disk, 91 NY2d 577; Tompkins v Hunter, 149 NY 117; City Bank Farmers Trust Co. v Ardlea Incorporation, 267 NY 224; Matter of Albano v Kirby, 36 NY2d 526; Matter of Amorosi v South Colonie Ind. Cent. School Dist., 9 NY3d 367; Morales v County of Nassau, 94 NY2d 218; Thoreson v Penthouse Intl., 80 NY2d 490; Conte v Large Scale Dev. Corp., 10 NY2d 20; Matter of Thomas v Bethlehem Steel Corp., 63 NY2d 150.) II. In the alternative, on the facts of this case, the provisions of part 12 of the Industrial Code (12 NYCRR) relied upon by plaintiff are insufficiently specific to support a cause of action under Labor Law § 241 (6). (Misicki v Caradonna, 12 NY3d 511; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Piazza v Frank L. Ciminelli Constr. Co., Inc., 2 AD3d 1345.)

      Thompson Hine LLP, New York City (Joseph B. Koczko, Robert T Barnard and Ruthe A. Nepf of counsel), for Central Hudson Gas & Electric Corp., respondent.
    I. The court below correctly ruled that a cause of action under section 241 (6) of the Labor Law must allege a violation of the implementing regulations contained in part 23 of the Industrial Code (12 NYCRR). (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Naso v Wates & Co., 21 AD2d 679, 15 NY2d 667; Wallach v United States, 291 F2d 69; Rivera v Ambassador Fuel & Oil Burner Corp., 45 AD3d 275; Mazzocchi v International Bus. Machs., 294 AD2d 151; Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343; Misicki v Caradonna, 12 NY3d 511; Rangolan v County of Nassau, 96 NY2d 42; Cohen v Lord, Day & Lord, 75 NY2d 95; Matter of Garzilli v Mills, 250 AD2d 131.) II. The case law provides scant support for plaintiff’s theories. (Creamer v Amsterdam High School, 241 AD2d 589; Kaczmarek v Bethlehem Steel Corp., 884 F Supp 768; Vernieri v Empire Realty Co., 219 AD2d 593; Rothschild v Faber Homes, 247 AD2d 889; Mazzocchi v International Bus. Machs., 294 AD2d 151; Colucci v Equitable Life Assur. Socy. of U.S., 218 AD2d 513; Piazza v Frank L. Ciminelli Constr. Co., Inc., 2 AD3d 1345; Pellescki v City of Rochester, 198 AD2d 762; DaBolt v Bethlehem Steel Corp., 92 AD2d 70.) III. The Industrial Code (12 NYCRR) part 12 regulations upon which plaintiff relies are not sufficiently specific to support a Labor Law § 241 (6) cause of action. (Ross v Curtis-Palmer HydroElec. Co., 81 NY2d 494; Desharnais v Jefferson Concrete Co., Inc., 35 AD3d 1059.)
   OPINION OF THE COURT

Graffeo, J.

The issue before us is whether vicarious liability under Labor Law § 241 (6) may be predicated solely on a violation of regulations contained in part 12 of the Industrial Code. We conclude that it may not.

During the 1970s and 1980s, decedent Donald Nostrom worked as a boilermaker for subcontractors on construction projects at various energy facilities, including those owned by defendants Orange & Rockland Utilities, Inc. (O&R) and Central Hudson Gas & Electric Corp. According to Nostrom, defendant Sequoia Ventures, Inc., formerly known as Bechtel Corporation, served as the general contractor for two of the projects. While working at these power plants, Nostrom was allegedly exposed to asbestos through airborne dust and contact with asbestos-containing materials. He subsequently contracted mesothelioma.

Nostrom and his wife, suing derivatively, commenced this action against more than 60 defendants, including O&R, Central Hudson and Sequoia. As relevant here, Nostrom asserted a Labor Law § 200 claim against Central Hudson and a violation of Labor Law § 241 (6) against each of the three defendants involved in this appeal. The section 241 (6) claim was premised on violations of Industrial Code (12 NYCRR) part 12 regulations, which require the prevention of air contamination (12 NYCRR 12-1.4 [b] [3], [4]) and the removal of dangerous air contaminants (12 NYCRR 12-1.6 [a]). After discovery, defendants separately moved for summary judgment dismissing the complaint.

Supreme Court granted the motions and dismissed the complaint insofar as asserted against defendants. Nostrom appealed the dismissal of the Labor Law § 241 (6) cause of action and the Appellate Division affirmed, reasoning that a violation of regulations from part 12 of the Industrial Code cannot sustain a section 241 (6) claim (59 AD3d 159 [1st Dept 2009]). Alternatively, the Appellate Division concluded that the two regulations invoked by Nostrom were not “sufficiently specific to support a section 241 (6) claim for asbestos-related injury” (id. at 160). We granted Nostrom leave to appeal (13 NY3d 880 [2009]).

Because defendants did not direct or control decedent’s work, they can be liable only if Labor Law § 241 (6) applies, imposing vicarious liability on owners and contractors for the conduct of others. Section 241 (6) provides:

“All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith.”

The second sentence of this provision, requiring owners and contractors to comply with the Commissioner of Labor’s rules, creates a nondelegable duty “where the regulation in question contains a specific, positive command” (Morris v Pavarini Constr., 9 NY3d 47, 50 [2007] [internal quotation marks and citation omitted]). At issue is whether the section 241 (6) claim in this case may be based on the violation of Industrial Code part 12 regulations pertaining to the control of air contaminants in the workplace.

Nostrom argues that sufficiently specific regulations are set forth in part 12 of the Industrial Code and, like those found in part 23, these may be invoked to impose vicarious liability under Labor Law § 241 (6). Consequently, she asserts that O&R and Central Hudson, as owners, and Sequoia, as a general contractor, may be held liable for the alleged failures of various subcontractors to comply with sections 12-1.4 (b) and 12-1.6 (a) of the Code. Defendants respond that the Appellate Division correctly held that the relevant language and history underlying these regulations demonstrate that part 12 cannot support vicarious liability except to the extent that part 12 regulations are specifically incorporated into part 23.

In matters of statutory and regulatory interpretation, “legislative intent is the great and controlling principle, and the proper judicial function is to discern and apply the will of the [enactors]” (Matter of ATM One v Landaverde, 2 NY3d 472, 477 [2004] [internal quotation marks and citation omitted]). As we have noted, the text of a provision is the clearest indicator of the enactors’ intent, “and courts should construe unambiguous language to give effect to its plain meaning” (Matter of DaimlerChrysler Corp. v Spitzer, 7 NY3d 653, 660 [2006]). Additionally, inquiry should be made into “the spirit and purpose of the legislation, which requires examination of the statutory context of the provision as well as its legislative history” (Landaverde, 2 NY3d at 477 [internal quotation marks and citation omitted]).

Part 23 of the Industrial Code governs the protection of workers in construction, demolition and excavation operations. Its “Application” provision expressly states that the rules in part 23 apply to “owners, contractors and their agents obligated by the Labor Law to provide such persons with safe working conditions and safe places to work” (12 NYCRR 23-1.3). Hence, it is clear that part 23 was promulgated pursuant to the authority granted by Labor Law § 241 (6) and that owners and contractors may be vicariously liable based on violations of part 23 regulations. In contrast, the “Application” section of part 12 does not specify that its rules apply to owners, contractors and their agents (12 NYCRR 12-1.2). The absence of such wording suggests that part 12 was not created to give effect to the provisions of section 241 (6) and indicates an intent not to impose vicarious liability in connection with part 12 regulations.

Furthermore, the language of 12 NYCRR 23-1.7 (g) confirms that part 12 regulations, by themselves, were not intended to serve as a predicate for liability under Labor Law § 241 (6). Section 23-1.7 (g) makes any “unventilated confined area” where dangerous air contaminants may be present subject to the provisions of part 12. By incorporating the requirements of part 12 into this narrow subset of work sites governed by part 23— unventilated confined areas—it is evident that the intent was to impose a nondelegable duty on owners and contractors in these limited circumstances. Consequently, a plaintiff may bring a section 241 (6) claim based on a violation of a part 12 rule only where the injury occurred in an unventilated confined area, thereby triggering section 23-1.7 (g)’s “pass-through” provision (see Rivera v Ambassador Fuel & Oil Burner Corp., 45 AD3d 275 [1st Dept 2007]). Accepting Nostrom’s position that vicarious liability may be grounded on a part 12 violation regardless of the location of the exposure would render section 23-1.7 (g) superfluous. And a construction that “renders one part meaningless should be avoided” (Rocovich v Consolidated Edison Co., 78 NY2d 509, 515 [1991]).

Our conclusion that part 12 does not impose liability on owners and contractors under Labor Law § 241 (6), except insofar as it is expressly incorporated into part 23, is consistent with the regulatory history underlying the two parts. Industrial Code Bulletin No. 23, part 23’s predecessor, was adopted by the State Industrial Commission in 1920. In 1941, the Board of Standards and Appeals replaced the original regulations with a new rule 23, specifically referencing the rule-mating authority vested in the Board by Labor Law § 241. The Board again invoked section 241 when it amended part 23 in 1963. Although the Board did not refer to section 241 when it completed its most recent substantive changes to part 23 in 1972, it is clear that part 23 continues to implement the authority granted by the Legislature under section 241 (6) because it explicitly applies to owners, contractors and their agents (see 12 NYCRR 23-1.3). On the other hand, although part 12’s predecessor was redesignated as part 12 in 1954 and was thereafter substantially revised in 1956, 1961 and 1971, the Board did not cite section 241 as a basis for these enactments.

In short, the language and history of the relevant provisions establish that part 12 regulations do not provide a basis for liability under Labor Law § 241 (6) except to the extent that particular regulations are specifically incorporated into part 23. As a result, the Appellate Division correctly affirmed the dismissal of Nostrom’s section 241 (6) claim, which was predicated solely on alleged violations of 12 NYCRR 12-1.4 (b) and 12-1.6 (a). We therefore need not reach the Appellate Division’s alternative holding that the regulations in question are not specific enough to permit recovery under section 241 (6) for an asbestos-related injury.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be affirmed, with costs.

Judges Ciparick, Smith, Pigott and Jones concur; Chief Judge Lippman and Judge Read taking no part.

Order, insofar as appealed from, affirmed, with costs.

      . The other defendants include asbestos manufacturers and distributors. The claims against them are not before us.

      . Donald Nostrom died during the pendency of this litigation. His wife, Judith Nostrom, pursues this action as the personal representative of his estate.

      . We dismissed the motion for leave to appeal insofar as it sought leave to appeal against Consolidated Edison Company of New York, Inc. upon the basis that as to that party, the order did not finally determine the action within the meaning of the Constitution.

      . Every Labor Law § 241 (6) case resolved by this Court in recent history has involved a part 23 regulation (see e.g. Misicki v Caradonna, 12 NY3d 511 [2009] [12 NYCRR 23-9.2 (a)]; Morris v Pavarini Constr., 9 NY3d 47 [2007] [12 NYCRR 23-2.2 (a)]; Nagel v D & R Realty Corp., 99 NY2d 98 [2002] [12 NYCRR 23-1.7 (d)]; Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343 [1998] [12 NYCRR 23-1.7 (d)]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 [1993] [12 NYCRR 23-1.25 (d)]; Long v Forest-Fehlhaber, 55 NY2d 154 [1982], rearg denied 56 NY2d 805 [1982] [12 NYCRR 23-1.30]).

      . Nostrom does not rely on 12 NYCRR 23-1.7 (g), presumably because decedent was not working in unventilated confined areas when he was exposed to asbestos.


author: Read, J.

text:
    [940 NE2d 547, 914 NYS2d 721]
    The People of the State of New York, Respondent, v Mordekhay Levy, Appellant.
    Argued October 19, 2010;
    decided November 18, 2010

      POINTS OF COUNSEL

      Stillman, Friedman & Shechtman, P.C., New York City (Nathaniel Z. Marmur and Paul Shechtman of counsel), for appellant.
    I. The trademark registration must cover the goods offered for sale. (People v Dione, 25 Misc 3d 127[A], 2009 NY Slip Op 52056[U]; People v Guo Zhang, 14 Misc 3d 82; People v Reyes, 9 Misc 3d 136[A], 2005 NY Slip Op 51699[U]; People v Lynch, 8 Misc 3d 126[A], 2005 NY Slip Op 50894[U]; People v Yue Lin, 11 Misc 3d 1091[A], 2006 NY Slip Op 50821[U]; People v Thiam, 189 Misc 2d 810; People v Jobe, 20 Misc 3d 1114[A], 2008 NY Slip Op 51346[U]; Torres v Cantine Torresella S.r.l., 808 F2d 46; People v Wangdu, 20 Misc 3d 1132[A], 2008 NY Slip Op 51709DJ]; United States v Giles, 213 F3d 1247.) II. The trial court did not properly instruct the jury. (U.S. Structures, Inc. v J.P. Structures, Inc., 130 F3d 1185; People v Flynn, 79 NY2d 879; People v Ford, 11 NY3d 875; People v Brown, 278 AD2d 177; People v Daly, 244 NY 278; People v Watts, 57 NY2d 299; People v Haddock, 48 AD3d 969.)

      Richard A. Brown, District Attorney, Kew Gardens (Edward D. Saslaw and John M. Castellano of counsel), for respondent.
    The evidence supporting defendant’s conviction was legally sufficient under the trademark counterfeiting statute, and the court properly instructed the jury as to the elements of that crime. (S.C. Johnson & Son v Johnson, 175 F2d 176; Steele v Bulova Watch Co., 344 US 280; Two Pesos, Inc. v Taco Cabana, Inc., 505 US 763; People v Hawkins, 11 NY3d 484; People v Gray, 86 NY2d 10; People v Hines, 97 NY2d 56; People v Ford, 66 NY2d 428; People v Cona, 49 NY2d 26; People v Smith, 79 NY2d 309; People v Finley, 10 NY3d 647.)
   OPINION OF THE COURT

Read, J.

In October 2004, police executed a search warrant against Black & Yellow Major Auto Parts, a business owned by defendant Mordekhay Levy, to find and seize counterfeit parts for Ford vehicles. The search, which was conducted by a detective and a brand-protection employee from Ford, turned up a variety of allegedly counterfeit parts, which were immediately seized.

Roughly at the same time, Ford filed suit against Levy for trademark infringement arising from the sale of counterfeit parts, and the court issued a temporary restraining order. In November 2004, at the invitation of Levy’s attorney, the brand-protection employee and Ford’s trademark attorneys visited Black & Yellow’s warehouse on a Friday and the following Tuesday to identify parts that were not genuine Ford parts. Following these visits, Levy entered into a stipulated preliminary injunction that prohibited him and his business from

“manufacturing, advertising,- offering for sale, selling or distributing automotive parts or any related products or services having or bearing any trademark of Ford, Ford Motor, Ford Motor Company, Ford blue oval, racing car, speeding car design, Motorcraft, Lincoln Star, or Lincoln certified or any Ford part number or any other mark or design that’s likely to cause confusion with any marks that are specifically listed in this order.”

Subsequent search warrants were issued and executed in October 2005 and July 2006, both of which resulted in the confiscation of allegedly counterfeit parts from Black & Yellow’s warehouse. As a consequence, Levy was eventually indicted and tried before a jury for second-degree trademark counterfeiting (Penal Law § 165.72). A person is guilty of this crime

“when, with the intent to deceive or defraud some other person or with the intent to evade a lawful restriction on the sale, resale, offering for sale, or distribution of goods, he or she manufactures, distributes, sells, or offers for sale goods which bear a counterfeit trademark, or possesses a trademark knowing it to be counterfeit for the purpose of affixing it to any goods, and the retail value of all such goods bearing counterfeit trademarks exceeds one thousand dollars” (id. [emphasis added]).

The People’s trial witnesses identified parts seized in the 2005 and 2006 raids as counterfeit in several ways. In some cases, the products were not manufactured by Ford (or its aftermarket brand, Motorcraft), but nevertheless bore a Ford product number; in other cases, the products bore a Ford trademark (e.g., the familiar “Ford oval”), but were tagged as fake because of their packaging. There was evidence presented to show that Levy had purchased and sold the purportedly genuine parts at less than the cost to a Ford dealer. Additionally, Ford’s chief trademark counsel testified that the trademarks alleged to be counterfeit were registered and in use. Through him, the People introduced evidence regarding 34 trademarks claimed to be in full force and effect.

After the People rested, Levy moved to dismiss on the ground that a majority of the parts—7 of the 12 parts charged in count one, and both of the parts charged in count two of the indictment—were not covered by the trademark registration certificates introduced into evidence and therefore were not “counterfeit” within the meaning of Penal Law § 165.70. The trial judge reserved decision, and Levy called three witnesses in his defense.

The first witness handled shipping and receiving for Levy’s warehouse. He testified about how he separated genuine parts from their aftermarket or off-brand counterparts. The second witness, the co-owner of a wholesale auto parts business, described the genuine “Crown Victoria” tail lights he purchased from Ford and then resold to Levy. The third witness was the former parts manager at a Lincoln-Mercury dealership authorized to sell Ford parts. He testified that Levy was his “top” customer, and that he offered him discounts “[b]ecause of the volume of parts [Levy] bought.”

After the close of evidence, Levy asked the trial judge to instruct the jury that an “intent to evade a lawful restriction” on the sale of goods under Penal Law § 165.72 required knowledge that the parts were counterfeit. The trial judge declined this request and elected to “follow the CJI”; he also denied Levy’s motion to dismiss. After charging the jury, the trial judge again considered and turned down a request from Levy for what the defense styled a “knowledge charge,” explaining that

“[t]he second element [necessarily] provides for the knowledge because you can’t intend to evade a lawful restriction without knowing what it’s all about. The knowing is part and parcel of the intention because if you didn’t know it, you couldn’t intend to evade a lawful restriction.”

He added that “the overall purpose of criminal jury instruction is to provide the law as basic and as simple as possible containing all the necessary elements.”

The jury convicted Levy of two counts of second-degree trademark counterfeiting. Levy moved to set aside the verdict on the ground that he could not be convicted for trademark counterfeiting if the trademarks in evidence did not cover the specific products allegedly counterfeited. The trial court denied the motion, and Levy was sentenced to a conditional discharge and a $10,000 fine.

The Appellate Division unanimously affirmed. The court concluded that the jury charge was proper as it closely tracked the CJI instruction and “properly conveyed to the jury the correct principles to be applied in evaluating the evidence before it” (65 AD3d 1057, 1058 [2d Dept 2009]). The Appellate Division also held that the evidence was legally sufficient to establish Levy’s guilt of trademark counterfeiting. A Judge of this Court granted leave to appeal (13 NY3d 908 [2009]), and we now affirm.

The Penal Law defines a trademark as a mark that is “registered” and “in use” which identifies and distinguishes goods from those manufactured by others (Penal Law § 165.70 [1] [a]). A “counterfeit” mark is simply a “spurious” or “imitation” mark that is used in the trafficking, sale or distribution of goods that are “identical with or substantially indistinguishable from” the genuine article (Penal Law § 165.70 [2]); and “goods” are defined as “products, services, objects, materials, devices or substances which are identified by the use of a trademark” (Penal Law § 165.70 [4]).

Levy contends that the evidence was insufficient to sustain his conviction because allegedly counterfeited goods seized from his warehouse—a hubcap cover bearing the “Lincoln Star,” for example—were not protected by a mark that was in use and registered, and which identified a good. Levy reasons that there would be no crime, for example, if someone affixed the “Ford oval” to a baseball bat: the bat is not “identical with or substantially indistinguishable from a trademark” because Ford does not use the “Ford oval” on baseball bats, and it therefore cannot be “counterfeit” within the meaning of the trademark counterfeiting statute. By parity of reasoning, the hubcap cover bearing the “Lincoln Star” cannot be counterfeit because that particular mark covers cars, structural parts, wheels, and wheel covers, but not hubcaps.

Levy’s argument is unpersuasive. As the People observe, statutory interpretation always begins with the words of the statute, and New York’s trademark counterfeiting statute is simply not on its face restricted in the way that Levy advocates. By contrast, the definition of “counterfeit” under the federal Trademark Counterfeiting Act does, in fact, reach only those instances in which the counterfeit mark is used in connection with the same goods or services as those for which the mark is registered on the Principal Register at the United States Patent and Trademark Office, and is in use (see 18 USC § 2320 [e] [1] [A] [i]-[iii] [defining “counterfeit mark” as a spurious mark “used in connection with trafficking in any goods (or) services” and “that is identical with, or substantially indistinguishable from, a mark registered . . . and in use” and “that is applied to or used in connection with the goods or services for which the mark is registered” (emphasis added)]). But the federal act was adopted in 1984 to create a criminal sanction for trademark infringement, which itself requires that the accused infringer use the mark on the same goods as those for which the mark is registered.

Nonetheless, Levy takes the position that because “[p]ortions of the definitions [in New York’s statute] were taken from then-existing federal law” (Donnino, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law § 165.70, at 312-313), we should interpret the state statute as incorporating the federal act’s identity-of-goods requirement. But if our Legislature had intended to impose such a limitation, it could have done so easily enough by enacting the relevant language of the federal act in toto. New York’s legislators obviously did not make that choice, and we decline to make it for them.

As the People point out, the Legislature’s decision not to parrot federal law in this regard and enact an identity-of-goods requirement may “reflect[ ] the understanding that the consumer relies on the mark itself and is not in a position to know or determine the precise product for which the mark is registered.” For example, assume that Ford makes brake pads for all of its cars, but that it expressly does not place the familiar “Ford oval” on those pads, and therefore does not register the “Ford oval” trademark for that purpose. If a counterfeiter places the “Ford oval” on brake pads, the use of that mark nevertheless “identifies” the good as a genuine Ford product; in fact, the lack of registration for that purpose would seem to be prima facie evidence that the product is, in fact, a counterfeit since Ford never made or even intended to make that product bearing that mark. This is precisely the kind of product that would deceive a consumer because the mark “identifies” the product as a genuine Ford part when it is not.

Moreover, Levy’s example of the “Ford oval” appearing on a baseball bat presumes that a buyer would not consider the baseball bat to be a genuine Ford product. With respect to automotive parts, however, the average purchaser expects any parts bearing the “Ford oval” to be genuine even if Ford never placed or intended to place that mark on that particular good.

Finally, Levy objects to the instructions given by the trial judge because there was no “knowledge charge.” As the judge observed, however, it would be impossible to “intend to evade a lawful restriction” on the sale or distribution of goods without knowing that those goods were fake. It was not error for the judge to decline to instruct the jury further on mens rea (see Greenberg et al., New York Criminal Law § 15:29, at 792-793 [6 West’s NY Prac Series 3d ed 2007] [noting that trademark counterfeiting requires criminal intent, but that knowledge that a good is counterfeit is only required for simple possession]). Jurors are presumed to have sufficient intelligence to make elementary logical inferences presupposed by the language of a charge, and defendants are therefore not “entitled to select the phraseology” to illustrate such inferences (People v Samuels, 99 NY2d 20, 25-26 [2002]). Here, the evidence could lead a rational juror to find beyond a reasonable doubt that Levy intended to evade a lawful restriction on the sale of goods: the Black & Yellow warehouse was searched three times for counterfeit Ford parts; Ford representatives visited on two other occasions to inventory counterfeit Ford parts; and Levy agreed to the terms of a preliminary injunction prohibiting the sale and distribution of counterfeit Ford parts.

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

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

Order affirmed.

      . This is the description of the preliminary injunction given by Ford’s outside trademark attorney at Levy’s trial for trademark counterfeiting. The injunction was admitted into evidence, but was not included in the record on appeal.

      . The full text of Penal Law § 165.70, as relevant to this appeal, defines these terms as follows:
      “1. The term ‘trademark’ means (a) any word, name, symbol, or device, or any combination thereof adopted and used by a person to identify goods made by a person and which distinguish them from those manufactured or sold by others which is in use and which is registered, filed or recorded under the laws of this state or of any other state or is registered in the principal register of the United States patent and trademark office . . .
      “2. The term ‘counterfeit trademark’ means a spurious trademark or an imitation of a trademark that is: “(a) used in connection with trafficking in goods; and “(b) used in connection with the sale, offering for sale or distribution of goods that are identical with or substantially indistinguishable from a trademark as defined in subdivision one of this section . . .
      “4. The term ‘goods’ means any products, services, objects, materials, devices or substances which are identified by the use of a trademark.”


author: Jones, J.

text:
    [939 NE2d 1206, 914 NYS2d 76]
    The People of the State of New York, Respondent, v Gregory Taylor, Appellant.
    Argued October 13, 2010;
    decided November 18, 2010

      POINTS OF COUNSEL

      Benjamin N. Cardozo School of Law Criminal Appeals Clinic, New York City (Jonathan H. Oberman and Stanley Neustadter of counsel), for appellant.
    I. The evidence is insufficient to establish a brutal, prolonged course of conduct against a particularly vulnerable victim where the fatal act was not so uncommonly brutal as to reflect evil, it occurred abruptly, and it did not prolong the suffering of the victim, who the evidence could not prove was alive when the defendant covered her head with a plastic bag. (People v Suarez, 6 NY3d 202; People v Kibbe, 35 NY2d 407; People v Mills, 1 NY3d 269; People v Poplis, 30 NY2d 85; People v Best, 202 AD2d 1015, 85 NY2d 826; People v Mancini, 7 NY3d 767; People v Bowman, 48 AD3d 178; People v Boyce, 36 AD3d 711; People v LaGasse, 56 AD3d 1151; People v Georgiou, 38 AD3d 155.) II. The evidence is insufficient to prove that the defendant, though impaired by crack, was utterly indifferent to human life when he administered the fatal act in the heat of a violent altercation or later when he believed the victim was already dead after he failed to detect breathing or a heartbeat. (People v Feingold, 7 NY3d 288; People v Jean-Baptiste, 11 NY3d 539; People v Suarez, 6 NY3d 202; People v Jernatowski, 238 NY 188; People v Roe, 74 NY2d 20; People v Wells, 53 AD3d 181; People v Coon, 34 AD3d 869.) III. The evidence is consistent only with intentional conduct and therefore cannot be depraved indifference murder where the court endorsed the People’s view that the defendant had animosity toward the victim, a motive to kill her, total control over her while she was isolated, contemplated killing her, and knew she was alive when he tightly tied a plastic bag over her head. (People v Suarez, 6 NY3d 202; People v Payne, 3 NY3d 266; People v Hafeez, 100 NY2d 253; People v Gonzalez, 1 NY3d 464; People v Poplis, 30 NY2d 85; People v Best, 202 AD2d 1015; People v Bowman, 48 AD3d 178; People v Atkinson, 21 AD3d 145, 7 NY3d 765; People v Roe, 74 NY2d 20.) IV The foregoing arguments are preserved for this Court’s review. (People v Feingold, 7 NY3d 288; People v Jean-Baptiste, 11 NY3d 539; People v Hawkins, 11 NY3d 484; Matter of Santucci v Kohn, 138 AD2d 603; People v Payne, 3 NY3d 266.)

      Robert T. Johnson, District Attorney, Bronx (Frances Y. Wang and Peter D. Coddington of counsel), for respondent.
    Defendant’s challenge to the legal sufficiency of the evidence is unpreserved and meritless. (People v Suarez, 6 NY3d 202; People v Feingold, 7 NY3d 288; People v Hawkins, 11 NY3d 484; People v Gray, 86 NY2d 10; People v Gomez, 65 NY2d 9; People v Jean-Baptiste, 11 NY3d 539; People v Gonzalez, 1 NY3d 464; People v Payne, 3 NY3d 266; People v Hafeez, 100 NY2d 253; People v Dekle, 56 NY2d 835; People v Sala, 95 NY2d 254.)
   OPINION OF THE COURT

Jones, J.

On this appeal, we are called upon to determine whether defendant preserved a legal sufficiency challenge to his depraved indifference murder conviction and, if preserved, whether his conviction should be affirmed. Because defendant sufficiently preserved that challenge and the conviction is not in accord with this Court’s precedents regarding depraved indifference murder, we reverse the Appellate Division order.

On May 11, 2004, a female victim was found dead on the roof of an apartment building located in the Bronx. She was found partially clothed and barefooted with a black plastic bag covering her head. The plastic bag was knotted tightly around her neck. An autopsy performed on the victim’s body revealed a one-half-inch laceration above her right eyebrow, abrasions on her cheek and neck, and purple discoloration of her face. The medical examiner found hemorrhaging at the site of the abrasions and listed the cause of death as “blunt impact of [the] head and compression of [the] neck and chest.”

Defendant was a resident at the building where the victim was found. That building was equipped with two video cameras on each floor. Videos from May 5th and May 6th showed defendant approaching the victim and entering his apartment with her at night, stepping back into the hallway several hours later, and carrying her body to the roof in the morning. Days later, a search of his apartment revealed beads matching the victim’s broken necklace scattered throughout defendant’s apartment and bloodstains on the bedroom wall and door. Defendant was later taken into custody where he made a series of statements.

According to defendant, he and the victim smoked crack cocaine on the night of May 5th. Sometime later, she attacked him, and he hit her to protect himself. She then became quiet and he went to sleep. Defendant gave conflicting statements as to whether the victim was dead or alive when he awoke in the morning, but admitted covering her head with a plastic bag to stop the blood from spreading and placing her on the roof of his building.

A grand jury indicted defendant for second-degree depraved indifference murder and first-degree manslaughter. At the close of trial, defendant moved to dismiss the depraved indifference murder charge based upon the legal insufficiency of the evidence, citing People v Suarez (6 NY3d 202 [2005]). Defendant argued that his actions did not fall within the ambit of depraved indifference murder as detailed in Suarez and prior cases where depravity was found, citing People v Best (85 NY2d 826 [1995]) and People v Poplis (30 NY2d 85 [1972]). He further argued that the evidence adduced by the People was illustrative of intentional acts and reasoned that such acts are “not the theory of depraved indifference murder.” Supreme Court denied the motion, stating that it was “a question of fact ultimately for the finder of fact.”

The jury convicted defendant of depraved indifference murder. The Appellate Division, with one dissenting Justice, affirmed (62 ,AD3d 605 [2009]). The court concluded (id. at 608) that “defendant’s appellate challenge to the legal sufficiency of the evidence ha[d] not been preserved inasmuch as his trial motion to dismiss was based on” Suarez and his appeal was based on People v Feingold (7 NY3d 288 [2006]). The dissent, however, concluded that defendant’s argument was preserved and that his conviction was not supported by legally sufficient evidence. A Justice of the Appellate Division granted defendant leave to appeal. We now reverse.

In Suarez, a majority of the Court explained the limited circumstances in which a defendant may be convicted of depraved indifference murder where only a single victim has been endangered (6 NY3d at 212-213). Because defendant moved to dismiss the depraved indifference murder charge for legal insufficiency pursuant to Suarez, he properly preserved the issue for appellate review. As we explain below, it is incorrect to suggest that an argument under Suarez is fundamentally different from one based on Feingold.

To support a depraved indifference conviction, the People must demonstrate that defendant, “[u]nder circumstances evincing a depraved indifference to human life, . . . recklessly engage[d] in conduct which create[d] a grave risk of death to another person, and thereby cause[d] the death of another person” (Penal Law § 125.25 [2]). This Court has cautioned that depraved indifference murder should rarely be charged in a one-on-one killing (Suarez, 6 NY3d at 210). Most killings “are suitably punished by statutes defining intentional murder or manslaughter in the first or second degree or criminally negligent homicide” (id. at 211). Thus, those killings do not satisfy the depraved indifference standard (id.). In the limited cases where depraved indifference is applicable, “intent to [harm or] kill is absent,” but “acts . . . marked by uncommon brutality . . . coupled . . . with depraved indifference to the victim’s plight” are present (id. [internal quotation marks omitted]). The Court has made clear that “where defendant’s conscious objective was to ‘intentionally injur(e)’ the victim,” there can be “ ‘no valid line of reasoning that could support a jury’s conclusion that defendant possessed the mental culpability required for depraved indifference murder’ ” (id. at 209, quoting People v Hafeez, 100 NY2d 253, 259 [2003]).

The Suarez Court explained two fact patterns in which a one-on-one killing could result in a depraved indifference conviction. While we noted that “other extraordinary cases” had arisen in which such convictions were upheld (id. at 213), we said that these two fact patterns “have recurred” (id. at 212). The first is “when the defendant intends neither to seriously injure, nor to kill, but nevertheless abandons a helpless and vulnerable victim in circumstances where the victim is highly likely to die” (id.; see People v Mills, 1 NY3d 269 [2003] [defendant prevented others from aiding and abandoned a drowning boy who died after defendant pushed him into the water; the boy did not resurface either because he accidentally struck his head or had an epileptic seizure]; People v Kibbe, 35 NY2d 407 [1974] [defendants robbed an intoxicated victim and stranded him on a dark, remote, snowy road, partially clothed and barefoot; the victim was struck by a passing truck and killed]). The second is when the “defendant—acting with a conscious objective not to kill but to harm—engages in torture or a brutal, prolonged and ultimately fatal course of conduct against a particularly vulnerable victim” (6 NY3d at 212; see Best, 85 NY2d 826 [1995] [defendant repeatedly beat his nine-year-old son, inflicting large open wounds through which bacteria entered and eventually caused his death]; Poplis, 30 NY2d 85 [1972] [defendant caused the death of a 3 1/2-year-old child by repeatedly beating her over a course of several days]).

Feingold, decided after defendant’s conviction here, did not reject, but extended, Suarez’s reasoning. Suarez and Feingold were the last of the series of cases in which our view of depraved indifference murder “gradually and perceptibly changed” (Policano v Herbert, 7 NY3d 588, 602 [2006]) from that expressed in People v Register (60 NY2d 270 [1983]), which had held that “depraved indifference to human life” was not a mental state but referred to an objectively-determined degree of risk. In Feingold, we said “explicitly” for the first time that “depraved indifference to human life is a culpable mental state” (7 NY3d at 294). The two fact patterns discussed in Suarez exemplify that mental state. Under both Suarez and Feingold, the decisive question is whether defendant acted with the state of mind required by the depraved indifference murder statute—“an utter disregard for the value of human life—a willingness to act not because one intends harm, but because one simply doesn’t care whether grievous harm results or not” (Suarez, 6 NY3d at 214).

Here, the evidence was legally insufficient to establish depraved indifference murder. In this case, defendant struck the victim on her head and went to sleep. After he awoke, defendant knotted a plastic bag over the victim’s head and dumped her body on the roof of his building. As the dissent below noted, the People did not establish “torture or a brutal, prolonged” course of conduct (62 AD3d at 609). These facts do not fall within the limited nature of a depraved indifference murder set forth by this Court, which requires “utter depravity, uncommon brutality and inhuman cruelty” and “indifference to the victim’s plight” (Suarez, 6 NY3d at 211, 216).

Accordingly, the Appellate Division order should be reversed, the first count of the indictment dismissed and a new trial ordered on the second count of the indictment charging manslaughter in the first degree.

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

Order reversed, etc.

       This Court decided Feingold months after Supreme Court rendered defendant’s judgment of conviction in this case.


text:
    [940 NE2d 557, 914 NYS2d 731]
    Lindsay Grobman, Respondent, v Rhonda Chernoff et al., Defendants, and Rhonda Globman, Also Known as Rhonda Grobman, et al., Appellants.
    Argued October 21, 2010;
    decided November 30, 2010

      POINTS OF COUNSEL

      Law Office of Andrea G. Sawyers, Melville (Dominic P. Zafonte of counsel), for appellants.
    I. Courts are powerless to grant preaward interest from an arbitration award when the arbitrator was empowered to award interest but did not do so. (Matter of Spindler [New York Cent. Mut. Fire Ins. Co.], 283 AD2d 762; Matter of Weinrott [Carp], 32 NY2d 190; Matter of Meisels v Uhr, 79 NY2d 526; Matter of Silverman [Benmor Coats], 61 NY2d 299; Maross Constr. v Central N.Y. Regional Transp. Auth., 66 NY2d 341; Matter of West Side Lofts [Sentry Contr.], 300 AD2d 130; Matter of Excelsior 57th Corp. [Kern], 283 AD2d 209; Matter of Yates Lansing, Inc. [Town of Niskayuna], 202 AD2d 916; Matter of State Farm Mut. Auto. Ins. Co. v Cordes, 242 AD2d 635; Matter of Aetna Cas. & Sur. Co. v Rosen, 233 AD2d 499.) II. The Second Department erred in finding interest awardable under CPLR 5002, an exception to the broad arbitration rule, and created inconsistency in the law. (Love v State of New York, 78 NY2d 540; Van Nostrand v Froehlich, 44 AD3d 54; Ajoudanpour v Globman, 2 AD3d 373; Matter of Rothermel [Fidelity & Guar. Ins. Underwriters], 280 AD2d 862; Matter of Penco Fabrics [Louis Bogopulsky, Inc.], 1 AD2d 659; Matter of Burke, 191 NY 437; Matter of Gruberg [Cortell Group], 143 AD2d 39; Matter of Rosenblum [Aetna Cas. & Sur. Co.], 81 AD2d 731, 54 NY2d 607; Nicoletti v E.F. Hutton & Co., Inc., 761 F Supp 312; Matter of Levin & Glasser, P.C. v Kenmore Prop., LLC, 70 AD3d 443.) III. The Second Department’s decision adversely impacts litigants’ ability to contract for arbitration following a finding of liability and violates public policy favoring finality in arbitrations. (Merrill Lynch, Pierce, Fenner & Smith v Benjamin, 1 AD3d 39; Matter of Falzone [New York Cent. Mut. Fire

      Ins. Co.], 64 AD3d 1149; Matter of Nationwide Gen. Ins. Co. v Investors Ins. Co. of Am., 37 NY2d 91.)

      Roura & Melamed, New York City (Alexander J. Wulwick of counsel), for respondent.
    Plaintiff is entitled to interest on the damages award in this personal injury action from the date of the jury’s liability verdict to the date of tender of payment. (Matter of Burke, 191 NY 437; Matter of Rothermel [Fidelity & Guar. Ins. Underwriters], 280 AD2d 862; Ajoudanpour v Glob-man, 2 AD3d 373; Love v State of New York, 78 NY2d 540; Pay v State of New York, 87 NY2d 1011; Van Nostrand v Froehlich, 44 AD3d 54, 10 NY3d 837; O’Brien v Barretta, 44 AD3d 731; Gillespie v Great Atl. & Pac. Tea Co., 26 AD2d 953, 21 NY2d 823; Culpepper v Allstate Ins. Co., 31 AD3d 490; Matter of Kavores [Motor Veh. Acc. Indem. Corp.], 29 AD2d 68, affd sub nom. McEntee [Motor Vehicle Acc. Indem. Corp.], 28 NY2d 939.)
   OPINION OF THE COURT

Read, J.

In August 1996, plaintiff Lindsay Grobman was injured in a car accident; at the time, she was traveling as a passenger in a car driven by defendant Adam J. Chernoff and owned by defendant Rhonda Globman (also known as Rhonda Grobman). A bifurcated trial was held in plaintiffs ensuing lawsuit. In June 2000, a jury found defendants 100% at fault in the happening of the accident. The next month, a jury found that plaintiff had suffered a serious injury; namely, “permanent consequential limitation of use of a body organ or member” (see Insurance Law § 5102 [d]), and awarded her damages for future medical expenses, but not for future pain and suffering. Supreme Court entered judgment for plaintiff in the amount of $10,000 in August 2001. This sum included $1,100 for past pain and suffering and $8,900 for future medical expenses.

Plaintiff appealed. The Appellate Division concluded that the jury’s “failure to award any damages for future pain and suffering [could not] be reconciled with the finding of permanent injury,” and remitted the matter to Supreme Court for a new trial on the issue of damages (Ajoudanpour v Globman, 2 AD3d 373 [2d Dept 2003]).

On remand, Supreme Court granted defendants’ motion to compel arbitration on all issues, including the threshold issue as to whether plaintiff suffered serious injury. Plaintiff appealed again, and the Appellate Division reversed. The court concluded that the jury’s determination that plaintiff had sustained serious injury within the meaning of New York’s no-fault statute, which neither party challenged in the first appeal, was a final and binding determination that could not be relitigated in arbitration (Grobman v Chernoff, 35 AD3d 658, 659 [2d Dept 2006]).

The case then returned to arbitration solely on the issue of damages. The parties agreed to high/low parameters of $150,000 and $10,000; that “any and all pending litigation arising from this action shall be discontinued with prejudice upon the determination of this matter”; and that damages were at issue. After a hearing, the arbitrator awarded plaintiff a “net amount award” of $125,000. The arbitrator’s decision did not mention interest.

Plaintiff subsequently moved and defendants cross-moved to confirm the arbitration award and enter judgment. While these motions were pending, defendants’ insurance carrier tendered a check for $125,000 as “full and final settlement.” Plaintiff retained this check, but did not cash it.

In a decision in August 2008 disposing of the motions, Supreme Court noted that the “principal issue” contested by the parties was “whether plaintiff [was] entitled to interest on the arbitration award computed from the date of the jury verdict in her favor on the issue of liability,” or, alternatively, “from the date of the arbitration award.” (2008 NY Slip Op 33619[U], *2.) The judge added that “[t]he decision of the arbitrator does not allude to the subject and neither side contends that the question was presented to the arbitrator.” (Id.)

Supreme Court confirmed the award in the amount of $125,000, “with interest ... at the judgment rate from the date of the award with credit to be given to defendants for the payment that was tendered, computed from the date of receipt of the check.” (Id. at *6.) The judge acknowledged that “[i]n general,” where a plaintiff has obtained a favorable jury verdict on liability, “interest on a judgment ultimately entered in a motor vehicle accident case begins to run from the date of. . . the jury’s verdict”; however, he added, the usual rule did not govern this case “because the parties agreed to submit the entire dispute to arbitration.” (Id. at *3.)

Plaintiff appealed to the Appellate Division for a third time. As relevant here, the court held that plaintiff was entitled to interest on the damages award from the date the jury found defendants liable, citing our decision in Love v State of New York (78 NY2d 540 [1991]) (63 AD3d 786 [2d Dept 2009]). We granted defendants’ motion for leave to appeal (13 NY3d 714), and now affirm.

Defendants argue that the parties’ arbitration agreement includes a “broad arbitration clause,” which empowered the arbitrator to decide the entire controversy, including the amount of any prejudgment interest. While the parties in this case were free to submit the issue of prejudgment interest to the arbitrator, we do not read their arbitration agreement as having done this. As relevant, the agreement says merely “AT ISSUE: Damages” and, as we pointed out in Love, damages and prejudgment interest are not the same thing. Damages compensate plaintiffs in money for their losses, while prejudgment interest “is simply the cost of having the use of another person’s money for a specified period” (Love, 78 NY2d at 544, citing Siegel, NY Prac § 411, at 623 [2d ed]). Further, as plaintiff observes, there was “no necessity to negotiate whether plaintiff was entitled to interest” as a part of the arbitration agreement because “she already possessed that right as a matter of law as of the date of her liability verdict.” Finally, there are no circumstances in this case indicating that plaintiff gave up that right when she agreed to arbitrate damages (cf. Rice v Valentine, 75 AD3d 631 [2d Dept 2010]).

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

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

Order affirmed, with costs.