author: Fahey, J. Rivera, J.

text:
    [45 NE3d 945, 25 NYS3d 49]
    The People of the State of New York, Appellant, v Natanael Sagastumeal Varenga, Respondent.
    Argued November 16, 2015;
    decided December 17, 2015

      POINTS OF COUNSEL

      Thomas J. Spota, District Attorney, Riverhead (Thomas C. Costello of counsel), for appellant.
    The Appellate Division, Second Department erroneously determined that a conviction is not “final” until one year and 30 days after the imposition of sentence. (People v Andrews, 108 AD3d 727, 22 NY3d 1038; People v Bent, 30 Misc 3d 1240[A], 2011 NY Slip Op 50409[U], 108 AD3d 882; Padilla v Kentucky, 559 US 356; People v Ekinici, 191 Misc 2d 510; People v Caceras, 40 Misc 3d 1217[A], 2013 NY Slip Op 51216[U]; People v Garcia, 42 Misc 3d 1205[A], 2013 NY Slip Op 52218[U]; People v Moran, 44 Misc 3d 1205[A], 2014 NY Slip Op 51018[U]; People v Duggan, 69 NY2d 931; People v Cabrera, 44 Misc 3d 1220[A], 2014 NY Slip Op 51211 [U]; Teague v Lane, 489 US 288.)

      Solages & Associates, Hauppauge (Phil Solages and Jonathan S. Fishbein of counsel), for respondent.
    The Second Department correctly applied Criminal Procedure Law § 460.30 when it held that for Padilla purposes defendant’s conviction was not “final” until one year and 30 days after sentencing. (People v Bent, 108 AD3d 882; People v Ekinici, 191 Misc 2d 510; People v Caceras, 40 Misc 3d 1217[A], 2013 NY Slip Op 51216[U]; People v Garcia, 42 Misc 3d 1205[A], 2013 NY Slip Op 52218[U]; People v Moran, 44 Misc 3d 1205[A], 2014 NY Slip Op 51018[U]; People v Peque, 22 NY3d 168; People v Hobson, 39 NY2d 479; People v Andrews, 108 AD3d 727; People v Ellis, 45 Misc 3d 716; People v Kabre, 29 Misc 3d 307.)

      Dawn M. Seibert, Immigrant Defense Project, New York City, and Center for Appellate Litigation, New York City (Leticia Olivera and Claudia Trupp of counsel), for Randy Hertz and others, amici curiae.
    I. For the purposes of application of new federal constitutional rules in federal habeas proceedings, if a defendant does not seek direct review, a conviction becomes final when the time for seeking review has expired, including any discretionary review period. (Teague v Lane, 489 US 288; Caspari v Bohlen, 510 US 383; Policano v Herbert, 7 NY3d 588; People v Baret, 23 NY3d 777; Danforth v Minnesota, 552 US 264; People v Pepper, 53 NY2d 213; Smith v Gonzales, 468 F3d 272.) II. Under New York’s statutory scheme, a defendant may seek direct review until the expiration of the deadline for filing an appeal pursuant to CPL 460.30. (People v Syville, 15 NY3d 391; People v Thomas, 47 NY2d 37; People v Callaway, 24 NY2d 127; People v Montgomery, 24 NY2d 130; People v Corso, 40 NY2d 578.) III. A bright-line rule that a New York criminal case becomes final upon the expiration of the filing deadline in CPL 460.30 is consistent with finality analysis in other federal criminal contexts. (Smith v Gonzales, 468 F3d 272; Clay v United States, 537 US 522; Jimenez v Quarterman, 555 US 113; Bethea v Girdich, 293 F3d 577; Carey v Saffold, 536 US 214; Bossett v Walker, 41 F3d 825.)
   OPINION OF THE COURT

Fahey, J.

On this appeal, we are asked to decide when a defendant’s judgment of conviction and sentence becomes final for purposes of applying a new rule of federal constitutional criminal procedure, when the defendant does not take a direct appeal to the Appellate Division. Defendant asks us to hold that the judgment did not become final until one year and 30 days after he was sentenced, inasmuch as that was the last day that he could have sought an extension from the Appellate Division to file a late notice of appeal pursuant to CPL 460.30 (1).

The Appellate Division never granted defendant such relief. No motion pursuant to CPL 460.30 (1) for leave to file a late notice of appeal was ever made. Defendant asks us to extend the finality of the judgment by the one-year grace period of CPL 460.30 (1) simply because that grace period is available, and not because he has demonstrated entitlement to its relief. In light of the uncertainty in the finality of judgments that would result if we adopted defendant’s definition of finality, we reject that definition. We hold that where a defendant does not take a timely direct appeal from the judgment, and does not move for leave to file a late notice of appeal pursuant to CPL 460.30 (1), the judgment becomes final 30 days after sentencing, on the last day that a defendant has an inviolable right to file a notice of appeal pursuant to CPL 460.10 (1) (a).

L

Defendant is a native of Honduras who was granted Temporary Protected Status by United States immigration authorities in 1999. In 2008, defendant was charged with assault in the second degree, a class D felony (see Penal Law § 120.05). On March 19, 2009, defendant pleaded guilty to the charge in exchange for a negotiated sentence of five years’ probation. On May 14, 2009, defendant was sentenced as promised. During the sentencing proceeding, defendant was informed on the record of his right to appeal the judgment of conviction and sentence. Defendant nevertheless did not file a notice of appeal.

Defendant subsequently was notified that his Temporary Protected Status would not be renewed due to his felony conviction, and he was placed in removal proceedings. In April 2011, defendant filed a CPL 440.10 motion seeking to vacate the 2009 judgment. Defendant’s primary claim was based on the United States Supreme Court’s 2010 decision in Padilla v Kentucky (559 US 356 [2010]). In Padilla, the Supreme Court held that the Sixth Amendment of the Federal Constitution requires criminal defense counsel to inform a noncitizen client whether his or her guilty plea "carries a risk of deportation” (id. at 374). At the time defendant filed his CPL 440.10 motion, neither the United States Supreme Court nor this Court had determined whether Padilla should be applied retroactively. Defendant therefore asserted in his motion papers that Padilla should apply retroactively.

Supreme Court denied defendant’s CPL 440.10 motion without a hearing. The court concluded that Padilla should not be applied retroactively to judgments such as defendant’s that became final before Padilla was decided.

A Justice of the Appellate Division granted defendant’s application for leave to appeal from Supreme Court’s order (2012 NY Slip Op 68845[U] [2d Dept 2012]; see CPL 460.15). While that appeal was pending, the United States Supreme Court decided Chaidez v United States (568 US —, 133 S Ct 1103 [2013]). In Chaidez, the Supreme Court applied the retroactivity principles set forth in Teague v Lane (489 US 288 [1989], reh denied 490 US 1031 [1989]) and held that Padilla announced a “new rule” that would not be applied retroactively to any conviction that became final before Padilla was decided on March 31, 2010 (see Chaidez, 568 US at —, 133 S Ct at 1113).

After Chaidez was decided, the Appellate Division invited the parties to comment on whether defendant’s 2009 judgment of conviction and sentence became final before or after Padilla was decided. Defendant contended that the judgment did not become final until June 13, 2010, a year and 30 days after he was sentenced on May 14, 2009. Defendant’s reasoning was that because CPL 460.10 (1) (a) granted him 30 days from the imposition of sentence to file a notice of appeal, and CPL 460.30 (1) granted him an additional year to obtain an extension to file a late notice of appeal, he had not exhausted the availability of an appeal until the last date on which he could have filed a notice of appeal. The People responded, as relevant here, that the judgment became final 30 days after sentencing, inasmuch as that was the last date upon which defendant had the automatic right to file a notice of appeal pursuant to CPL 460.10 (1) (a). The People argued that defendant was not entitled to extend the date of finality of the judgment by relying on the one-year grace period of CPL 460.30 (1), inasmuch as defendant never sought an extension to file a late notice of appeal pursuant to that statute.

The Appellate Division rejected defendant’s contention that it should give broader retroactive effect to Padilla than the United States Supreme Court gave to Padilla in Chaidez, and therefore held that Padilla should not be applied retroactively to judgments that became final before Padilla was decided (see 115 AD3d 684, 685 [2d Dept 2014]). The Appellate Division’s decision therefore was consistent with this Court’s subsequent decision in People v Baret (23 NY3d 777 [2014], cert denied 574 US —, 135 S Ct 961 [2015]), decided a few months later.

Nevertheless, the Appellate Division reasoned that defendant could benefit from the Padilla rule on his CPL 440.10 motion because “defendant’s conviction . . . did not become final until June 14, 2010, the last date on which he would have been permitted to seek leave to file a late notice of appeal” (115 AD3d at 685). The Court cited CPL 460.30 (1), as well as its prior decision in People v Andrews (108 AD3d 727 [2d Dept 2013], lv denied 22 NY3d 1038 [2013], denied reconsideration 23 NY3d 1018 [2014]) (see 115 AD3d at 685).

In Andrews, the Appellate Division noted that the defendant in that case could not benefit from Padilla because “his conviction became final, at the latest, on October 5, 2009, the last date on which he would have been permitted to seek leave to file a late notice of appeal” (Andrews, 108 AD3d at 728 [emphasis added]). Thus, in Andrews, the Appellate Division did not conclusively decide the issue of finality where a defendant does not take a direct appeal. This Court did not sanction Andrews’s inconclusive statement {see generally People v Rodriguez, 91 NY2d 912, 912 [1998]). In this case, by contrast, the Appellate Division decided the issue of finality where the defendant does not take a direct appeal by applying the CPL 460.30 (1) grace period (see 115 AD3d at 685). The Court held that because the judgment did not become final until after Padilla was decided on March 31, 2010, defendant could raise a Padilla claim on his CPL 440.10 motion {see 115 AD3d at 685-686). The Appellate Division remitted the matter to Supreme Court for an evidentiary hearing on defendant’s motion (see id. at 686-687).

A Judge of this Court granted the People leave to appeal (23 NY3d 1068 [2014]). We now reverse.

IL

Initially, we note that there are certain questions of law that are not at issue on this appeal. First, the retroactive application of Padilla is not at issue. As noted above, in Chaidez, the United States Supreme Court held that Padilla announced a new rule and that pursuant to federal retroactivity principles, that new rule would not apply to convictions that became final before Padilla was decided (see Chaidez, 568 US at —, 133 S Ct at 1113). Last year, in Baret, this Court rejected the defendant’s contentions that we should interpret Padilla more broadly than the Supreme Court did in Chaidez, or that Padilla should be applied retroactively pursuant to state retroactivity principles (see Baret, 23 NY3d at 795-800). We therefore held that Padilla would not be applied retroactively in state post-conviction collateral review proceedings to judgments that became final before Padilla was decided (see id. at 782-783).

Second, for purposes of assessing whether a new rule of federal constitutional criminal procedure applies on collateral review, the date of finality of a judgment where a defendant does take a direct appeal is not at issue here. When a defendant takes a direct appeal, the judgment becomes final for federal collateral review purposes when the defendant’s applications for discretionary review from higher appellate courts have been denied, or the time for seeking such discretionary appellate review has expired (see Gonzalez v Thaler, 565 US —, —, 132 S Ct 641, 653-654 [2012]; Clay v United States, 537 US 522, 527 [2003]; Griffith v Kentucky, 479 US 314, 321 n 6 [1987]). This Court has applied that rule of finality where the defendant takes a direct appeal (see Policano v Herbert, 7 NY3d 588, 593 [2006]; People v Pepper, 53 NY2d 213, 221-222 [1981], cert denied 454 US 967 [1981], and cert denied sub nom. New York v Utter, 454 US 1162 [1982]).

Here, however, defendant did not take a direct appeal. Thus, the only question of law presented for our review is when a judgment of conviction and sentence becomes final where the defendant does not take a direct appeal, for purposes of determining whether a new rule of federal constitutional criminal procedure will apply in a state postconviction collateral review proceeding.

III.

Relying on the general federal standard of finality (see e.g. Griffith, 479 US at 321 n 6), defendant asserts that the availability of an appeal cannot be truly “exhausted” until one year and 30 days after sentencing, inasmuch as within that time period, he could have asked the Appellate Division to grant him an extension to file a notice of appeal pursuant to CPL 460.30 (1). As defendant acknowledges, however, the United States Court of Appeals for the Second Circuit has specifically rejected the proposition that the one-year grace period of CPL 460.30 (1) extends the date of finality of a judgment for federal habeas corpus purposes.

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides that a federal habeas corpus petitioner generally must file the petition within one year of the date that a state court judgment becomes final, either “by the conclusion of direct review or the expiration of the time for seeking such review” (28 USC § 2244 [d] [1] [A]). In Bethea v Girdich (293 F3d 577 [2d Cir 2002]), the Second Circuit held that the petitioner’s motion for an extension of time to file a notice of appeal, which the Appellate Division denied, did not extend the date of finality of the petitioner’s judgment and therefore did not “restart” the one-year AEDPA limitations period (see Bethea, 293 F3d at 578-579). The Second Circuit wrote:

“As we stated in holding that state-court applications for collateral relief do not ‘restart’ the AEDPA limitations period, ‘[i]f the one-year period began anew when the state court denied collateral relief, then state prisoners could extend or manipulate the deadline for federal habeas review by filing additional petitions in state court,’ thus defeating the goal of the AEDPA to prevent undue delays in federal habeas review. This reasoning applies at least as strongly to motions to extend the time to appeal, which ‘can be sought at any time, even many years after conviction.’ Accordingly, we hold that the filing of a motion to extend the time to appeal or to file a late notice of appeal does not ‘restart’ the AEDPA limitation period” (Bethea, 293 F3d at 578-579 [citations omitted]).

The Second Circuit therefore concluded that the petitioner’s judgment became final 30 days after sentencing, “when [his] time for filing a notice of appeal from his judgment of conviction expired” pursuant to CPL 460.10 (1) (id. at 578; see also Villegas v Hunt, 2008 WL 4724296, *2, 2008 US Dist LEXIS 86130, *4-5 [WD NY, Oct. 24, 2008, No. 07-CV-6552 (VEB)]; McDermott v Rock, 2008 WL 346371, *1-2, 2008 US Dist LEXIS 8781, *3-5 [ND NY, Feb. 6, 2008, No. 9:07-CV-0932 (GLS) (GJD)]).

We agree with defendant and the amici curiae who have submitted a brief in support of his position that Bethea is not dispositive of the question before us {see generally Danforth v Minnesota, 552 US 264, 278-281 [2008]). Nevertheless, Bethea is instructive. This Court had an opportunity in Baret to depart from the Teague standard and provide broader retroactive application to the Padilla rule than the Supreme Court provided to that rule in Chaidez. This Court declined to do so (see Baret, 23 NY3d at 795-800). If we were to adopt defendant’s definition of finality here, we would in practice be providing broader retroactive application to the Padilla rule, by extending the date of finality of judgments beyond the date that the federal courts in New York apply in federal postconviction collateral review proceedings.

More crucial to our analysis, however, is the uncertainty that would result in the finality of judgments if we adopted defendant’s definition of finality. The Appellate Division did not grant defendant an extension to file a notice of appeal pursuant to CPL 460.30 (1) because defendant never sought such relief. Defendant asks us to extend the date of finality of the judgment by the one-year grace period of CPL 460.30 (1) simply because that grace period exists. Contrary to defendant’s implication, that grace period is not available to any defendant who asks for an extension.

Rather, a defendant seeking to file a late notice of appeal pursuant to CPL 460.30 (1) must demonstrate that he or she was prevented from timely filing a notice of appeal due to the “improper conduct of a public servant or improper conduct, death or disability of the defendant’s attorney,” or the “inability of the defendant and his attorney to have communicated . . . concerning whether an appeal should be taken” (CPL 460.30 [1] [a], [b]). Defendant did not make any such showing because he did not request leave from the Appellate Division to file a late notice of appeal pursuant to CPL 460.30 (l). Defendant’s contention, essentially, is that because he could have made a motion for leave to file a late notice of appeal pursuant to CPL 460.30 (1), we should grant him the benefit of that one-year period to extend the date that the judgment became final, without requiring him to demonstrate his entitlement to relief under the statute.

We decline to do so. Adopting defendant’s reasoning would result in uncertainty in the finality of judgments in many procedural situations. For example, a defendant who takes a direct appeal to the Appellate Division but does not seek leave to appeal to this Court in a timely fashion could argue that the judgment was not final until one year and 30 days after the Appellate Division affirmance, inasmuch as the defendant could have sought leave from this Court to file a belated application for discretionary review pursuant to CPL 460.30 (1). Or, a defendant who has filed a notice of appeal with the Appellate Division but has had the appeal dismissed due to failure to perfect could argue that the judgment is not yet final, inasmuch as the defendant could ask the Appellate Division to vacate the dismissal of the appeal.

Indeed, if we adopt defendant’s logic, other defendants who did not take a direct appeal conceivably could argue that their judgments were never final, inasmuch as they could seek to file a late notice of appeal even after the one-year grace period of CPL 460.30 has expired by moving for a writ of error coram nobis (see generally People v Syville, 15 NY3d 391, 397-401 [2010]). A motion for coram nobis relief in that context has no time limitation, and the relief granted is precisely the same as the relief granted on a successful CPL 460.30 application: the defendant is allowed to file a late notice of appeal and take a direct appeal to the Appellate Division (see id. at 402). Although a defendant seeking leave to file a late notice of appeal by way of a writ of error coram nobis generally must satisfy a higher evidentiary burden than a defendant seeking CPL 460.30 relief (see People v Andrews, 23 NY3d 605, 611 [2014], rearg denied 24 NY3d 937 [2014], citing Syville, 15 NY3d at 400 n 2), under defendant’s reasoning here, a defendant seeking coram nobis relief would not be required to demonstrate entitlement to that relief in order to extend the finality of the judgment. Rather, the defendant would be entitled to extend the finality of the judgment simply because coram nobis relief is available, and not because the defendant has demonstrated entitlement to it.

We have recognized society’s interest in the finality of judgments as “formidable” (People v Jackson, 78 NY2d 638, 647 [1991]). Defendant’s definition of finality would wreak havoc on that formidable interest by requiring any court determining the date of finality of a judgment to analyze what could have happened rather than what did happen. We therefore reject defendant’s proposed definition of finality. We hold that where, as here, a defendant does not take a direct appeal from the judgment of conviction and sentence, the judgment becomes final 30 days after sentencing, when the defendant’s automatic right to seek direct appellate review of the judgment expires pursuant to CPL 460.10 (1) (a).

Defendant was sentenced on May 14, 2009. Defendant’s judgment of conviction and sentence therefore became final before Padilla was decided on March 31, 2010. Supreme Court did not err in holding that defendant’s Padilla claim was not cognizable on his CPL 440.10 motion to vacate the judgment, and the court properly denied defendant’s motion without a hearing.

Accordingly, the order of the Appellate Division should be reversed and the order of Supreme Court reinstated.

Rivera, J.

(dissenting). The question presented on this appeal is when does a judgment become final for purposes of a new rule announced during CPL 460.30’s one-year grace period for filing a notice of appeal. The majority needlessly addresses a much broader question and concludes that, in the case of a defendant who fails to seek an extension pursuant to 460.30, a judgment is final 30 days from when the defendant was sentenced, pursuant to CPL 460.10 (1) (a). I dissent, and rather than rely on federal habeas concerns not relevant to the state issues presented in this appeal or unsupported prudential concerns about a potential impact on finality of judgments, I ground my analysis on the unique facts of this case and the need for a legally sound and fair approach to the predicament faced by defendants when a new rule is issued after sentencing but before the time under 460.30 expires.

Defendant was sentenced upon his guilty plea on May 14, 2009, and under CPL 460.30 had until June 14, 2010, to seek leave to file a notice of appeal. Approximately 10 weeks before the end of this one-year period, the United States Supreme Court issued its decision in Padilla v Kentucky (559 US 356 [2010]), holding that defense counsel must inform their client of the immigration consequences of a guilty plea. Defendant filed a motion pursuant to CPL 440.10, seeking to vacate his judgment on the grounds that his attorney failed to advise him of the adverse immigration consequences of his plea. The Appellate Division concluded that defendant’s 440.10 motion was timely filed because the new rule announced in Padilla was decided before defendant’s judgment became final on June 14, 2010, the last day for defendant to file a notice of appeal under CPL 460.30.

The majority reverses, relying, in part, on Bethea v Girdich (293 F3d 577 [2d Cir 2002]). However, as the majority acknowledges, Bethea is not dispositive (majority op at 536), but I would add that it is also not persuasive or, as the majority concludes, “instructive.” The Second Circuit in Bethea sought to minimize undue delays in federal habeas review by avoiding what it considered to be a state prisoner’s ability to extend or manipulate the deadline for federal habeas by filing applications for collateral relief. Therefore, the court refused to restart the Antiterrorism and Effective Death Penalty Act limitations period anew with the filing of a motion to extend the time to appeal or to file a late notice of appeal {Bethea, 293 F3d at 578-579). The concerns cited by the Second Circuit in Bethea are of no moment where the defendant’s claim is one that results from a new rule issued after the initial 30 days have passed from his sentencing. Here, there is no attempt by defendant to manipulate the system. Rather, defendant seeks judicial review of a legally cognizable claim, fully available to a defendant whose conviction was not final before Padilla was decided.

Turning the focus to this limited class of defendants whose claims arise after the expiration of the initial 30 days for filing a notice of appeal as of right, the majority’s approach results in an illogical distinction between similarly situated defendants, and potentially shields illegal convictions from meritorious claims by foreclosing avenues of collateral and habeas review.

By way of example, compare the situation where two defendants sentenced on the same day, in accordance with their guilty pleas, do not file a notice of appeal within the 30-day period provided for in CPL 460.10. Ten months later, our Court pronounces a new rule, which ostensibly provides an appellate issue for both defendants. One defendant files a motion for an extension under CPL 460.30, which the Appellate Division denies, and defendant does not seek review from our Court, or alternatively we deny the leave to appeal. The other defendant does not seek an extension. Under the majority’s holding, the defendant who unsuccessfully filed for an extension has a viable argument that the judgment is final when this Court denies leave, or when the time for discretionary review of the denial of the 460.30 motion has expired. In contrast, the judgment of the defendant who did not file for an extension is final 30 days after sentencing — months before the appellate claim was viable. Yet, these two defendants are similar in all respects: both failed to file a notice of appeal within the 30 days provided for in CPL 460.10 (1) (a), neither one had been granted an extension to file a late notice of appeal, nor will they have an opportunity to challenge their judgments on direct appeal. Nevertheless, only the defendant who files an unsuccessful motion under 460.30 (1) may seek collateral relief from the judgment. There is no logical reason for such distinction.

Or consider the example where we announce a new rule on the last day of the one-year extension period. Even the most diligent defendant, including one not incarcerated, is unlikely to seek leave to appeal before the 460.30 time period runs out. A rule foreclosing such a defendant from an opportunity to collaterally challenge the judgment of conviction and sentence is unjustifiably harsh and unfair, and does nothing to further the goals of our state laws (see e.g. People v Syville, 15 NY3d 391, 399-400 [2010] [discussing the purpose of CPL 460.30]).

The majority’s “[m]ore crucial” basis for its holding is what it considers to be “the uncertainty that would result in the finality of judgments if [the Court] adopted defendant’s definition of finality” (majority op at 537). However, the majority’s prudential concerns regarding the finality of appeals are unjustified. The fact is that CPL 460.30 has a defined one-year deadline (see Syville, 15 NY3d at 399 [describing the deadline as “a significant restriction”]). Furthermore, defendants already have at their disposal statutory and common-law mechanisms to challenge a judgment, years after the time to appeal has expired (see CPL 440.10, 460.30; Syville, 15 NY3d at 400-401 [granting coram nobis relief]). These statutes evince the legislative interest in ensuring that judgments are reviewed for error. Therefore, I see no reason to interpret CPL 460.30 narrowly to limit the application of CPL 440.10, thereby foreclosing consideration of a claim where the defendant has not even had the benefit of appellate review of the judgment. Moreover, as the above examples illustrate, the finality of the judgments is uncertain until at least the expiration of the one-year extension period, because until that time the People cannot know if a defendant will choose to seek leave to appeal pursuant to CPL 460.30 (1). Finality under our criminal justice system is no more certain under the majority’s analysis.

Judges Pigott, Abdus-Salaam and Stein concur; Judge Rivera dissents in an opinion in which Chief Judge Lippman concurs.

Order of the Appellate Division reversed and order of Supreme Court, Suffolk County, reinstated.

      . Although the Supreme Court discussed the finality of the defendant’s “conviction” in Chaidez, and we discuss here the finality of defendant’s “judgment” due to our own state’s terminology (see CPL 1.20 [15]), we are referring to the same legal principle.

      . Contrary to the dissent’s suggestion (see dissenting op at 540-541), we express no opinion on the date of finality of a judgment where the defendant makes an unsuccessful CPL 460.30 motion for leave to file a late notice of appeal. Defendant here made no such motion, and we therefore have no occasion to consider whether the finality of the judgment would be extended by the mere making of a CPL 460.30 motion, or whether the motion must be granted by the Appellate Division to warrant a departure from the rule we set forth here. To decide that question would amount to an improper advisory opinion.

      . Notwithstanding the majority’s statements to the contrary, my disagreements are based on the ineluctable conclusions to be drawn from the majority’s analysis, and not on what the majority claims it did not decide (see majority op at 537 n 2).

      . We should also not turn a blind eye to the fact that, within the Appellate Division, the Departments grant extensions under this provision at different rates, and that, as a result, the majority’s holding unfairly penalizes defendants based on differences beyond their control. (See Joanne Macri,
        Missed Deadlines for Filing a Notice of Appeal: Criminal Procedure Law § 460.30 to the Rescue, New York State Defenders Association Practice Advisory [2009], cached at http://nycourts.gov/reporter/webdocs/ MissingDeadlines.pdf, formerly available at http://www.nysda.org/docs/PDFs/ 09Missed%20Deadlines%20for%20Filing%20a%20Notice%20of%20Appeal %20CPL%20sec%20460.30%20to%20the%20Rescue.pdf [accessed Dec. 9, 2015].)
      Here, the Second Department rendered its decision on defendant’s case fully aware of its practice regarding motions under 460.30, and in my opinion there is no compelling legal basis to reverse in this case.


source: Caselaw Access Project

author: Pigott, J. Stein, J.

license: Public Domain

text:
    [46 NE3d 601, 26 NYS3d 218]
    Pegasus Aviation I, Inc., et al., Appellants, v Varig Logistica S.A., Defendant, and MatlinPatterson Global Advisers, LLC, et al., Respondents.
    Argued October 13, 2015;
    decided December 15, 2015

      POINTS OF COUNSEL

      Coblentz Patch Duffy & Bass LLP, San Francisco, California (Richard R. Patch, of the California bar, admitted pro hac vice, of counsel), and Skarzynski Black LLC, New York City (James T. Sandnes and Aron M. Zimmerman of counsel), for appellants.
    I. Legal standards: (1) it is well established that parties to litigation are required to implement comprehensive “litigation holds” preserving all documents that may be relevant to the claims and defenses in the case, and (2) this court should clarify that spoliation standards do not vary based on the nature of the destroyed evidence. (Pension Comm. of Univ. of Montreal Pension Plan v Banc of Am. Sec., 685 F Supp 2d 456; VOOM HD Holdings LLC v EchoStar Satellite L.L.C., 93 AD3d 33; Roberts v Corwin, 41 Misc 3d 1210[A], 2013 NY Slip Op 51637 [U], 118 AD3d 571; Johnson v Edwards, 41 Misc 3d 756; Mangione v Jacobs, 37 Misc 3d 711, 121 AD3d 953; Hameroff & Sons, LLC v Plank, LLC, 36 Misc 3d 1229[A], 2012 NY Slip Op 51553[U], 108 AD3d 908; Ortega v City of New York, 9 NY3d 69; Biniachvili v Yeshivat Shaare Torah, Inc., 120 AD3d 605; Strong v City of New York, 112 AD3d 15; Enstrom v Garden Place Hotel, 27 AD3d 1084.) II. Both Supreme Court and the Appellate Division found that respondents had control of Varig Logistica S.A.’s documents and therefore a duty to preserve them. (VOOM HD Holdings LLC v EchoStar Satellite L.L.C., 93 AD3d 33; Keane v Keane, 8 NY3d 115; Glenbriar Co. v Lipsman, 5 NY3d 388; Pension Comm. of Univ. of Montreal Pension Plan v Banc of Am. Sec., 685 F Supp 2d 456.) III. Respondents’ failure to preserve documents in their control was at least grossly negligent. (VOOM HD Holdings LLC v EchoStar Satellite L.L.C., 93 AD3d 33; Ahroner v Israel Discount Bank of N.Y., 79 AD3d 481; Pension Comm. of Univ. of Montreal Pension Plan v Banc of Am. Sec., 685 F Supp 2d 456; Harry Weiss, Inc. v Moskowitz, 106 AD3d 668; County of Erie v Abbott Labs., Inc., 30 Misc 3d 837; 915 Broadway Assoc. LLC v Paul, Hastings, Janofsky & Walker, LLP, 34 Misc 3d 1229[A], 2012 NY Slip Op 50285 [U]; Sekisui Am. Corp. v Hart, 945 F Supp 2d 494; Hartford Ins. Co. v Holmes Protection Group, 250 AD2d 526; Campaign for Fiscal Equity v State of New York, 100 NY2d 893.) IV. Appellants have satisfied any modest burden they might have to prove the relevance of the vast, unknown quantity of documents they were prevented from accessing as a result of respondents’ failure to preserve them. (VOOM HD Holdings LLC v EchoStar Satellite L.L.C., 93 AD3d 33; Residential Funding Corp. v DeGeorge Fin. Corp., 306 F3d 99; Ahroner v Israel Discount Bank of N.Y., 79 AD3d 481; Sage Realty Corp. v Proskauer Rose, 275 AD2d 11; Santana v Castillo, 114 AD3d 621; Alleva v United Parcel Serv., Inc., 112 AD3d 543; New York City Hous. Auth. v Pro Quest Sec., Inc., 108 AD3d 471; Kronisch v United States, 150 F3d 112; Byrnie v Town of Cromwell, Bd. of Educ., 243 F3d 93.) V. The Appellate Division’s holding must be reversed because it misconstrued how the adverse-inference charge would affect the jury’s consideration of the merits and, in so doing, it effectively ruled that adverse inferences are unavailable, as a matter of law, to plaintiffs in alter-ego cases. (Matter of Morris v New York State Dept. of Taxation & Fin., 82 NY2d 135.)

      Simpson Thacker & Bartlett LLP, New York City (Thomas C. Rice, Roy L. Reardon and Isaac M. Rethy of counsel), and Brace-well & Giuliani LLP, New York City (Michael C. Hefter, Kelly Koscuiszka and David A. Shargel of counsel), for respondents.
    I. Legal standards: (a) the order of the Appellate Division is reviewed by the Court of Appeals for abuse of discretion, except to the extent it is premised on errors of law, in which case the Court of Appeals does not defer to it, and (b) under VOOM HD Holdings LLC v EchoStar Satellite L.L.C. (93 AD3d 33) a party seeking spoliation sanctions must prove (i) control and a duty to preserve; (ii) culpability; and (iii) relevance. (Andon v 302-

      304 Mott St. Assoc., 94 NY2d 740; Merrill Lynch, Pierce, Fenner & Smith, Inc. v Global Strat Inc., 22 NY3d 877; Mashreqbank PSC v Ahmed Hamad Al Gosaibi & Bros. Co., 23 NY3d 129; Ortega v City of New York, 9 NY3d 69; Residential Funding Corp. v DeGeorge Fin. Corp., 306 F3d 99.) II. The First Department correctly concluded that respondents were not grossly negligent. (Hartford Ins. Co. v Holmes Protection Group, 250 AD2d 526; Colnaghi, U.S.A. v Jewelers Protection Servs., 81 NY2d 821; Kalisch-Jarcho, Inc. v City of New York, 58 NY2d 377; Goldstein v Carnell Assoc., Inc., 74 AD3d 745; Pension Comm. of Univ. of Montreal Pension Plan v Banc of Am. Sec., 685 F Supp 2d 456; Merrill Lynch, Pierce, Fenner & Smith, Inc. v Global Strat Inc., 22 NY3d 877; Ortega v City of New York, 9 NY3d 69; Morris v Union Pac. R.R., 373 F3d 896; Those Certain Underwriters at Lloyds, London v Occidental Gems, Inc., 11 NY3d 843; Chin v Port Auth. of N.Y. & N.J., 685 F3d 135.) III. The Appellate Division correctly determined that appellants have not established prejudice. (Kavanagh v Ogden Allied Maintenance Corp., 92 NY2d 952; Hamilton v Miller, 23 NY3d 592; Pension Comm. of Univ. of Montreal Pension Plan v Banc of Am. Sec., 685 F Supp 2d 456; VOOM HD Holdings LLC v EchoStar Satellite L.L.C., 93 AD3d 33; Residential Funding Corp. v DeGeorge Fin. Corp., 306 F3d 99; Strong v City of New York, 112 AD3d 15; New York City Hous. Auth. v Pro Quest Sec., Inc., 108 AD3d 471; Alieva v United Parcel Serv., Inc., 112 AD3d 543; Sage Realty Corp. v Proskauer Rose, 275 AD2d 11; Santana v Castillo, 114 AD3d 621.)
   OPINION OF THE COURT

Pigott, J.

A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a “culpable state of mind,” and “that the destroyed evidence was relevant to the party’s claim or defense such that the trier of fact could find that the evidence would support that claim or defense” (VOOM HD Holdings LLC v EchoStar Satellite L.L.C., 93 AD3d 33, 45 [1st Dept 2012], quoting Zubulake v UBS Warburg LLC, 220 FRD 212, 220 [SD NY 2003]). Where the evidence is determined to have been intentionally or wilfully destroyed, the relevancy of the destroyed documents is presumed (see Zubulake, 220 FRD at 220). On the other hand, if the evidence is determined to have been negligently destroyed, the party seeking spoliation sanctions must establish that the destroyed documents were relevant to the party’s claim or defense (see id.).

On this appeal, we are asked to decide whether the Appellate Division erred in reversing an order of Supreme Court that imposed a spoliation sanction on the defendants. We hold that it did, and remand the matter to the trial court for a determination as to whether the evidence, which the Appellate Division found to be negligently destroyed, was relevant to the claims asserted against defendants and for the imposition of an appropriate sanction, should the trial court deem, in its discretion, that a sanction is warranted.

L

In 2005 and 2006, plaintiffs Pegasus Aviation I, Inc., Pegasus Aviation IV, Inc. and Pegasus Aviation V, Inc. (collectively, Pegasus) leased cargo planes to defendant Varig Logistica S.A. (VarigLog), a Brazilian air cargo company. Shortly thereafter, the MP defendants purchased VarigLog out of a Brazilian bankruptcy. In early 2007, a dispute arose between one of the MP defendants (MP Volo) and its Brazilian shareholders concerning the distribution of proceeds from the sale of one of VarigLog’s wholly-owned subsidiaries. In July 2007, the Brazilian shareholders denied the MP defendants access to VarigLog’s offices, and shareholder litigation ensued. The end result was that the MP defendants were, in effect, “frozen out” of VarigLog’s affairs from July 2007 until April 1, 2008, when a Brazilian court removed the three Brazilian shareholders and appointed MP Volo to “take over the administration and management” of VarigLog under the supervision of a judicial oversight committee.

During the shareholder litigation, and while the MP defendants were “frozen out” of VarigLog, VarigLog defaulted on its leases with Pegasus. In February 2008, Pegasus commenced litigation against only VarigLog in Florida state court for, among other things, breach of the lease agreements. Later, Pegasus voluntarily discontinued the Florida action and filed suit against both VarigLog and the MP defendants in New York County Supreme Court in October 2008. As relevant here, Pegasus sued VarigLog for breach of contract and conversion, and sought to hold the MP defendants liable for VarigLog’s conduct on an alter ego theory. In March 2009, VarigLog filed for bankruptcy. At all relevant times, VarigLog and the MP defendants were represented by separate counsel.

Pegasus served a notice to produce documents pursuant to CPLR 3120 that, as relevant here, sought electronically stored information (ESI) concerning Pegasus’s claims and VarigLog’s relationship with the MP defendants. VarigLog produced some documents in response, but that production was unsatisfactory to Pegasus, particularly with regard to the ESI.

Supreme Court appointed a discovery referee to assist Pegasus and VarigLog in resolving the dispute. During the first conference, which occurred in January 2010, counsel for VarigLog reported that VarigLog had experienced one or more computer “crashes” that impaired its ability to provide the requested ESI. VarigLog’s counsel later explained that between 2000 and 2008, VarigLog did not have a system of preserving emails, that emails were routinely stored on the computers of individual employees and that employee computers were returned empty when an employee left the company. Counsel also explained that beginning in March 2008, VarigLog had established a system whereby VarigLog’s ESI was backed up on a daily, weekly and monthly basis, but that computer crashes that occurred in February and March 2009 resulted in the loss of much of the ESI, and that data recovery efforts had proven unsuccessful.

Pegasus then moved for the imposition of sanctions against VarigLog and the MP defendants. It sought an order holding VarigLog in contempt for failing to comply with court orders, striking VarigLog’s answer, and imposing a trial adverse inference against the MP defendants for their failure to properly preserve electronic and paper records relevant to the action and within their control, albeit in the possession of their subsidiary, VarigLog. Pegasus argued that the MP defendants controlled VarigLog and therefore had a duty to impose a “litigation hold” to preserve certain VarigLog paper documents but failed to do so.

Supreme Court granted Pegasus’s motion, holding that VarigLog’s failure to issue a “litigation hold” amounted to gross negligence as a matter of law, such that the relevance of the missing ESI was presumed. Supreme Court also found that the MP defendants, having been charged by the Brazilian court with the duty to “manage” and “administer” VarigLog, were in “control” of VarigLog for purposes of putting a “litigation hold” into place to preserve the ESI, and their failure to do so amounted to gross negligence. The court therefore struck the answer of VarigLog and imposed a trial adverse inference sanction against the MP defendants with regard to ESI and paper records relevant to the action and within the MP defendants’ control. The MP defendants appealed the order of Supreme Court to the Appellate Division insofar as it granted Pegasus’s motion for a trial adverse inference instruction.

A divided Appellate Division reversed insofar as appealed from on the law and the facts and denied Pegasus’s motion for a trial adverse inference instruction (118 AD3d 428, 428 [1st Dept 2014]). The majority held that the record supported Supreme Court’s finding that the MP defendants had sufficient control over VarigLog so as to trigger a duty on their part to preserve the ESI, but that it could not be said that their “failure to discharge this duty was so egregious as to rise to the level of gross negligence” (id. at 432). It rejected Supreme Court’s holding that the MP defendants’ failure to institute a litigation hold amounted to gross negligence per se, and held that the facts of the case supported, at most, a finding of simple negligence (see id. at 432-434). Further, according to the majority, because Pegasus failed to prove that the lost ESI would have supported Pegasus’s claims, a trial adverse inference sanction could not stand (see id. at 435).

Justice Andrias concurred with the majority on the issue of the MP defendants’ control over VarigLog and their duty to preserve the ESI, and also agreed “that upon a contextual assessment of all pertinent facts” the MP defendants’ “failure to discharge [their] duty did not rise to the level of gross negligence” (id. at 436). However, in his view, because Supreme Court possessed the discretion to impose a spoliation sanction for negligent destruction of evidence, the matter should have been remanded to Supreme Court “for a determination as to the extent to which [Pegasus has] been prejudiced by the loss of the evidence, and the sanction, if any, that should be imposed” (id. at 436-437 [Andrias, J., concurring in part and dissenting in part]).

Justice Richter dissented in full, arguing that the MP defendants’ “failure to take any meaningful steps to preserve evidence constitute [d] gross negligence” and that the adverse inference sanction should be affirmed (id. at 438 [Richter, J., dissenting]). She based her determination not only on the fact that the MP defendants failed to initiate a litigation hold, but also “on a close review of the specific facts of th[e] case” (id. at 440).

The Appellate Division granted Pegasus’s motion for leave to appeal, and, in its certified question, asks this Court to determine whether the Appellate Division’s order, which reversed Supreme Court, was properly made (2014 NY Slip Op 90118 [U] [1st Dept 2014]). We answer that question in the negative.

IL

Our state trial courts possess broad discretion to provide proportionate relief to a party deprived of lost or destroyed evidence, including the preclusion of proof favorable to the spoliator to restore balance to the litigation, requiring the spoliator to pay costs to the injured party associated with the development of replacement evidence, or employing an adverse inference instruction at the trial of the action (see Ortega v City of New York, 9 NY3d 69, 76 [2007] [citations omitted]; CPLR 3126 [if a trial court determines that a party has destroyed evidence that “ought to have been disclosed . . . the court may make such orders with regard to the failure or refusal as are just”]).

Here, the order of the Appellate Division reversed the order of Supreme Court “on the law and the facts” (118 AD3d at 428). In its certified question to this Court, the Appellate Division certified that the “determination was made as a matter of law and not in the exercise of discretion.” However, we are not bound by the Appellate Division’s characterization in its certification order, and instead “look to see whether the Appellate Division’s decision, regardless of its characterization, nonetheless reflects a discretionary balancing of interests” (Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 745 [2000] [citations omitted]).

The trial court (which had presided over and supervised the discovery in the case for several years) and the Appellate Division reached different conclusions concerning the MP defendants’ level of negligence in failing to preserve the ESI. The trial court conducted a review of the facts, determined that the MP defendants exercised sufficient control over VarigLog, and held that the failure of the MP defendants to institute a litigation hold amounted to gross negligence. On appeal, all five Appellate Division Justices agreed with Supreme Court’s assessment that the MP defendants possessed “control” over VarigLog such that it had a duty to preserve the ESI, but the three-Justice majority found that “[t]he facts of this case” did not support a “finding of gross negligence” (118 AD3d at 432). A fourth Justice made a “contextual assessment of all pertinent facts” and reached the same conclusion (id. at 436 [Andrias, J., concurring in part and dissenting in part]). The dissenting Justice’s conclusion that the MP defendants were grossly negligent was “based on the unique facts of [the] case and the significant control [the MP defendants] had over VarigLog at the time this action was commenced” (id. at 440 [Richter, J., dissenting]). Thus, whether the MP defendants’ “culpable mental state” rose to the level of gross negligence, as opposed to ordinary negligence, constituted differing factual determinations by the trial court and the Appellate Division.

Where the Appellate Division reaches a factual conclusion different from that reached by the trial court, “the scope of our review is limited to determining whether the evidence of record . . . more nearly comports with the trial court’s findings or with those of the Appellate Division” (Friedman v State of New York, 67 NY2d 271, 284-285 [1986]). In our view, the record evidence comports more with the Appellate Division majority’s findings.

The trial court found that it was the lack of a litigation hold, and not the computer crashes themselves, that resulted in the destruction of the requested documents. However, the trial court incorrectly stated that the MP defendants were part of the Florida litigation, and that once they were, they were required to ensure that a litigation hold was in place, pointing to the fact that because the MP defendants were ordered by the Brazilian court to “manage and administer” VarigLog, the MP defendants were running VarigLog and therefore had the means of implementing a litigation hold. However, in this instance, the failure to institute a litigation hold did not amount to gross negligence per se, as the trial court held. Rather, a party’s failure to institute a litigation hold is but one factor that a trial court can consider in making a determination as to the alleged spoliator’s culpable state of mind.

In contrast to the trial court’s reasoning, the Appellate Division majority noted that Pegasus did not adduce evidence that any steps were taken to defeat the computer backup system in the months leading up to the crashes, nor did Pegasus claim that the MP defendants themselves caused the crashes. The Appellate Division majority considered a number of factors in reaching its ultimate holding that the MP defendants’ conduct in failing to preserve the ESI was not grossly negligent. Pertinent to that finding was the fact that VarigLog was represented by its own counsel when the MP defendants were brought into the litigation in April 2008, and there was no evidence that the MP defendants had reason to believe that VarigLog’s counsel was not providing VarigLog adequate advice concerning ESI preservation. Another factor relied on by the majority was that the MP defendants adequately responded to all of Pegasus’s discovery demands directed at them, thus negating any inference that the MP defendants were reckless concerning Pegasus’s demands made on them. Finally, the majority found that notwithstanding the fact that the MP defendants had exercised practical control over VarigLog, the record evidence indicated that VarigLog and the MP defendants were separate entities, with each possessing their own offices, staff, operations and computer systems.

These aforementioned facts substantiated the Appellate Division’s ultimate conclusion that, at most, the MP defendants’ failures amounted to “a finding of simple negligence” (118 AD3d at 432-433). The evidence in the record adequately comports with the Appellate Division majority’s holding.

On this record, we see no reason to disturb the unanimous finding of the lower courts that the MP defendants had sufficient control over VarigLog to trigger a duty on its part to preserve the ESI. Nor is there any basis to disturb the findings of fact by the Appellate Division that the MP defendants were negligent in failing to discharge that duty. The Appellate Division majority erred, however, to the extent that it determined that Pegasus had not attempted to make a showing of relevance (118 AD3d at 433 n 7) and chose to conduct its own analysis of the relevance issue without taking into account Pegasus’s arguments in that regard, which were contained in its appellate brief. Thus, although the Appellate Division possesses the authority to make findings of fact that is as broad as the trial court, in this instance, where it all but ignored Pegasus’s arguments concerning the relevance of the documents, we conclude that the prudent course of action is to remit the matter to Supreme Court for a determination as to whether the negligently destroyed ESI was relevant to Pegasus’s claims against the MP defendants and, if so, what sanction, if any, is warranted.

Finally, the Appellate Division erroneously stated that a trial adverse inference charge in an alter ego case such as this one would be “tantamount to granting [Pegasus] summary judgment” (118 AD3d at 436). Such adverse inference charges have been found to be appropriate even in situations where the evidence has been found to have been negligently destroyed (see e.g. Strong v City of New York, 112 AD3d 15, 22-24 [1st Dept 2013] [stating that adverse inference charge at trial “may be . . . appropriate” where the evidence was negligently destroyed]; Marotta v Hoy, 55 AD3d 1194, 1197 [3d Dept 2008] [holding that Supreme Court did not abuse its discretion in determining that the plaintiff was entitled to an adverse inference instruction as a sanction for negligent spoliation]; Tomasello v 64 Franklin, Inc., 45 AD3d 1287, 1288 [4th Dept 2007] [adverse inference charge appropriate sanction for negligent spoliation]). Contrary to the Appellate Division majority’s contention, a trial adverse inference sanction would not be akin to granting summary judgment to Pegasus on its alter ego claim, since such a charge is permissive and can be appropriately tailored by the trial court (see PJI 1:77; see also Gogos v Modell’s Sporting Goods, Inc., 87 AD3d 248, 255 [1st Dept 2011]).

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 and the certified question is answered in the negative.

Stein, J.

(dissenting). I respectfully dissent. The majority properly relies upon VOOM HD Holdings LLC v EchoStar Satellite L.L.C. (93 AD3d 33, 45 [1st Dept 2012]) for the proposition that a party seeking sanctions for spoliation of evidence must establish three facts: (1) that the party with control over the destroyed evidence had the obligation to preserve it; (2) that the evidence was destroyed with a culpable state of mind; and (3) that the evidence was relevant to — or, in other words, would have supported — the party’s claim. Like the majority, I conclude that the courts below correctly determined that the MatlinPatterson (MP) defendant firms and entities had sufficient control over Varig Logistica S.A. (VarigLog) to trigger a duty to preserve electronically stored information (ESI) and the computer hardware on which it was stored. However, I part ways with the majority over its determination that the MP defendants’ “culpable state of mind” amounted to, at most, simple negligence. I would hold that defendants acted with gross negligence in failing to preserve the ESI.

I further disagree with the majority’s view that relevance is not to be presumed because the evidence was not intentionally or wilfully destroyed. The majority endorses the conclusion of the First Department in VOOM and the case upon which it relies — Zubulake v UBS Warburg LLC (220 FRD 212, 220 [SD NY 2003]) — that, “[w]here the evidence is determined to have been intentionally or wilfully destroyed, the relevancy of the destroyed documents is presumed” (majority op at 547). However, the majority neglects to mention that VOOM further held that “destruction that is the result of gross negligence” also “is sufficient to presume relevance” (VOOM, 93 AD3d at 45). Inasmuch as, under VOOM, the MP defendants’ gross negligence gives rise to a presumption of relevancy, I would remit to the Appellate Division for consideration of whether, in its discretion, a sanction is warranted.

L

The basic facts are largely undisputed and reflected in the record as described by the majority. The MP defendants were “frozen out” of VarigLog’s affairs by Brazilian shareholders with whom they shared ownership of VarigLog’s parent corporation, Volo do Brasil, S.A. (VdB); during that time frame, VarigLog breached its aircraft lease agreements with plaintiffs, leading to the commencement of a now-discontinued Florida action and then this action. Prior to the commencement of this action, one of the MP defendants was granted authority over the “administration and management” of VarigLog by a Brazilian court. Thereafter, VarigLog suffered two computer crashes resulting in the loss of much of the ESI that plaintiffs sought in discovery. After the loss was disclosed, plaintiffs sought sanctions.

Supreme Court — which, as the majority notes, “had presided over and supervised the discovery in the case for several years” (majority op at 552) — determined that the MP defendants’ culpable state of mind amounted to gross negligence, warranting an adverse inference charge at trial. In contrast, the Appellate Division concluded that the record supported only a finding of ordinary negligence and not gross negligence (118 AD3d 428, 432-433 [1st Dept 2014]). Because the Appellate Division reversed the trial court’s factual determination in this regard, our review is limited to a consideration of “which court’s determination more closely comports with the evidence” (Glenbriar Co. v Lipsman, 5 NY3d 388, 392 [2005]). In my view, Supreme Court’s determination does so here.

While I concur with the majority’s basic outline of the underlying facts, I note that the following facts — which were omitted from the majority’s highly selective version — are also relevant to an analysis of which of the determinations below more closely comports with the record. Although the Brazilian shareholders nominally owned 80% of the voting stock in VdB, a Brazilian court concluded that they did not make any financial contribution and “were inserted into the company by [Volo Logistics LLC, an MP defendant (MP Volo)] ... to circumvent” Brazilian aviation law. The MP defendants not only owned an equity stake in VarigLog, but they also advanced capital to VarigLog in the form of loans. The dispute that led to the MP defendants being “frozen out” of VarigLog’s affairs in July 2007 arose when the Brazilian shareholders refused to authorize repayment of the MP defendants’ loans and instead transferred cash to bank accounts owned by VarigLog and located in Switzerland. MP Volo then sued VarigLog for breach of its obligations under the relevant loan agreement in New York, Switzerland and Brazil (see Volo Logistics LLC v Varig Logistica S.A., 51 AD3d 554 [1st Dept 2008]). The parties do not contest that it was as a result of this dispute that the Brazilian shareholders denied the MP defendants access to VarigLog’s offices and systems and prohibited the MP defendants from involvement in VarigLog’s business affairs from July 2007 until April 2008. In litigation commenced in Brazil by the Brazilian shareholders seeking invalidation of the shareholder agreement with the MP defendants, the Brazilian court found that the shareholders had used VarigLog funds during that time for their personal benefit, rather than for the company’s maintenance. It was also during that time frame that VarigLog began to breach its lease agreements with plaintiffs.

Ultimately, the Brazilian court excluded the Brazilian shareholders from having any role in the management and operations of VarigLog, and vested “administration and management” in MP Volo beginning April 1, 2008. MP Volo remained subject to judicial oversight until December 9, 2008, when the judicial administrators were relieved of any further duty to supervise and control MP Volo’s management and administration of VarigLog. Despite the judicial oversight, the Appellate Division, in affirming Supreme Court’s finding of the requisite control, stated that “it cannot be ignored that the MP defendants, as the sole shareholders of VarigLog at this time, selected VarigLog’s directors, and the record establishes that, during the period in question, employees and consultants of the MP defendants were closely monitoring VarigLog’s operations” (118 AD3d at 431 [emphasis added]).

Indeed, during the relevant time frame, Peter Miller, a former principal of defendant MatlinPatterson Global Advisers, LLC, was first president and then a member of VarigLog’s Board of Directors. Chan Lup Wai Ohira, the sister of an MP Volo director, Lap Chan, became president of VarigLog’s Board of Directors immediately after Miller and, from November 24, 2008 through at least October 19, 2011, she was the CEO of VarigLog. Miller was directly involved in the negotiations over the aircraft leases that are in dispute. In fact, he testified at his examination before trial that he told plaintiffs that their planes would be returned once the past-due amounts that VarigLog owed plaintiffs were settled — that is, Miller informed plaintiffs that reaching an agreement on any outstanding amounts that VarigLog owed plaintiffs under the leases was a prerequisite to the physical return of plaintiffs’ planes. Regarding the MP defendants’ day-to-day management of VarigLog, Miller also testified that Lap Chan led a team of MP defendant employees and consultants who worked at VarigLog, including an information technology (IT) consultant. Notably, although VarigLog maintained a separate computer system from the MP defendants, the IT consultant recommended that VarigLog’s IT operating costs be reduced by 60% within three to four months of MP Volo being imbued with authority over the management and administration of VarigLog. To be sure, as the majority states, VarigLog and the MP defendants were represented by separate counsel. However, it is undisputed that, once the MP defendants became responsible for the administration and management of VarigLog, they replaced VarigLog’s counsel, including in the prior New York action (Volo Logistics LLC v Varig Logistica S.A., 51 AD3d 554 [2008], supra).

Significantly, the computer crashes that resulted in the loss of the ESI at issue occurred on February 15, 2009 and March 24, 2009 — approximately 10 to 11 months after the MP defendants obtained control of VarigLog pursuant to the Brazilian court order, four to five months after this action commenced, several months after judicial oversight terminated, and shortly after plaintiff served VarigLog with its first set of requests for the production of documents. As noted by the dissenting Justice at the Appellate Division, it is undisputed that, even “after the first crash occurred, MP . . . took no additional action to ensure the preservation of data going forward” (118 AD3d at 439 [Richter, J., dissenting]). Rather, it hired a company that unsuccessfully attempted to recover the data, and then waited more than 10 months to disclose the fact that the crashes had occurred. Critically, while the MP defendants were “closely monitoring VarigLog’s operations” (118 AD3d at 431), VarigLog failed to maintain the affected disks and applications following the crashes. That is, this case involves not only a failure to preserve electronic data but, even more importantly, the failure to preserve the affected disks and applications involved in the crashes that plaintiffs could have had examined to determine if the ESI could be restored.

IL

As noted above, my primary disagreement with the majority centers on its analysis of the record evidence regarding the MP defendants’ culpable state of mind — i.e., the extent of their negligence. In concluding that the Appellate Division’s finding that defendant’s conduct constituted ordinary negligence, rather than gross negligence, more closely comports with the record, the majority fails to articulate what it actually means by the phrase “gross negligence.” In accordance with this Court’s traditional definition of gross negligence, the proper standard is “the failure to exercise even slight care,” and whether a party’s conduct amounts to gross negligence generally presents a factual question (Food Pageant v Consolidated Edison Co., 54 NY2d 167, 172 [1981]; see also Dalton v Hamilton Hotel Operating Co., 242 NY 481, 487 [1926]). Upon a complete review of the entire record before us, I conclude that the evidence more closely comports with a finding that the MP defendants failed to use even slight care — i.e., that they were grossly negligent.

While VarigLog’s obligations to preserve evidence may have arisen prior to the time the MP defendants acquired control of that company, the data losses in question occurred long after the MP defendants assumed management and administration of VarigLog. Moreover, once the MP defendants’ close monitoring of VarigLog’s operations commenced, Miller — an employee of the MP defendants — was directly involved in the unsuccessful negotiations between VarigLog and plaintiffs over the leases at issue. Nevertheless, although the MP defendants should have anticipated litigation with plaintiffs at that point, they failed to institute any litigation hold, as the majority concedes.

Furthermore, VarigLog may have had its own, separate computer systems and counsel, but once the MP defendants were authorized to manage VarigLog, their consultant sought to downsize VarigLog’s IT department and the MP defendants replaced VarigLog’s counsel with attorneys of their own choosing, one of whom admittedly failed to consider the possibility of a computer crash. The computer crashes occurred well after this action commenced, after discovery requests were made, and after judicial oversight of VarigLog had terminated. Thus, at the time of the first crash, the MP defendants were administering VarigLog without oversight, yet they took no steps thereafter to ensure the preservation of the remaining data that survived the first crash, despite the fact that litigation was ongoing. Most troubling of all, the hardware and software — the affected “disks and applications” — involved in the crashes were discarded after the second crash without any notice to plaintiffs, thereby “depriv[ing] [plaintiffs] of the opportunity to have their own expert examine the computer to determine if the deleted files could be restored” (Harry Weiss, Inc. v Moskowitz, 106 AD3d 668, 670 [1st Dept 2013]).

Regardless of whether the MP defendants responded to the discovery demands directed at them, the foregoing evidence more closely comports with the trial court’s finding that they were grossly negligent in their oversight of VarigLog’s discovery obligations {see id. at 669-670; see also AJ Holdings Group, LLC v IP Holdings, LLC, 129 AD3d 504, 505 [1st Dept 2015]; Ahroner v Israel Discount Bank of N.Y., 79 AD3d 481, 482 [1st Dept 2010]; see generally Dorchester Fin. Holdings Corp. v Banco BRJ S.A., 304 FRD 178, 182-184 [SD NY 2014]). Therefore, I would reverse the Appellate Division’s finding of ordinary negligence and reinstate the trial court’s finding regarding the level of negligence displayed. The MP defendants’ grossly negligent conduct gives rise to a rebuttable presumption that the spoliated evidence was relevant (see AJ Holdings, 129 AD3d at 505; VOOM, 93 AD3d at 45). Accordingly, inasmuch as the Appellate Division placed the burden on plaintiffs to demonstrate relevance when it should have placed the burden on the MP defendants to disprove it, I would remit to that Court for a determination of whether the MP defendants rebutted the presumption of relevance and, if not, for a discretionary determination of what sanction, if any, is warranted.

Although the issue of relevance should be revisited, I emphasize that it should be considered by the Appellate Division, rather than the trial court. I further take this opportunity to express my disagreement with the majority’s characterization of the Appellate Division’s analysis of relevance as having been performed “without taking into account [plaintiffs’] arguments in that regard, which were contained in [their] appellate brief” (majority op at 554). In my view, the Appellate Division properly considered plaintiffs’ arguments and concluded that plaintiffs incorrectly asserted that “the motion court found that the evidence established that the lost documents . . . were relevant” (118 AD3d at 435 n 9 [internal quotation marks omitted]). Although the Appellate Division correctly concluded that plaintiffs did not attempt to show relevance in the first instance — which would be their burden if the MP defendants’ conduct amounted only to ordinary negligence (see VOOM, 93 AD3d at 45) — plaintiffs argued in their appellate brief that the MP defendants failed to successfully rebut the presumption of relevance of several enumerated categories of documents, by showing how those documents were relevant. The Appellate Division expressly addressed and rejected plaintiffs’ arguments concerning the documents, performing a detailed analysis of the relevance of all of the enumerated categories of documents set forth in plaintiffs’ brief (118 AD3d at 433-434). Thus, I disagree with the majority’s claim — made in an apparent attempt to provide a rationale for remitting this case to the trial court, rather than the Appellate Division — that the Appellate Division “all but ignored [plaintiffs’] arguments” (majority op at 554). However, even if the Appellate Division did overlook plaintiffs’ arguments concerning relevance — which it plainly did not — the correct remedy would be a remittal to that Court, not to the trial court, for consideration of those arguments.

Chief Judge Lippman and Judges Abdus-Salaam and Fahey concur; Judge Stein dissents in an opinion in which Judge Rivera concurs.

Order reversed, with costs, case remitted to Supreme Court, New York County, for further proceedings in accordance with the opinion herein and certified question answered in the negative.

      . For purposes of background, the MP defendants consist of a group of commonly controlled New York-based firms and entities under their control. Defendants MatlinPatterson Global Advisers, LLC, MatlinPatterson Global Opportunities Partners II LP, and MatlinPatterson Global Opportunities Partners (Cayman) II LP formed defendant Volo Logistics LLC (MP Volo), a Delaware company that is a wholly-owned subsidiary of defendant Oskars Investments Ltd. MP Volo and three Brazilian shareholders/co-investors formed Volo do Brasil, S.A. (VdB), a Brazilian corporation, which purchased VarigLog out of a Brazilian bankruptcy proceeding in 2006. Brazilian aviation law requires that Brazilian citizens or entities must control at least 80% of the voting interest in a Brazilian airline and, as a result, the Brazilian shareholders controlled 80% of the voting interest in VdB while MP Volo owned the remaining 20%.

      . VarigLog did not appeal Supreme Court’s order and is not a party to this appeal.

      . Because the Appellate Division focused solely on the destruction of ESI and did not address the issue concerning the paper records, our analysis is similarly limited to the ESI evidence.

      . Our utilization of the word “control” for purposes of this opinion is solely in reference to the issue of whether the MP defendants possessed sufficient control over VarigLog so as to trigger a duty on the MP defendants’ part to see to it that VarigLog was preserving the ESI. At the trial of this action, Pegasus will still be required to meet all of the elements of its alter ego cause of action against the MP defendants.

      . Indeed, Pegasus made a motion to reargue addressing this error, and, rather than granting that motion, the Appellate Division granted Pegasus leave to appeal to this Court (2014 NY Slip Op 90118[U] [1st Dept 2014]).

      . Approximately three months after judicial oversight terminated, VarigLog filed for bankruptcy.

      . Although the majority concludes that “there was no evidence that the MP defendants had reason to believe that VarigLog’s counsel” — hired by the MP defendants — “was not providing VarigLog adequate advice concerning ESI preservation” (majority op at 553), any inquiry in that regard may have revealed cause for concern, given that counsel later conceded that he “did not discuss backing up existing electronic data that was being preserved . . . , nor did the possibility of a computer crash that might eradicate such data enter [his] thinking.”

      . In determining the MP defendants’ culpable state of mind, the Appellate Division defined “gross negligence” as “ ‘conduct that evinces a reckless disregard for the rights of others or smacks of intentional wrongdoing’ ” (118 AD3d at 433, quoting Hartford Ins. Co. v Holmes Protection Group, 250 AD2d 526, 527 [1st Dept 1998]). As plaintiffs argue, that definition was inapt because it was drawn from an unrelated context involving the rule that contractual waiver of liability for gross negligence is forbidden as a matter of public policy (see Hartford Ins. Co., 250 AD2d at 527; see also Abacus Fed. Sav. Bank v ADT Sec. Servs., Inc., 18 NY3d 675, 683 [2012]).

      . Although I believe that the majority has overlooked significant facts in the record that evince the MP defendants’ gross negligence, I agree that the trial court erred in concluding that the failure to institute a litigation hold amounts to gross negligence per se. Rather, “the failure to adopt good preservation practices [is but] one factor [to be considered] in the determination of whether discovery sanctions should issue” (Chin v Port Auth. of N.Y. & N.J., 685 F3d 135, 162 [2012] [internal quotation marks, brackets and citation omitted]).