source: Caselaw Access Project

author: FEINMAN, J. GARCIA, J. (dissenting).

license: Public Domain

text:
    Carlos RODRIGUEZ, Appellant, v. CITY OF NEW YORK, Respondent.
    No. 32
    Court of Appeals of New York.
    April 3, 2018
    Kelner & Kelner, Esqs., New York City (Joshua D. Kelner of counsel), for appellant.
    Zachary W. Carter, Corporation Counsel, New York City (Richard Dearing, Tahirih M. Sadrieh and Claude S. Platton of counsel), for respondent.
    Andrew Zajac, Rona L. Platt, Brendan T. Fitzpatrick and Lisa L. Gokhulsingh, Amicus Curiae Committee of the Defense Association of New York, Inc., and Heather Wiltshire Clement, Defense Association of New York, Inc., for Defense Association of New York, Inc., amicus curiae.
    OPINION OF THE COURT
   FEINMAN, J.

This appeal requires us to answer a question that has perplexed courts for some time: Whether a plaintiff is entitled to partial summary judgment on the issue of a defendant's liability, when, as here, defendant has arguably raised an issue of fact regarding plaintiff's comparative negligence. Stated differently, to obtain partial summary judgment in a comparative negligence case, must plaintiffs establish the absence of their own comparative negligence. We hold that a plaintiff does not bear that burden.

I.

Plaintiff Carlos Rodriguez was employed by the New York City Department of Sanitation (DOS) as a garage utility worker. He was injured while "outfitting" sanitation trucks with tire chains and plows to enable them to clear the streets of snow and ice. The following facts are uncontradicted: On a snowy winter day, plaintiff and his two coworkers were tasked with outfitting sanitation trucks with tire chains and plows at the Manhattan 5 facility. Typically, the driver backs the truck into one of the garage bays, and the driver and other members of the team "dress" the truck. One person acts as a guide, assisting the driver by providing directions through appropriate hand signals while standing on the passenger's side of the truck. Once the truck is safely parked in the garage, the driver, the guide, and the third member of the team (here, plaintiff) place chains on the truck's tires.

At the time of his accident, plaintiff was standing between the front of a parked Toyota Prius and a rack of tires outside of the garage bay while the driver began backing the sanitation truck into the garage. The guide, at some point, stood on the driver's side of the sanitation truck while directing the driver in violation of established DOS safety practices. The sanitation truck began skidding and eventually crashed into the front of the parked Toyota Prius, propelling the car into plaintiff and pinning him up against the rack of tires. Plaintiff was taken to the hospital and ultimately had to undergo spinal fusion surgery, a course of lumbar epidural steroid injections, and extensive physical therapy. He is permanently disabled from working. Plaintiff commenced this negligence action against the City of New York. After discovery, he moved for partial summary judgment on the issue of defendant's liability pursuant to CPLR 3212. Defendant opposed the motion and cross-moved for summary judgment in its favor. Supreme Court denied both motions. In denying plaintiff's motion for partial summary judgment, Supreme Court held that there were triable issues of fact regarding foreseeability, causation, and plaintiff's comparative negligence.

The Appellate Division, among other things, affirmed the denial of plaintiff's motion for partial summary judgment ( Rodriguez v. City of New York, 142 A.D.3d 778, 37 N.Y.S.3d 93 [1st Dept. 2016] ). The majority, relying on this Court's memorandum decision in Thoma v. Ronai, 82 N.Y.2d 736, 602 N.Y.S.2d 323, 621 N.E.2d 690 [1993] ), held that plaintiff was not entitled to partial summary judgment on the issue of liability, because he failed to make a prima facie showing that he was free of comparative negligence. The dissent, relying on the language and purpose of CPLR article 14-A, would have held that plaintiff does not bear the burden of disproving the affirmative defense of comparative negligence, and thus, plaintiff should have been granted partial summary judgment on the issue of defendant's liability (Rodriguez, 142 A.D.3d at 797, 37 N.Y.S.3d 93 [Acosta, J., dissenting] ).

The Appellate Division granted plaintiff leave to appeal to this Court (lv granted --- A.D.3d ----, 2016 N.Y. Slip. Op. 96039[U] [1st Dept. 2016] ), certifying the following question: "Was the order of Supreme Court, as affirmed by this Court, properly made?"

II.

Whether a plaintiff must demonstrate the absence of his or her own comparative negligence to be entitled to partial summary judgment as to a defendant's liability is a question of statutory construction of the CPLR. The usual rules of statutory construction apply to the provisions of the CPLR (see, e.g., Chianese v. Meier, 98 N.Y.2d 270, 275, 746 N.Y.S.2d 657, 774 N.E.2d 722 [2002] ). "In matters of statutory interpretation, our primary consideration is to discern and give effect to the Legislature's intention" ( Matter of Albany Law School v. New York State Off. of Mental Retardation & Dev. Disabilities, 19 N.Y.3d 106, 120, 945 N.Y.S.2d 613, 968 N.E.2d 967 [2012] ). We look "first to the plain language of the statute[ ] as the best evidence of legislative intent" ( Matter of Malta Town Ctr. I, Ltd. v. Town of Malta Bd. of Assessment Review, 3 N.Y.3d 563, 568, 789 N.Y.S.2d 80, 822 N.E.2d 331 [2004] ).

CPLR 3212, which governs summary judgment motions, provides that "[t]he motion shall be granted if ... the cause of action ... [is] established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party" ( CPLR 3212[b] ). The motion for summary judgment must also "show that there is no defense to the cause of action" (id. ). Further, subsection [c] of the same section sets forth the procedure for obtaining partial summary judgment and states that "[i]f it appears that the only triable issues of fact arising on a motion for summary judgment relate to the amount or extent of damages ... the court may, when appropriate for the expeditious disposition of the controversy, order an immediate trial of such issues of fact raised by the motion" ( CPLR 3212[c] ).

Article 14-A of the CPLR contains our State's codified comparative negligence principles. CPLR 1411 provides that

"[i]n any action to recover damages for personal injury, injury to property, or wrongful death, the culpable conduct attributable to the claimant or to the decedent, including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages." (Emphasis added.)

CPLR 1412 further states that "[c]ulpable conduct claimed in diminution of damages, in accordance with [ CPLR 1411 ], shall be an affirmative defense to be pleaded and proved by the party asserting the defense."

Placing the burden on the plaintiff to show an absence of comparative fault is inconsistent with the plain language of CPLR 1412. In 1975, New York adopted a system of pure comparative negligence, and, in so doing, directed courts to consider a plaintiff's comparative fault only when considering the amount of damages a defendant owes to plaintiff. The approach urged by defendant is therefore at odds with the plain language of CPLR 1412, because it flips the burden, requiring the plaintiff, instead of the defendant, to prove an absence of comparative fault in order to make out a prima facie case on the issue of defendant's liability.

Defendant's approach also defies the plain language of CPLR 1411, and, if adopted, would permit a possible windfall to defendants. CPLR 1411 explicitly provides that "[i]n any action to recover damages for personal injury ... the culpable conduct attributable to the [plaintiff] ... shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion ... attributable to the claimant." For example, assuming in a hypothetical case a defendant's negligence could be established as a matter of law because defendant's conduct was in violation of a statute (see PJI 2:26 ) and further assuming plaintiff was denied partial summary judgment on the issue of defendant's negligence because plaintiff failed to establish the absence of his or her own comparative negligence, the jury would be permitted to decide the question of whether defendant was negligent and whether defendant's negligence proximately caused plaintiff's injuries. If the jury answers in the negative on the question of defendant's negligence, the plaintiff would be barred from recovery even though defendant's negligence was established as a matter of law and in contradiction to the plain language of CPLR 1411. Such a windfall to a defendant would violate section 1411's mandate that a plaintiff's comparative negligence "shall not bar recovery" and should only go to the diminution of damages recoverable by plaintiff. Furthermore, it is no answer to this conundrum that the trial court could set aside the verdict. The whole purpose of partial summary judgment is to streamline and focus the factfinder on the issues that need resolution, and avoid having juries make findings that are contrary to law. Defendant's attempts to rely on CPLR 3212's plain language in support of its preferred approach are also unavailing. Specifically, defendant points to CPLR 3212(b), which provides; "[a] motion for summary judgment shall ... show that there is no defense to the cause of action." Defendant's approach would have us consider comparative fault a defense. But, comparative negligence is not a defense to the cause of action of negligence, because it is not a defense to any element (duty, breach, causation) of plaintiff's prima facie cause of action for negligence, and as CPLR 1411 plainly states, is not a bar to plaintiff's recovery, but rather a diminishment of the amount of damages.

The approach we adopt is also supported by the legislative history of article 14-A. (see Tompkins Cty. Support Collection Unit ex rel. Chamberlin v. Chamberlin, 99 N.Y.2d 328, 335, 756 N.Y.S.2d 115, 786 N.E.2d 14 [2003] ["[T]he legislative history of an enactment may also be relevant and is not to be ignored, even if words be clear."] (internal quotation marks and citations omitted] ). Article 14-A's enactment was proposed by the 1975 Judicial Conference of the State of New York (the Conference) in response to this Court's decision in Dole v. Dow Chemical Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 [1972] ), which first provided for the apportionment of negligent responsibility among joint tortfeasors. In proposing the section which later became CPLR 1411, the Conference specifically noted that neither the defense of contributory negligence or assumption of risk "shall continue to serve as complete defenses" in negligence actions (21st Ann Rep of N.Y. Jud Conf at 240). In proposing the section which became CPLR 1412, the Conference urged the adoption of the then-majority rule in this country, which provided that "in all negligence actions ... the defendant claiming contributory negligence of the plaintiff has the burden of showing it" (id. at 245). The Conference also observed that the "burden of pleading and burden of proof are usually parallel" and that "[t]his article may be viewed as having created a partial defense, the effect of which is to mitigate damages, and such defenses traditionally must be pleaded affirmatively" (id. at 246).

When article 14-A was proposed in the legislature, the Introducer's Memorandum before the New York Assembly noted that the then-current system of traditional contributory negligence had "become an obstacle to the dispensing of substantial justice" (Assembly Introducer's Mem in Support, Bill Jacket, L 1975, ch 69 at 5-7). The purpose of the law was to bring "New York law into conformity with the majority rule and represents the culmination of the gradual but persistent erosion of the rule that freedom from contributory negligence must be pleaded and proven by the plaintiff" (id., citing Rossman v. La Grega, 28 N.Y.2d 300, 304, 321 N.Y.S.2d 588, 270 N.E.2d 313 [1971] ). The legislative history of article 14-A makes clear that a plaintiff's comparative negligence is no longer a complete defense and its absence need not be pleaded and proved by the plaintiff, but rather is only relevant to the mitigation of plaintiff's damages and should be pleaded and proven by the defendant.

Resolution of the issue before us necessarily turns on the interpretation and interplay of these various CPLR provisions. In Thoma v. Ronai, 82 N.Y.2d 736, 602 N.Y.S.2d 323, 621 N.E.2d 690 [1993], this Court held that the plaintiff there did not meet her burden of demonstrating the absence of any material fact; "a factual question of her reasonable care" existed, and thus plaintiff was properly denied summary judgment ( id. at 737, 602 N.Y.S.2d 323, 621 N.E.2d 690 ). However, Thoma never addressed the precise question we now confront. The decision itself never considered the import of article 14-A, and a review of the briefs publicly filed in that case reveal that the plaintiff proceeded on the assumption that if a question of fact existed as to her negligence, summary judgment on the issue of liability would be denied. The plaintiff in Thoma, in her limited submissions to this Court, maintained that "[t]he crux of the case is the existence, as a matter of law, of any question of culpable conduct (contributory negligence) by the Plaintiff that would warrant the Trial Court's denial of summary judgment pursuant to C.P.L.R. § 3212 on the issue of Defendant's liability" ( Thoma, App's Br. at 1). Thus, to the extent that the Departments of the Appellate Division have interpreted Thoma as explicitly holding that a plaintiff must show an absence of comparative fault in order to obtain partial summary judgment on liability, such a reading of Thoma is mistaken (see Global Reinsurance Corp. v. Century Indemnity Co., 30 N.Y.3d 508, 517, 69 N.Y.S.3d 207, 91 N.E.3d 1186 [2017] ["(T)he Court's holding comprises only those 'statements of law which address issues which were presented to the (Court] ) for determination.' "], quoting Village of Kiryas Joel v. County of Orange, 144 A.D.3d 895, 900, 43 N.Y.S.3d 51 [2d Dept. 2016] ). On this appeal, plaintiff raises the issue not addressed in Thoma. Plaintiff contends, even assuming there is an issue of fact regarding his comparative fault, that he is entitled to partial summary judgment on the issue of defendant's liability. Defendant would have us follow the line of cases that hold that plaintiff bears the burden of disproving comparative fault as a component of establishing his prima facie entitlement to partial summary judgment on the issue of defendant's liability. Defendant points to various instances of plaintiff's conduct in this case and asserts that plaintiff was comparatively negligent. We agree with plaintiff that to obtain partial summary judgment on defendant's liability he does not have to demonstrate the absence of his own comparative fault.

We also reject defendant's contention that granting the plaintiff partial summary judgment on defendant's liability serves no practical purpose. A principal rationale of partial summary judgment is to narrow the number of issues presented to the jury (see Janos v. Peck, 21 A.D.2d 529, 531 [1964], affd 15 N.Y.2d 509, 254 N.Y.S.2d 115, 202 N.E.2d 560 [1964] ). In a typical comparative negligence trial, the jury is asked to answer five questions:

1. Was the defendant negligent?
2. Was defendant's negligence a substantial factor in causing [the injury or the accident]?
3. Was plaintiff negligent?
4. Was plaintiff's negligence a substantial factor in causing (his or her) own injuries?
5. What was the percentage of fault of the defendant and what was the percentage of fault of the plaintiff?

( PJI 2:36 ). Where plaintiff has already established defendant's liability as a matter of law, granting plaintiff partial judgment eliminates the first two questions submitted to the jury, thereby serving the beneficial purpose of focusing the jury on questions and issues that are in dispute.

Nor do we agree with defendant that what it characterizes as bifurcation of the issues of defendant's liability from plaintiff's liability runs counter to the Pattern Jury Instructions. When a defendant's liability is established as a matter of law before trial, the jury must still determine whether the plaintiff was negligent and whether such negligence was a substantial factor in causing plaintiff's injuries. If so, the comparative fault of each party is then apportioned by the jury. Therefore, the jury is still tasked with considering the plaintiff's and defendant's culpability together. As a practical matter, a trial court will instruct the jury in a modified version of Pattern Jury Instruction 1:2B that the issue of defendant's negligence, and in some cases, the related proximate cause question, have been previously determined as a matter of law. Trial courts are experienced in crafting such instructions, for example when liability has already been determined in a bifurcated trial, or when an Appellate Division upholds a liability determination and remands solely for a recalculation of damages, or a trial on damages has been ordered pursuant to CPLR 3212(c).

III.

To be entitled to partial summary judgment a plaintiff does not bear the double burden of establishing a prima facie case of defendant's liability and the absence of his or her own comparative fault. Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and the case remitted to the Appellate Division for consideration of issues raised but not determined on the appeal to that Court and the certified question answered in the negative.

GARCIA, J. (dissenting).

The majority holds that plaintiff's motion for partial summary judgment on liability was improperly denied, notwithstanding issues of fact as to plaintiff's comparative negligence. We disagree. The rule has been, and should remain, that a plaintiff must demonstrate the absence of issues of fact concerning both defendant's negligence and its own comparative fault in order to obtain summary judgment (see Thoma v. Ronai, 82 N.Y.2d 736, 602 N.Y.S.2d 323, 621 N.E.2d 690 [1993] ).

Plaintiff's injury occurred while he was working in a New York City Department of Sanitation garage, as he and his colleagues outfitted sanitation trucks with tire chains and a plow in order to clear snow and ice from the City streets. With the storm ongoing, plaintiff's colleagues were backing a truck into the Department's garage bay when the truck slid several feet and hit a parked car, which skidded forward and hit plaintiff.

Supreme Court rejected both parties' summary judgment motions. In rejecting plaintiff's motion, the court found that there were triable issues of fact as to the City's liability, specifically with respect to causation and foreseeability, as well as plaintiff's comparative fault. The court noted that "[f]oreseeability questions are generally left for the fact finder to resolve"

(citing Derdiarian v. Felix Constr. Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666 [1980] ) and that numerous issues of fact remained concerning causation. In addition, the court found that even if defendant's liability was established, "plaintiff would not be entitled to summary judgment as to liability since the question of his comparative fault must be resolved at trial."

The Appellate Division upheld Supreme Court's finding of triable issues concerning defendant's negligence. After reviewing the facts, the Appellate Division held that "[u]nder this factual scenario, the trier of fact could determine that defendant was free from negligence and that plaintiff was 100% at fault in causing his injuries" (142 A.D.3d 778, 781, 37 N.Y.S.3d 93 [1st Dept. 2016] [emphasis added] ). The majority dismisses this aspect of the Appellate Division's holding as a "passing reference," and, without explanation, determines that this statement "is not offered as an evaluation of the merits of defendant's alternative argument" (majority op. at 317 n. 2, 76 N.Y.S.3d at 900 n. 2, 101 N.E.3d at 368 n. 2). Here, where the holding of two lower courts calls into question plaintiff's demonstration of defendant's liability as a matter of law, the majority's summary dismissal of this issue is inadequate. In any event, as discussed below, the fact that the City was found to have created an issue of fact as to any liability on its part highlights the unreasonableness of the majority's approach.

Even assuming plaintiff demonstrated the City's liability as a matter of law, our case law requires, as the Appellate Division majority held, that plaintiff's motion for summary judgment be denied. In Thoma v. Ronai, the Appellate Division denied summary judgment to plaintiff, a pedestrian struck by a car while "lawfully in [a] crosswalk," finding that although plaintiff's "comparative negligence may be found by a jury to be minimal, or even zero ... the record does not support our finding a total absence of negligence as a matter of law" ( 189 A.D.2d 635, 635-636, 592 N.Y.S.2d 333 [1st Dep't 1993] ). This Court affirmed, holding that plaintiff was not entitled to summary judgment because "she did not satisfy her burden of demonstrating the absence of any material issue of fact," namely the "factual question of her reasonable care" ( 82 N.Y.2d 736, 737, 602 N.Y.S.2d 323, 621 N.E.2d 690 [1993] ). The majority rejects Thoma 's holding because it does not explicitly "address[ ] [the relevant] CPLR provisions" and presumes that it "never considered the import of article 14-A" (majority op. at 321-322, 76 N.Y.S.3d at 903-04, 101 N.E.3d at 371-72). But this questionable assessment of the Thoma holding is undermined by later case law. In Sammis v. Nassau/Suffolk Football League, we reiterated the Thoma rule, denying partial summary judgment to plaintiff because "[o]n this record, there exist issues of fact as to comparative fault for a factfinder to consider pursuant to CPLR 1411" ( 95 N.Y.2d 809, 810, 710 N.Y.S.2d 834, 732 N.E.2d 941 [2000] ). More recently, we reviewed a decision of the Appellate Division that, in granting plaintiff's summary judgment motion, attempted to distinguish Thoma because "plaintiffs established that the defendant driver was negligent and that the injured plaintiff was free from comparative fault" ( Castiglione v. Kruse, 130 A.D.3d 957, 958, 15 N.Y.S.3d 360 [2d Dep't 2015] ). The dissent, in rejecting summary judgment, asserted that the majority "fail[ed] to correctly apply controlling precedent from the Court of Appeals," namely Thoma 's assessment of a pedestrian's comparative negligence in failing to "look to the sides" while crossing the street ( id. at 960-61, 15 N.Y.S.3d 360 [Dillon, J, dissenting] ). We reversed, holding that "triable questions of fact preclude summary judgment in plaintiffs' favor" ( Castiglione v. Kruse, 27 N.Y.3d 1018, 1019, 32 N.Y.S.3d 579, 52 N.E.3d 243 [2016] ). The rule set out is clear, and speculation as to what the Court "considered"-or in other words, the suggestion that we did not mean what we said-does not mask the fact that the majority is overruling this line of cases.

Accordingly, the issue of whether a plaintiff is entitled to summary judgment without showing freedom from comparative fault is settled, and the Appellate Division Departments have, for the most part, been applying that precedent. Since Thoma, each Department has held that a plaintiff is precluded from obtaining summary judgment where issues of fact exist concerning comparative fault (see e.g. Piscitello v. Fortress Trucking, Ltd., 118 A.D.3d 1441, 988 N.Y.S.2d 784 [4th Dept. 2014] ; Calcano v. Rodriguez, 91 A.D.3d 468, 936 N.Y.S.2d 185 [1st Dept. 2012] ; Roman v. A1 Limousine, 76 A.D.3d 552, 907 N.Y.S.2d 251 [2d Dept. 2010] ; Rigney v. Ichabod Crane Cent. School Dist., 59 A.D.3d 842, 874 N.Y.S.2d 280 [3d Dept. 2009] ). Moreover, in other contexts, each Department has ruled that a plaintiff has the burden of demonstrating the absence of issues of fact as to affirmative defenses to obtain summary judgment (see e.g. Morley Maples, Inc. v. Dryden Mut. Ins. Co., 130 A.D.3d 1413, 14 N.Y.S.3d 579 [3d Dept. 2015] ; Ahmad v. City of NY, 129 A.D.3d 443, 444, 11 N.Y.S.3d 27 [1st Dept. 2015] ; Jessabell Realty Corp. v. Gonzales, 117 A.D.3d 908, 909, 985 N.Y.S.2d 897 [2d Dept. 2014] ; Birt v. Ratka, 39 A.D.3d 1238, 1239, 835 N.Y.S.2d 781 [4th Dept. 2007] ). Conversely, the majority's approach, granting summary judgment without eliminating issues of fact concerning plaintiff's comparative fault, has only been taken by a minority of judges in the First Department ( Gonzalez v. ARC Interior Constr., 83 A.D.3d 418, 921 N.Y.S.2d 33 [1st Dept. 2011] ; Tselebis v. Ryder Truck Rental, 72 A.D.3d 198, 895 N.Y.S.2d 389 [1st Dept. 2010] ; Strauss v. Billig, 78 A.D.3d 415, 909 N.Y.S.2d 724 [1st Dept. 2010] ), and has been expressly rejected within the First Department since those cases (see Calcano, 91 A.D.3d at 469, 936 N.Y.S.2d 185 ["Although this Court departed from the Thoma holding in Tselebis ... we respectfully decline to follow Tselebis "] ).

Similarly, the legislature is under the impression that Thoma is the applicable rule and has declined to change it. Attempts have been made to amend the comparative fault statute to place on a defendant opposing summary judgment "the burden of interposing proof of culpable conduct" (see S. 20572017-2018 Reg Sess [NY 2017]; S 7779/2016-2017 Reg Sess [NY 2016]; see also A. 2776, Memorandum in Support of Legislation [2017-2018] [proposing amendment to impose on defendant at summary judgment the burden of producing enough evidence of plaintiff's comparative fault to raise a genuine issue of fact] ). Such attempts at legislative reform would be unnecessary if plaintiffs were entitled to summary judgment despite the existence of issues of fact concerning comparative fault. As defendant points out, these proposed bills would still preclude summary judgment where "defendant presents evidence of plaintiff's comparative fault sufficient to raise a question of fact" after a plaintiff has demonstrated defendant's liability as a matter of law (see Assembly Mem. in Support, H 2776 [2017] ). The majority's approach goes well beyond these proposals, enabling a plaintiff to obtain summary judgment even where, as happened here, a defendant has demonstrated that plaintiff's comparative fault may be significant.

The Thoma rule, denying summary judgment where there are triable issues concerning comparative fault, is not only the established rule, it is the fairer outcome. We have previously held that comparative fault must be analyzed from a holistic perspective (see Arbegast v. Board of Educ., 65 N.Y.2d 161, 168-169, 490 N.Y.S.2d 751, 480 N.E.2d 365 [1985] [the comparative fault analysis requires a court to consider "the culpable conduct attributable to the (plaintiff as) compared with the total culpable conduct which caused the damages" and to "fix the relationship of each party's conduct to the injury sustained"] ). Determinations of degrees of fault should be made as a whole, and assessing one party's fault with a preconceived idea of the other party's liability is inherently unfair; or, as the Appellate Division characterized it, a defendant would "enter[ ] the batter's box with two strikes already called" (142 A.D.3d at 782, 37 N.Y.S.3d 93). Indeed, as the Appellate Division also noted, the Pattern Jury Instructions advise that a jury consider both parties' liability together (see PJI 2:36 ). This is because the issues of defendant's liability and plaintiff's comparative fault are intertwined. A jury cannot fairly and properly assess plaintiff's comparative fault without considering defendant's actions (see e.g. Siegel, Practice Commentaries C 3212:24 [noting that "(n)o purpose (is) served by the granting of summary judgment" where "the proof that would go into the damages question substantially overlaps that on which liability depends"] ). The facts of this case-which two courts have found created an issue of fact as to any liability on the part of defendant-highlight the unfairness of the majority's new rule (see e.g. Ugarriza v. Schmieder, 46 N.Y.2d 471, 474-475, 414 N.Y.S.2d 304, 386 N.E.2d 1324 [1979] ["Negligence cases by their very nature do not usually lend themselves to summary judgment, since often, even if all parties are in agreement as to the underlying facts, the very question of negligence is itself a question for jury determination"] ).

Simultaneous consideration by the jury of both parties' level of culpability is also the more practical approach. Indeed, "few, if any, litigation efficiencies are achieved by the entry of partial summary judgment in this context because the defendant would still be entitled, at trial, to present an all-out case on the plaintiff's culpable conduct" (Vincent C. Alexander, Practice Commentaries, McKinney's Cons.Laws of NY, Book 7B C1412). In the event that plaintiff obtained partial summary judgment without removing issues of comparative fault, a jury would still be required to assess plaintiff's degree of liability, and then make a damages determination in a subsequent proceeding. Such an inefficient approach would dispose of any benefits to be gained in granting partial summary judgment (see e.g. E.B. Metal & Rubber Indus. v. County of Washington, 102 A.D.2d 599, 602-603, 479 N.Y.S.2d 794 [3d Dept. 1984] ["Granting plaintiffs' motions (for partial summary judgment) would be illusory and would spare neither the court's nor the litigants' time and effort. The issue of plaintiffs' comparative negligence would still need to be resolved, which resolution would require a comparison of the parties' culpable conduct"] ). The majority promotes its approach by pointing to the "eliminat[ion]" of the first two questions a jury must answer in a "typical comparative negligence trial" (majority op. at 324, 76 N.Y.S.3d at 905, 101 N.E.3d at 373). But these questions would not be eliminated by a grant of partial summary judgment, as an assessment of defendant's negligence would be required in order for the jury to determine comparative fault and damages.

Nor is our approach barred by the statutory language of CPLR article 14-A. Requiring a plaintiff to show freedom from comparative fault in advance of obtaining summary judgment does not "bar recovery" in derogation of article 14-A. Before the enactment of Article 14-A, a plaintiff was unable to obtain recovery of any sort where he or she was in any way culpable ( Fitzpatrick v. Int'l. Ry. Co., 252 N.Y. 127, 133-34, 169 N.E. 112 [1929] ["At common law a person has no cause of action for negligence, if he himself has contributed, in the slightest degree, to bring it about"] ). Article 14-A enables a plaintiff to recover despite comparative fault (see Arbegast, 65 N.Y.2d at 167, 490 N.Y.S.2d 751, 480 N.E.2d 365 [article 14-A "permit(s) partial recovery in cases in which the conduct of each party is culpable"] ). It does not mandate that courts grant partial summary judgment on liability to plaintiffs who are comparatively at fault, as the majority's approach would require. The comparative fault statute simply provides that a plaintiff is entitled to recover a certain amount of damages, to be determined by a jury, even in cases where plaintiff has engaged in some degree of culpable conduct. This requires that each party's culpability be assessed and liability determined before judgment is granted (see id. at 168, 490 N.Y.S.2d 751, 480 N.E.2d 365 ["(W)hat the statute requires comparison of is not negligence but conduct which, for whatever reason, the law deems blameworthy, in order to fix the relationship of each party's conduct to the injury sustained and the damages to be paid by the one and received by the other as recompense for that injury"] ). The majority repeatedly speaks to the "double burden" our approach would place on defendant. But there is no unfair tipping of the scales. Plaintiff in his moving papers made a blanket assertion of freedom from any comparative negligence and defendant, in response, came forward with extensive evidence of plaintiff's comparative fault. Plaintiff's burden was merely that placed on any party moving for summary judgment-to demonstrate a lack of triable issues of fact. In that, plaintiff failed.

Order, insofar as appealed from, reversed, with costs, case remitted to the Appellate Division, First Department, for consideration of issues raised but not determined on the appeal to that Court and certified question answered in the negative.

Judges Rivera, Fahey and Wilson concur. Judge Garcia dissents in an opinion in which Chief Judge DiFiore and Judge Stein concur.

      Defendant moved for summary judgment on the ground that an employee cannot recover for injuries sustained while doing an assigned job, the purpose of which is to eliminate the cause of the injury. However, Supreme Court disagreed and held that defendant was not entitled to dismissal of the complaint, because contrary to defendant's assertion, "the danger of being knocked down by a skidding sanitation vehicle is not an ordinary and obvious hazard of plaintiff's employment," nor is it "inherent in the work of a sanitation worker" (Rodriguez v. City of New York, 2014 WL 10726797, at *2 [Sup. Ct., N.Y. County, Oct. 16, 2014, No. 109444/2011, Freed, J.] ). The propriety of this ruling is not before us as defendant did not cross-appeal Supreme Court's order.

      Defendant additionally argues that material issues of fact exist as to its negligence, which bar plaintiff from obtaining partial summary judgment. We do not reach this issue.
      The Appellate Division began its analysis by framing the sole issue for resolution as "whether a plaintiff seeking summary judgment on the issue of liability must establish, as a matter of law, that he or she is free from comparative fault" (Rodriguez, 142 A.D.3d at 778, 37 N.Y.S.3d 93). To be sure, Supreme Court addressed the issue of defendant's negligence and agreed with defendant that there are questions of fact as to foreseeability and causation. We do not read the Appellate Division's majority decision as reaching the merits of whether there is any question of fact as to defendant's negligence. Both the majority and dissenting opinions at the Appellate Division framed their resolution of this appeal as turning on whether plaintiff bore the burden of proving the absence of comparative negligence. Although the majority's five-page decision contains one sentence that makes a passing reference to defendant's negligence, it is utilized to distinguish a prior case on the issue of comparative negligence as a bar to summary judgment and is not offered as an evaluation of the merits of defendant's alternative argument.

      Various commentators have pointed out this inconsistency. The late Professor David Siegel, a preeminent expert in New York civil practice, has referred to the approach defendant proposes as "peculiar," for it "imposes on the plaintiff the burden of establishing ... freedom from comparative fault even though by statute that's a burden of both pleading and proof borne by the defendant under the specific terms of CPLR 1412" (Siegel, N.Y. Prac § 280 [5th ed 2011, Jan. 2013 Update] ).
      Professor Patrick Connors similarly notes:
      "CPLR 1412 and the standards of summary judgment appear to require that defendant tender sufficient evidence to support the affirmative defense on the facts of the case. Requiring the plaintiff moving for partial summary judgment on liability to affirmatively establish complete freedom from comparative fault, while allow defendant to simply contend that plaintiff has committed at least some culpable conduct, appears to tilt the scales too favorably for the defendant" (Patrick M. Connors, Can Comparative Fault Stop the Train Known as Summary Judgment?, NYLJ, Jan. 16, 2013 at 2).
      Finally, John R. Higgitt writes in the Practice Commentaries to CPLR 3212 that the approach favored by Siegel and Connors, which he refers to as the "Siegel approach," has appeal for at least two reasons. First, he notes:
      "CPLR 1411's language suggests that a plaintiff seeking partial summary judgment on the issue of the defendant's liability should not have the burden of showing her freedom of comparative fault ... If a plaintiff's comparative fault 'shall not bar recovery' but merely diminishes her damages award, then it would seem that the plaintiff should not be required to prove her freedom from comparative fault as a precondition to obtaining partial summary judgment on the issue of the defendant's liability" (John R. Higgitt, Practice Commentaries, McKinney's Cons Laws of NY, CPLR C3212:15).
      Secondly, he contends that "the Siegel approach provides for harmony between the substantive law of torts and the rules of decision on a plaintiff's motion for partial summary judgment" (id. ). Higgitt writes:
      "A plaintiff is entitled to recover damages in a negligence action if she demonstrates that a defendant's negligence was "a" proximate cause of the plaintiff's injuries, i.e., that the defendant's negligence was one, not necessarily the only, substantial factor in causing the injuries. Thus, a plaintiff's right of recovery arises on her showing that the defendant was negligent and that the defendant's negligence was a proximate cause of the plaintiff's injuries, and any comparative fault on the plaintiff's part will merely diminish the damages award. Under the present rule reflected in the decisions of the First and Second Departments, a plaintiff seeking partial summary judgment on the issue of the defendant's liability is required to prove her freedom from comparative fault. That doesn't seem to jibe with the rule of substantive law providing that a plaintiff is entitled to recover once she establishes that the defendant was negligent and that the defendant's negligence was a proximate cause of the plaintiff's injuries" (id. [citation omitted] ).

      The dissent points to recently proposed amendments to CPLR 1412, explicitly pronouncing that the party asserting the defense of comparative negligence must interpose proof of such culpable conduct when asserting the defense on a motion for summary judgment, to contend that the Legislature is "under the impression" that Thoma is the correct and currently binding rule (see dissenting op. at 328, 76 N.Y.S.3d at 908, 101 N.E.3d at 376, citing S.2057/2017-2018 Reg Sess [NY 2017]; S7779/2016-2017 Reg Sess [NY 2016]; 2017 A.2776 [2017] ). However, "we have often been reluctant to ascribe persuasive significance to legislative inaction" (Desrosiers v. Perry Ellis Menswear, LLC, 30 N.Y.3d 488, 491, 90 N.E.3d 1262 [2017], quoting Boreali v. Axelrod, 71 N.Y.2d 1, 13, 523 N.Y.S.2d 464, 517 N.E.2d 1350 [1987] ; see also Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S. 633, 650, 110 S.Ct. 2668, 110 L.Ed.2d 579 [1990] ["Congressional inaction lacks persuasive significance because several equally tenable inferences may be drawn from such inaction, including the inference that the existing legislation already incorporated the offered change."] ). While at times, we have construed legislative inaction "to be some manifestation of legislative approbation" of a lower's court's interpretation of a particular statute, that is only the case in "instances in which the legislative inactivity has continued in the face of a prevailing statutory construction" (Brooklyn Union Gas Co. v. New York State Human Rights Appeal Bd., 41 N.Y.2d 84, 90, 390 N.Y.S.2d 884, 359 N.E.2d 393 [1976] ). That is not the case here, where the Appellate Division Departments have struggled to adopt a universal interpretation.

      The dissenters question our assessment of Thoma and assert that our interpretation is "undermined by later case law" (dissent op. at 326, 76 N.Y.S.3d at 907, 101 N.E.3d at 375). The dissent maintains that in our memorandum decision in Sammis v. Nassau/Suffolk Football League, 95 N.Y.2d 809, 810, 710 N.Y.S.2d 834, 732 N.E.2d 941 [2000] ), and summary reversal in Castiglione v. Kruse, 27 N.Y.3d 1018, 1019, 32 N.Y.S.3d 579, 52 N.E.3d 243, reargument denied, 28 N.Y.3d 941, 38 N.Y.S.3d 509, 60 N.E.3d 403 [2016], we reaffirmed the purported procedural rule created by Thoma. Notably missing from either of those decisions is any discussion or even citation to Thoma. In fact, it appears this Court has never cited Thoma for any proposition whatsoever. Neither Sammis or Castiglione addressed whether the CPLR requires plaintiffs to show an absence of comparative fault in order to obtain partial summary judgment on the issue of liability. Further, while we reversed the Appellate Division in Castiglione, holding that "triable questions of fact precluded summary judgment in plaintiff's favor," it is not at all clear whether such questions of fact related to comparative negligence, the defendant's negligence, or some other issue related to liability. Contrary to the dissenters' view, neither Thoma nor these subsequent decisions created a procedural rule placing the burden on plaintiffs to show an absence of comparative fault in order to obtain partial summary judgment on the issue of defendant's liability.
      It bears noting that initially courts did not even treat Thoma as creating a new rule requiring that plaintiffs show an absence of comparative negligence in order to obtain partial summary judgment on the issue of a defendant's liability. Indeed, at least in the First Department, a majority of the appellate decisions initially refrained from putting such a burden on plaintiffs even after Thoma (see, e.g., Pace v. Robinson, 88 A.D.3d 530, 930 N.Y.S.2d 581 [1st Dept. 2011] ); Gonzalez v. Arc Interior Const., 83 A.D.3d 418, 921 N.Y.S.2d 33 [1st Dept. 2011] ; Strauss v. Billig, 78 A.D.3d 415, 909 N.Y.S.2d 724 [1st Dept. 2010] ; Tselebis v. Ryder Truck Rental, Inc., 72 A.D.3d 198, 895 N.Y.S.2d 389 [1st Dept. 2010] ). These decisions reasoned, as articulated in Tselebis, that placing the burden on plaintiffs to show freedom from comparative negligence as a component of their prima facie showing on summary judgment "cannot be reconciled" with CPLR 1411 and 1412"if the statute[s][are] to be given effect" (Tselebis, 72 A.D.3d at 200, 895 N.Y.S.2d 389 ).
      However, in Roman v. A1 Limousine, Inc., 76 A.D.3d 552, 907 N.Y.S.2d 251 [2d Dept. 2010] ), the Second Department parted company with the First Department. That court explicitly read Thoma as creating such a procedural rule, and held that "plaintiff's motion for summary judgment on the issue of liability was properly denied where plaintiff's submissions failed to eliminate a triable issue of fact regarding her comparative negligence" (id. at 553, 907 N.Y.S.2d 251 ). Since Roman, the clear majority (but not all) of Second Department cases have relied on Thoma as answering this issue, and have placed the "double burden" on plaintiffs to not only prove the defendant's prima facie negligence as a matter of law, but also prove their own absence of comparative negligence as a matter of law in order to obtain partial summary judgment on the issue liability.
      After Roman, the First Department began to reconsider its holding in Tselebis, but it appears to remain sharply divided internally over the issue (see, e.g., Calcano v. Rodriguez, 91 A.D.3d 468, 936 N.Y.S.2d 185 [1st Dept. 2012, Catterson, J., concurring];Maniscalco v. New York City Transit Auth., 95 A.D.3d 510, 943 N.Y.S.2d 486 [1st Dept. 2012, DeGrasse, J., dissenting];Capuano v. Tishman Constr. Corp., 98 A.D.3d 848, 950 N.Y.S.2d 517 [1st Dept. 2012, Acosta, J., concurring] ); Geralds v. Damiano, 128 A.D.3d 550, 10 N.Y.S.3d 38 [1st Dept. 2015, Moskowitz, J., dissenting] ). The Fourth Department recently held in Simoneit v. Mark Cerrone, Inc., 122 A.D.3d 1246, 996 N.Y.S.2d 810 [4th Dept. 2014] ), that a plaintiff was entitled to partial summary judgment on the issue of defendant's liability, notwithstanding unresolved questions of fact regarding the plaintiff's comparative fault (see id. at 1248, 996 N.Y.S.2d 810 ).

      The majority "do[es] not reach" the issue of whether plaintiff demonstrated defendant's negligence as a matter of law (majority 316 n. 2, 76 N.Y.S.3d at 900 n. 2, 101 N.E.3d at 368 n. 2). In fact, this question is a preserved issue of law. The majority asserts that the Appellate Division "fram[ed as] the sole issue for resolution" the question "whether a plaintiff seeking summary judgment on the issue of liability must establish, as a matter of law, that he or she is free from comparative fault" (id. at 900 n. 2, 101 N.E.3d at 368 n.2). This is not correct. The Appellate Division certified the question "was the order of Supreme Court, as affirmed by this Court, properly made?" Accordingly, Supreme Court's ruling that plaintiff did not demonstrate defendant's negligence as a matter of law, and the Appellate Division's affirmance on that issue, is properly before us.

      This approach has been partially followed in the Fourth Department, with some courts granting partial summary judgment on defendant's breach of the duty of care, but leaving for the jury the question of proximate cause (Simoneit v. Mark Cerrone, Inc., 122 A.D.3d 1246, 1248, 996 N.Y.S.2d 810 [4th Dept. 2014] ).

      The majority cites Desrosiers v. Perry Ellis Menswear, LLC, 30 N.Y.3d 488, 497, 68 N.Y.S.3d 391, 90 N.E.3d 1262 [2017] ) for the principle that "we have often been reluctant to ascribe persuasive significance to legislative inaction," but more relevant language follows, distinguishing
      "instances in which the legislative inactivity has continued in the face of a prevailing statutory construction.... Stated another way, it is a recognized principle that where a statute has been interpreted by the courts, the continued use of the same language by the Legislature subsequent to the judicial interpretation is indicative that the legislative intent has been correctly ascertained" (id. [internal citations and quotation marks omitted] ).
      This is particularly true where " 'the Legislature, with presumed knowledge of the judicial construction of a statute, foregoes specific invitations and requests to amend its provisions to effect a different result' " (id., quoting Alonzo M. v. New York City Dept. of Probations, 72 N.Y.2d 662, 667, 536 N.Y.S.2d 26, 532 N.E.2d 1254 [1988] ). Here, the legislative history in support of these amendments specifically refers to our prior determination and provides that "this amendment would not overrule Thoma " (A. 2776, Memorandum in Support of Legislation [2017-2018] ).


author: WILSON, J.

text:
    In the Matter of FMC CORPORATION, Respondent, v. NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, Appellant.
    No. 41
    Court of Appeals of New York.
    May 1, 2018
    Eric T. Schneiderman, Attorney General, Albany (Frederick A. Brodie, Barbara D. Underwood, Andrea Oser and Maureen F. Leary of counsel), for appellant.
    Greenberg Traurig, LLP, Philadelphia, Pennsylvania (David G. Mandelbaum, of the Pennsylvania bar, admitted pro hac vice, and Caleb J. Holmes of counsel), and Hodgson Russ, LLP, Buffalo (Julia M. Hilliker and Rick W. Kennedy of counsel), for respondent.
    OPINION OF THE COURT
   WILSON, J.

The Appellate Division held that neither title 9 nor title 13 of article 27 of the Environmental Conservation Law authorized respondent Department of Environmental Conservation (DEC) to unilaterally remediate the significant threat posed by hazardous wastes petitioner FMC Corporation (FMC) had released onto neighboring properties. We conclude that the Appellate Division erred in foreclosing the possibility that title 9 authorized DEC's unilateral action and that the interpretation of title 13 adopted by both parties authorized DEC's unilateral remediation effort. We therefore reverse the Appellate Division's order and dismiss FMC's CPLR article 78 petition.

I. Background

FMC owns and operates a 103-acre pesticide production facility in Niagara County. Over nearly a century of operation, that facility has released significant quantities of hazardous wastes including arsenic, lead, cyanide, acetone, DDT, and carbofuran. Many of those wastes have migrated onto adjacent properties including a school, recreational watercourses, croplands, and several hundred residences. FMC continues to store hazardous wastes and to formulate pesticides on the site.

DEC's substantial involvement with the facility dates back to 1980 and proceeds under two separate titles of article 27 of the Environmental Conservation Law. In that year, FMC initiated a permit application process with DEC and the U.S. Environmental Protection Agency (EPA) under title 9, which regulates the active generation, storage, and disposal of hazardous wastes and under its federal counterpart, the Resource Conservation and Recovery Act ( 42 USC § 6901 et seq. [RCRA] ). Thirty-eight years later, that process has not yet resulted in a permit; instead, the facility has operated all that time on interim status. Also in 1980, DEC listed a portion of the facility on the New York Registry of inactive hazardous waste sites under title 13, which regulates those inactive sites. DEC later substantially expanded the boundaries of the Registry listing and classified the facility as one posing a "[s]ignificant threat to the public health or environment-action required" ( ECL § 27-1305[2][b][2] ).

The title 9 permitting process requires applicants to undertake corrective actions for all releases of hazardous waste ( ECL § 27-0913 ). As part of that process, FMC entered into a 1991 consent order with DEC and the EPA that required it to undertake a variety of obligations, including the preparation of a corrective measures study. The 1991 order did not require FMC to undertake a particular corrective measure. Instead, it contemplated that the EPA, which later delegated its authority to DEC, would use the study prepared by FMC to help inform its selection of a final corrective measure. In 2013, DEC adopted a final corrective measure- CMA 9 -in a lengthy Final Statement of Basis laying out the reasons for its decision. CMA 9 applies to three parcels of properties adjacent to the FMC facility: a schoolyard, a culvert, and a residential neighborhood. FMC, in its corrective measures study, proposed eight different options for remediation, labelled CMAs 1 through 8. DEC found that none of FMC's proposals sufficiently ameliorated the threat posed by FMC's releases of hazardous wastes, and created CMA 9 by combining CMAs 2 and 8. For the following year, DEC attempted to negotiate a new consent order obligating FMC to implement CMA 9. When those negotiations failed, DEC announced it would undertake the corrective measure itself and seek to recover its associated expenses from FMC after the fact. FMC filed this article 78 petition contesting DEC's decision.

In its petition, FMC asserted four causes of action. The first two, which the Appellate Division rejected, made essentially procedural objections to DEC's Statement of Basis, claiming it should have been promulgated pursuant to the federal Resource Conservation and Recovery Act instead of the New York Environmental Conservation Law and that DEC had denied FMC recourse to the dispute resolution mechanisms contained in the 1991 order. The fourth, which the Appellate Division did not reach, alleged that DEC's selection of CMA 9 instead of any of the eight alternatives FMC had suggested was arbitrary and capricious. FMC does not pursue any of those causes of action here.

FMC's arguments are limited to its third cause of action, which alleges that that DEC's decision to implement CMA 9 unilaterally, rather than through FMC, was arbitrary and capricious. The Appellate Division, after reversing Supreme Court's order dismissing the petition as untimely, held that DEC's decision to implement CMA 9 itself was arbitrary and capricious, and granted FMC's petition on that basis ( Matter of FMC Corp. v. NYS DEC, 143 A.D.3d 1128, 1135, 40 N.Y.S.3d 220 [3rd Dept. 2016] ). It later granted DEC's motion for permission to appeal to this Court ( Matter of FMC Corp. v. NYS DEC, 2017 WL 509845 [3d Dept. 2017] ).

II. Discussion

The parties agree that DEC had several options through which it could have sought an order requiring FMC to undertake CMA 9 (see e.g. ECL § 27-1313[3][a] ; id. § 71-2727). They also agree that those options would have provided FMC with the opportunity for a hearing prior to the implementation of that corrective measure, whereas DEC's decision to conduct the remediation itself left FMC with only two avenues for challenging DEC's decision: this CPLR article 78 proceeding and any cost recovery action DEC may bring under our Environmental Conservation Law or the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) (see ECL §§ 71-2705 et seq. ; id. § 71-2723; 42 U.S.C. § 9607 [a][4][A] ). Finally, they agree that there are circumstances under which titles 9 and 13 authorize DEC to undertake the corrective measure itself, without first providing FMC-which is not being ordered to take any action or to suffer any activity on its property-with the opportunity for a hearing. This case turns on whether either of those circumstances is present.

A. Title 9

Title 9 regulates hazardous wastes "now being generated and sites now being used for disposal of such wastes" (L 1979 c 282 § 1). It requires any person generating, transporting, treating, storing, or disposing of hazardous wastes to obtain a permit to do so ( ECL § 27-0913[1][a] ). Although new facilities are required to obtain permits before commencing operation, certain legacy operators doing business at the time of the title's effective date can continue operating during a period of interim status pending the final disposition of their permit applications ( id. § 27-0913[1][b] ; 6 NYCRR 373-1.3 ). Interim status "is a temporary measure designed to phase existing facilities into compliance with permit requirements'' ( 6 NYCRR 373-1.3 [a] ). As such, it is "conditioned upon compliance with performance standards" set forth at length in 6 NYCRR 373-3.1 through 3.31 and may be "modified, suspended or revoked in a manner similar to a permit" (id. ). However, it "shall not be deemed to be a permit" ( ECL § 27-0913 [1 ][b] ). Permittees and prospective permittees, including those operating under interim status, may be ordered to undertake "corrective action, including corrective action beyond the facility boundary where necessary to protect human health and the environment, for all releases of hazardous waste" ( id. § 27-0913 [1 ]; see id. § 71-2727 [3] ).

The permitting scheme is augmented by DEC's authority to seek substantial civil and criminal penalties against violators and by its having the funds and flexibility required to clean up violations. Section 27-0914 prohibits "possess[ing] ... dispos[ing] of ... [or] deal[ing] in hazardous wastes without authorization." Title 71 contains the penalties for doing so, which can include fines and damages payable to the state superfund (id. § 71-2705; id. § 71-2723). Section 27-0916 authorizes DEC to use that superfund "to clean up or return to its original state any area where hazardous wastes were disposed, possessed or dealt in unlawfully in violation of section 27-0914." Nothing in the Environmental Conservation Law or the superfund statute requires DEC to defer its own use of superfund money to clean up a hazardous waste site until it has first ordered a violator of title 9 to take corrective action or provided that violator with a hearing. All DEC must do to unilaterally remediate a site, and to use superfund monies to do so, is determine that section 27-0914's terms were violated.

Here, DEC maintains that it was authorized to undertake CMA 9 because FMC had unlawfully disposed of hazardous waste, including through a number of releases between 1980 and the present. The Appellate Division disagreed. Instead, it held, FMC was "operating lawfully pursuant to its 'interim status' " "at all relevant times" ( FMC Corp., 143 A.D.3d at 1134, 40 N.Y.S.3d 220 ).

The conclusion that an entity with a permit or permission to operate under interim status cannot, as a matter of law, violate section 27-0914 was error. That section prohibits possessing, disposing of, or dealing in hazardous wastes "without authorization." "Authorization" means "the possession... of a valid license, permit or certificate ... or an order issued by the commissioner ... regarding the possession or release of hazardous... wastes ... or otherwise engaging in conduct which is exempt under applicable statutes, rules or regulations from the requirements of possessing such a license, permit, certificate or order" ( ECL § 71-2702[3] ). Although the Appellate Division understood the mere possession of a permit or its analog to authorize behavior of any kind, the more natural understanding is that the possession of a permit authorizes a person to possess, dispose of, or deal in hazardous wastes only in accordance with the terms of that permit. That interpretation is supported by the legislative history, including by a memorandum from DEC (one of title 9's principal drafters) that describes the law as defining "authorization" to mean not merely possessing a permit, but "acting pursuant to permit authority" (Bill Jacket, L 1981 c 719 at 26). In contrast, the Appellate Division's interpretation would-for instance-allow an operator who had a permit to transport hazardous wastes to a treatment facility but chose to instead dump those wastes into a stream or field to escape being convicted under section 27-0914 and thus bearing the costs of remediation under section 71-2723; prevent DEC from remediating violations, however imminently dangerous, caused by a permittee who willfully contravened the terms of its permit and refused to perform the cleanup itself; and, when applied to several of article 71's felony provisions, which share a definition of "authorization" with section 27-0914, free permittees to deal unlawfully in hazardous wastes (see e.g. ECL § 71-2717 ). The only reasonable interpretation consistent with the statutory scheme and legislative purpose is that permittees and prospective permittees who exceed the terms of their permit or violate the performance standards required of those operating under interim status violate section 27-0914.

Although FMC's interim status did not provide it a safe harbor, a reversal of the Appellate Division on that point would merely present the central question: did DEC demonstrate a basis for finding that FMC released hazardous wastes in violation of section 27-0914? Perhaps recognizing the fragility of the Appellate Division's interpretation, FMC now argues that sections 27-0914 and 27-0916, which were enacted in 1981, apply only prospectively. In addition to that legal dispute over at what point disposals became unlawful under section 27-0914, there is a dispute as to what if any hazardous wastes contaminated the relevant properties after that point. The resolution of those disputes governs not only whether DEC may act, but also to what extent; under title 9, DEC is authorized to return areas only to "the reasonably ascertainable condition of the property immediately prior to the unlawful act or if impracticable to determine such condition ... to a reasonably sound environmental condition" (id. § 27-0916 [1] ).

Were title 9 DEC's only avenue of recourse, those disputes would have to be resolved. However, it is usually not our function to evaluate the sufficiency of such evidence in the first instance. Here, DEC also relied upon title 13, to which we now turn.

B. Title 13

Unlike title 9, which regulates working industrial facilities, title 13 concerns inactive hazardous waste disposal sites. Remedial programs-title 13's equivalent to title 9's corrective actions-at those sites are governed by section 27-1313. That section authorizes DEC to order the owners, operators, or other parties responsible for an inactive hazardous waste disposal site constituting a significant threat to the environment to design and implement a DEC-approved remedial program ( ECL § 27-1313[3][a] ). FMC is such an owner/operator. Orders may be issued only after parties who may be subject to them are afforded notice and an opportunity for a hearing ( id. § 27-1313 [4 ] ).

Although the section evidences the legislature's preference for using a post-hearing order to "place the burden of remedying these sites on those responsible for the presence of waste material," it also authorizes DEC to develop and implement remedial programs "in the event the responsible party [is] unknown, unable or unwilling to ameliorate the situation" ( New York State Superfund Coal., Inc. v. NYS DEC, 18 N.Y.3d 289, 292-93, 938 N.Y.S.2d 266, 961 N.E.2d 657 [2011] ). In its petition and throughout the course of this litigation, FMC reads the section to describe four independent circumstances in which unilateral agency action would be appropriate:(a) "whenever a person ordered to eliminate a threat to the environment ... has failed to do so within the time limits specified in the order"; (b) "in the event that the commissioner ... is either unable to determine who may be responsible, or is unable to locate a person who may be responsible"; (c) "whenever the commissioner has made findings [of imminent danger] pursuant to [paragraph (3)(b) ]"; and (d) "if, in the discretion of the department, it is cost-effective for the department to develop and implement such a remedial program" ( ECL § 27-1313[5][a]-[d] ). In other words, FMC contends, and DEC agrees, that subdivision (5)(d) authorizes unilateral action in every case where DEC determines that action is cost-effective. Because both parties adopt that view of the statute, we have no occasion to consider the propriety of their interpretation (cf. 6 NYCRR 375-2.11 [c][1][i][c] ). Under the parties' interpretation of ECL § 27-1313(5)(d), DEC was authorized to implement CMA 9 itself, without first ordering FMC to do so or providing a hearing. "[I]t is settled that in a proceeding seeking judicial review of administrative action, the court ... must ascertain only whether there is a rational basis for the decision or whether it is arbitrary and capricious" ( Flacke v. Onondaga Landfill Sys., Inc., 69 N.Y.2d 355, 363, 514 N.Y.S.2d 689, 507 N.E.2d 282 [1987] ). Although agencies are sometimes required to state that basis, subdivision (5)(d) not only entrusts cost-effectiveness determinations to the "discretion of the [D]epartment" but also declines-unlike other paragraphs of the same section-to require DEC to substantiate its findings in writing ( ECL § 27-1313 [5 ][d]; cf. id. § 27-1313[3][b] ).

DEC's cost-effectiveness determination can be broken into two analytically separate pieces: the choice of CMA 9 and the choice to proceed unilaterally. FMC no longer contests that DEC's Final Statement of Basis demonstrated CMA 9 was a cost-effective alternative to CMAs 1 through 8.

Thus, the sole outstanding question is whether DEC determined that unilaterally implementing CMA 9 was a cost-effective alternative to ordering FMC to proceed. FMC is correct that the Final Statement of Basis, which was issued before DEC chose to proceed unilaterally, does not address that question. However, DEC's decision to proceed unilaterally demonstrates it determined that path was cost-effective. Subdivision (5)(d) exempts DEC from having to reduce the grounds for that determination to writing and, other than a conclusory allegation that private action is always cheaper than public action, FMC has proffered nothing under the four statutory factors or otherwise to contradict the presumption that DEC's action was reasonable under the circumstances. DEC's year-long unsuccessful negotiations to obtain FMC's agreement to perform the work provides record evidence that relying on FMC was not a cost-effective alternative for performing CMA 9 -indeed, FMC refused to do so. Thus, under the parties' interpretation of section 27-1313(5)(d), DEC had the authority to implement the remedial program itself.

Having established that title 13 provides an avenue for DEC to use the state superfund to unilaterally remediate the relevant properties, it remains only for DEC to establish that it met the additional conditions imposed by the state superfund statute. When proceeding under title 13-although not when proceeding under title 9-that statute requires DEC, absent exigent circumstances, to have first made "all reasonable efforts to secure voluntary agreement to pay the costs of necessary remedial actions from owners" ( State Finance Law § 97-b[4] ). "Voluntary agreement" requires something less than a section 27-1313(4) order and hearing, which may not be voluntary at all. Here, DEC's conducting a year of negotiations only to be told that FMC cannot see any mutually-agreed upon path forward is more than the statute requires. The statute's other requirement-that DEC later make "all reasonable efforts to recover the full amount of any funds expended" ( id. § 97-b[6] )-will be fulfilled in a CERCLA cost recovery action in federal district court. That action will provide FMC with an opportunity for a hearing to dispute its liability, as DEC has repeatedly acknowledged throughout the course of this proceeding.

Accordingly, the order, insofar as appealed from, should be reversed, with costs, the petition dismissed, and the certified question answered in the affirmative.

Order, insofar as appealed from, reversed, with costs, petition dismissed and certified question answered in the affirmative.

Chief Judge DiFiore and Judges Rivera, Stein, Fahey and Feinman concur. Judge Garcia took no part.

      Although interim status "shall not be deemed to be a permit" and is not granted by way of "an order issued by the commissioner", conduct in compliance with the performance standards for interim status is "exempt ... from the requirements of possessing" a permit (ECL § 27-0913[1][b] ; id. § 71-2702[3] ; see also id. § 71-2720 [1] ).

      FMC does not dispute that any "prospective" release of hazardous wastes would violate the performance standards governing interim status. However, it is not clear what "prospectively" means. The sections may apply to violations that occurred after the relevant regulations were promulgated or after either the specific sections or the title generally were enacted. They may also apply (as the contemporary definition of "authorization" would suggest) to violations of requirements "set forth in statute, rule, or regulation", including statutes such as RCRA or the Clean Water Act that predate title 9 (L 1981 c 719 § 12)-or, in light of the sweeping corrective actions title 9 authorizes DEC to order, to violations that would have sounded in nuisance or trespass at the common law and are now codified in the straightforward restrictions of section 27-0914. Guides to how best to interpret the sections may be found in our statutes, including title 9's interplay with title 13's careful scheme for legacy sites, in their legislative history, and in their federal counterparts, but we do not attempt to resolve that question here, because it is unnecessary to our decision and scantily briefed by the parties.

      Subdivision (3)(b), added to the section at the same time as subdivision (5)(c) and (5)(d), sets forth the test used to determine whether exigent circumstances authorize DEC to proceed unilaterally and without a hearing. It applies when DEC finds, in writing, that there exists not only the significant threat to the environment required by subdivision (3)(a) but also that the threat in question "presents an imminent danger of causing irreversible or irreparable damage to the environment and ... makes it prejudicial to the public interest to delay action until a hearing can be held." It also applies when the Department of Health makes analogous findings regarding imminent dangers to life or health.

      Although we have no cause to speculate as any additional ground(s) on which DEC alighted, it may have determined its costs were cheaper than FMC's; or that FMC's costs were irrelevant in light of its refusal to implement the program; or that DEC expected to recoup its costs in a CERCLA proceeding and determined those litigation expenses would be less than the expense of litigating a section 27-1313 order; or that the costs of remediating after a lengthy hearing would exceed the costs of remediating now; or that any additional costs incurred in a DEC-led cleanup were justified by remediating a significant threat to life and health and the environment years earlier than the order-and-hearing alternative would allow.

      FMC's April 24, 2014 email to DEC concluded, "FMC does not see a mutually agreeable path forward to allow us to proceed with signing a new agreement ... Accordingly, we are considering dispute resolution options."


text:
    LOBELLO v. NEW YORK CENT. MUT. FIRE INS. CO.
    Court of Appeals of New York.
    Decided January 30, 2018
    4th Dept: 152 AD3d 1206
    Appeal withdrawn.


text:
    MERY v. EGINGER
    Court of Appeals of New York.
    Decided January 8, 2018
    Appeal dismissed.


text:
    Matter of WORD v. ODORISI
    Court of Appeals of New York.
    Decided January 8, 2018
    Appeal dismissed.


author: Rivera, J.

text:
    PEOPLE v. AQUERO (Roberto)
    Court of Appeals of New York.
    January 10, 2018
   Rivera, J.

Applications in Criminal Cases for Leave to Appeal Denied


author: Stein, J.

text:
    PEOPLE v. CAMACHO (Paulino)
    Court of Appeals of New York.
    January 10, 2018
   Stein, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. BEACHUM (Kenneth)
    Court of Appeals of New York.
    January 9, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (Garcia, J.)


author: Garcia, J.

text:
    PEOPLE v. BUTERA (Joshua)
    Court of Appeals of New York.
    January 9, 2018
   Garcia, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. COACHMAN (Curtis)
    Court of Appeals of New York.
    January 9, 2018
   Garcia, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. CHAZBANI (Tomer)
    Court of Appeals of New York.
    January 9, 2018
   Stein, J.

Applications in Criminal Cases for Leave to Appeal Denied


author: DiFiore, J.

text:
    PEOPLE v. BEST (Bridget)
    Court of Appeals of New York.
    January 8, 2018
   DiFiore, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. ALFARO (William)
    Court of Appeals of New York.
    January 8, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (Stein, J.)


text:
    PEOPLE v. BROWN (Dewayne)
    Court of Appeals of New York.
    January 2, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (Garcia, J.)


text:
    PEOPLE v. ANAKA (Eziafa)
    Court of Appeals of New York.
    January 2, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (Stein, J.)


author: Wilson, J.

text:
    PEOPLE v. ARPI (Pablo)
    Court of Appeals of New York.
    January 31, 2018
   Wilson, J.

Applications in Criminal Cases for Leave to Appeal Dismissed


author: ( Wilson, J.)

text:
    PEOPLE v. BRAITHWAITE (Jason)
    Court of Appeals of New York.
    January 30, 2018
   ( Wilson, J.)

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. ALONSO (Natalia)
    Court of Appeals of New York.
    January 29, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (Fahey, J.)


text:
    PEOPLE v. BURNETT (Michael)
    Court of Appeals of New York.
    January 17, 2018
   DiFiore, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. C.
    Court of Appeals of New York.
    Decided January 17, 2018
    DiFiore, Ch. J.
    denied reconsideration


text:
    PEOPLE v. BERRIAN (Lenard)
    Court of Appeals of New York.
    January 15, 2018
   Rivera, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. BOYD (Tyreik)
    Court of Appeals of New York.
    January 15, 2018
   Rivera, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. COLON (Eladio)
    Court of Appeals of New York.
    January 15, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (Rivera, J.)


text:
    PEOPLE v. BUTLER (Bernard) aka Faulks (Bernard)
    Court of Appeals of New York.
    January 11, 2018
   Wilson, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. CURTIS (Michael)
    Court of Appeals of New York.
    January 17, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (DiFiore, J.)


text:
    PEOPLE v. DEJESUS (Jorge)
    Court of Appeals of New York.
    January 15, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (Rivera, J.)


text:
    PEOPLE v. D'ATTORE (Gaetano)
    Court of Appeals of New York.
    January 11, 2018
    Applications in Criminal Cases for Leave to Appeal Denied Reconsideration (Wilson, J.)


text:
    PEOPLE v. FAULKS (Bernard)
    Court of Appeals of New York.
    January 11, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (Wilson, J.)


text:
    PEOPLE v. DAY (Patrick)
    Court of Appeals of New York.
    January 10, 2018
   DiFiore, J.

Applications in Criminal Cases for Leave to Appeal Dismissed


text:
    PEOPLE v. CORDERO (Cirito)
    Court of Appeals of New York.
    January 10, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (Feinman, J.)


text:
    PEOPLE v. COOPER (Rondale)
    Court of Appeals of New York.
    January 9, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (Garcia, J.)


text:
    PEOPLE v. COOPER (RONDALE)
    Court of Appeals of New York.
    January 9, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (Garcia, J.)


text:
    PEOPLE v. FLEMING (John)
    Court of Appeals of New York.
    January 8, 2018
   Stein, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. FINSTER (Francis)
    Court of Appeals of New York.
    January 8, 2018
    Applications in Criminal Cases for Leave to Appeal Dismissed (Stein, J.)


text:
    PEOPLE v. FERRER (Rogelio)
    Court of Appeals of New York.
    January 31, 2018
   Wilson, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. DIVALENTINO (Anthony)
    Court of Appeals of New York.
    January 4, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (Stein, J.)


text:
    PEOPLE v. CYGANIK (Alexander)
    Court of Appeals of New York.
    January 3, 2018
   Stein, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. DIAZ (Ruben)
    Court of Appeals of New York.
    January 2, 2018
   Stein, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. CUNNINGHAM (Kareem)
    Court of Appeals of New York.
    January 2, 2018
   Garcia, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. FORDE (Norris)
    Court of Appeals of New York.
    January 2, 2018
   Stein, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. FRANCO (Joseph)
    Court of Appeals of New York.
    January 31, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (Garcia, J.)


text:
    PEOPLE v. FAWZI (Nabil)
    Court of Appeals of New York.
    January 31, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (Fahey, J.)


text:
    PEOPLE v. DIAZ (Luis)
    Court of Appeals of New York.
    January 31, 2018
   Garcia, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. CONTRERAS (Pablo)
    Court of Appeals of New York.
    January 30, 2018
   Wilson, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. FLOWERS (Joe)
    Court of Appeals of New York.
    January 30, 2018
   Wilson, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. COURTEAU (Jessica)
    Court of Appeals of New York.
    January 30, 2018
   DiFiore, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. FIORETTI (David)
    Court of Appeals of New York.
    January 29, 2018
   Wilson, J.

Applications in Criminal Cases for Leave to Appeal Denied


author: Fahey, J.

text:
    PEOPLE v. DIABATE (Mady)
    Court of Appeals of New York.
    January 18, 2018
   Fahey, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. HAWKINS (Master)
    Court of Appeals of New York.
    January 29, 2018
   Fahey, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. HODGES (Darius)
    Court of Appeals of New York.
    January 24, 2018
   DiFiore, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. GARCIA (Alejandro)
    Court of Appeals of New York.
    January 18, 2018
   Fahey, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. HEYLIGER (Derek)
    Court of Appeals of New York.
    January 18, 2018
   Fahey, J.

Applications in Criminal Cases for Leave to Appeal Dismissed


text:
    PEOPLE v. GARNES (Javann)
    Court of Appeals of New York.
    January 18, 2018
   Fahey, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. HOLLOWAY (Tarell)
    Court of Appeals of New York.
    January 18, 2018
   Fahey, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. HODGE (Crown)
    Court of Appeals of New York.
    January 18, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (Fahey, J.)


text:
    PEOPLE v. HERRERA (Angel)
    Court of Appeals of New York.
    January 18, 2018
   Fahey, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. HANSEN (Nicholas)
    Court of Appeals of New York.
    January 18, 2018
   Fahey, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. HOWARD (Gerald)
    Court of Appeals of New York.
    January 15, 2018
   Rivera, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. HENDERSON (Curtis)
    Court of Appeals of New York.
    January 31, 2018
   Wilson, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. HERNANDEZ (Jose)
    Court of Appeals of New York.
    January 15, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (Rivera, J.)


text:
    PEOPLE v. GIACCHI (Joseph)
    Court of Appeals of New York.
    January 11, 2018
   Wilson, J.

Applications in Criminal Cases for Leave to Appeal Denied


author: Feinman, J.

text:
    PEOPLE v. HERNANDEZ (Romel)
    Court of Appeals of New York.
    January 11, 2018
   Feinman, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. FRANZESE (Edward)
    Court of Appeals of New York.
    January 11, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (Feinman, J.)


text:
    PEOPLE v. GENTLE (Leon)
    Court of Appeals of New York.
    January 2, 2018
   Rivera, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. GRANT (Edwin)
    Court of Appeals of New York.
    January 2, 2018
   Garcia, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. HARRIS (Cahiem)
    Court of Appeals of New York.
    January 31, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (Wilson, J.)


text:
    PEOPLE v. HANKINS (Jamile) aka Hawkins (Jamile)
    Court of Appeals of New York.
    January 31, 2018
   Fahey, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. GARRIS (Kerry)
    Court of Appeals of New York.
    January 31, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (Garcia, J.)


text:
    PEOPLE v. HAWKINS (Jamile)
    Court of Appeals of New York.
    January 31, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (Fahey, J.)


text:
    PEOPLE v. HAYNESWORTH (Russell)
    Court of Appeals of New York.
    January 30, 2018
   Wilson, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. GOLDMAN (Reginald)
    Court of Appeals of New York.
    January 29, 2018
   Fahey, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. GONZALEZ-FLORIAN (Franklin)
    Court of Appeals of New York.
    January 29, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (Wilson, J.)


text:
    PEOPLE v. GERMAN (Anthony)
    Court of Appeals of New York.
    January 29, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (Fahey, J.)


text:
    PEOPLE v. JIMENEZ (Jose)
    Court of Appeals of New York.
    January 18, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (Fahey, J.)


text:
    PEOPLE v. LIPPE (Werner)
    Court of Appeals of New York.
    January 18, 2018
    Applications in Criminal Cases for Leave to Appeal Denied Reconsideration (Fahey, J.)


text:
    PEOPLE v. LEWIS (Tyler)
    Court of Appeals of New York.
    January 16, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (Garcia, J.)


text:
    PEOPLE v. JARAMILLO (Miguel)
    Court of Appeals of New York.
    January 15, 2018
    Applications in Criminal Cases for Leave to Appeal Denied Reconsideration (Rivera, J.)


text:
    PEOPLE v. JONES (Eric)
    Court of Appeals of New York.
    January 15, 2018
   Rivera, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. JOHN-CONNOR (Tessa)
    Court of Appeals of New York.
    January 15, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (Rivera, J.)


text:
    PEOPLE v. LEWIS (Arthur)
    Court of Appeals of New York.
    January 15, 2018
   Rivera, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. LEFLORE (Shamir)
    Court of Appeals of New York.
    January 11, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (Wilson, J.)


text:
    PEOPLE v. LARMORE (Justin)
    Court of Appeals of New York.
    January 10, 2018
   Rivera, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. KEITA (Boubacar)
    Court of Appeals of New York.
    January 10, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (Rivera, J.)


text:
    PEOPLE v. JAVIER (Mariel)
    Court of Appeals of New York.
    January 31, 2018
    Applications in Criminal Cases for Leave to Appeal Denied ( DiFiore, J.)


text:
    PEOPLE v. R. (JOSE)
    Court of Appeals of New York.
    January 9, 2018
   Garcia, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. LOVELY (Freeman)
    Court of Appeals of New York.
    January 9, 2018
   Garcia, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. MAIRENA (David)
    Court of Appeals of New York.
    January 5, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (Fahey, J.)


text:
    PEOPLE v. LEYE (Sangue)
    Court of Appeals of New York.
    January 2, 2018
   Stein, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. HUGHES (Derrick)
    Court of Appeals of New York.
    January 2, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (Stein, J.)


text:
    PEOPLE v. KERLEY (Jonathan)
    Court of Appeals of New York.
    January 30, 2018
   Wilson, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. JACKSON (Marshall)
    Court of Appeals of New York.
    January 29, 2018
   Wilson, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. LAWHORN (Venard)
    Court of Appeals of New York.
    January 29, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (DiFiore, J.)


text:
    PEOPLE v. JOHNSON (Tyrone)
    Court of Appeals of New York.
    January 26, 2018
   DiFiore, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. JOHNSON (Glen)
    Court of Appeals of New York.
    January 24, 2018
   Fahey, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. JONES (Christine)
    Court of Appeals of New York.
    January 24, 2018
   Fahey, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. JONES (Antonio)
    Court of Appeals of New York.
    January 23, 2018
   DiFiore, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. KING (Curtis)
    Court of Appeals of New York.
    January 23, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (Rivera, J.)


text:
    PEOPLE v. OLMEDA (Luis)
    Court of Appeals of New York.
    January 18, 2018
   Fahey, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. PERDOMO (Robert) aka Salemperdomo (Robert)
    Court of Appeals of New York.
    January 18, 2018
   Fahey, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. PATEL (Nayanaben)
    Court of Appeals of New York.
    January 18, 2018
    Applications in Criminal Cases for Leave to Appeal Dismissed (Fahey, J.)


text:
    PEOPLE v. MCQUEEN (Jimmie)
    Court of Appeals of New York.
    January 15, 2018
   Rivera, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. OMANA (Nestor)
    Court of Appeals of New York.
    January 11, 2018
   Wilson, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. NEWKIRK (David)
    Court of Appeals of New York.
    January 11, 2018
   Wilson, J.

Applications in Criminal Cases for Leave to Appeal Dismissed


text:
    PEOPLE v. MARCELLE (Jason)
    Court of Appeals of New York.
    January 11, 2018
   Stein, J.

Applications in Criminal Cases for Leave to Appeal Denied Reconsideration


text:
    PEOPLE v. MOSES (Sharife)
    Court of Appeals of New York.
    January 10, 2018
   DiFiore, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. NOVIRI (Mrb) aka Noviri (Mohammad)
    Court of Appeals of New York.
    January 9, 2018
   Stein, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. NOVIRI (Mohammad)
    Court of Appeals of New York.
    January 9, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (Stein, J.)


text:
    PEOPLE v. PENN (Lawrence)
    Court of Appeals of New York.
    January 31, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (Wilson, J.)


text:
    PEOPLE v. NELSON (Latik)
    Court of Appeals of New York.
    January 8, 2018
   Stein, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. MARTE-TEJADA (Johansel)
    Court of Appeals of New York.
    January 8, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (Stein, J.)


text:
    PEOPLE v. MATHIS (Malik)
    Court of Appeals of New York.
    January 3, 2018
   Stein, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. PAIGE (Terry)
    Court of Appeals of New York.
    January 2, 2018
   Garcia, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. MANUEL (Frank)
    Court of Appeals of New York.
    January 2, 2018
   Stein, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. MIGHTY (Craig)
    Court of Appeals of New York.
    January 2, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (Stein, J.)


text:
    PEOPLE v. MCCRAY (Donald)
    Court of Appeals of New York.
    January 31, 2018
   Wilson, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. NAVARRO-MARTINEZ (Carlos)
    Court of Appeals of New York.
    January 30, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (Wilson, J.)


text:
    PEOPLE v. MCCALMON (Lance)
    Court of Appeals of New York.
    January 30, 2018
   Wilson, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. NEW YORK
    Court of Appeals of New York.
    Decided January 30, 2018
   Wilson, J.

denied


text:
    PEOPLE v. MATHAYO (Deng)
    Court of Appeals of New York.
    January 29, 2018
   Wilson, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. PENDERGRASS (Michael)
    Court of Appeals of New York.
    January 26, 2018
    Applications in Criminal Cases for Leave to Appeal Dismissed (Feinman, J.)


text:
    PEOPLE v. MULCAHY (Kenneth)
    Court of Appeals of New York.
    January 26, 2018
   DiFiore, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. OSHINOWO (Mike)
    Court of Appeals of New York.
    January 23, 2018
   Rivera, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. SCARVER (Clarence)
    Court of Appeals of New York.
    January 17, 2018
   DiFiore, J.

Applications in Criminal Cases for Leave to Appeal Denied Reconsideration


text:
    PEOPLE v. SERPAS (Henrri)
    Court of Appeals of New York.
    January 16, 2018
    Applications in Criminal Cases for Leave to Appeal Denied 1/16/2018 (Stein, J.)


text:
    PEOPLE v. PURDY (Adam)
    Court of Appeals of New York.
    January 11, 2018
   Feinman, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. RODRIGUEZ (Rafael)
    Court of Appeals of New York.
    January 11, 2018
   ( Wilson, J.)

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. RONG HE
    Court of Appeals of New York.
    January 11, 2018
   Wilson, J.

Applications in Criminal Cases for Leave to Appeal Dismissed


text:
    PEOPLE v. ROBINSON (Icylin)
    Court of Appeals of New York.
    January 11, 2018
   Feinman, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. RABINE (Scott)
    Court of Appeals of New York.
    January 10, 2018
   Feinman, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. RODGERS (Donald)
    Court of Appeals of New York.
    January 10, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (Rivera, J.)


text:
    PEOPLE v. PIERCE (David)
    Court of Appeals of New York.
    January 9, 2018
   Feinman, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. ROBERITES (Jesse)
    Court of Appeals of New York.
    January 9, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (Garcia, J.)


text:
    PEOPLE v. RODRIGUEZ (Kevin)
    Court of Appeals of New York.
    January 31, 2018
   Garcia, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. QUINONES (Juan)
    Court of Appeals of New York.
    January 8, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (Stein, J.)


text:
    PEOPLE v. SANCHEZ (Ramon)
    Court of Appeals of New York.
    January 8, 2018
   Stein, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. RUTLEDGE (Michael)
    Court of Appeals of New York.
    January 5, 2018
   DiFiore, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. ROBINSON (John)
    Court of Appeals of New York.
    January 4, 2018
   Stein, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. PEREZ (Julio)
    Court of Appeals of New York.
    January 2, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (Garcia, J.)


text:
    PEOPLE v. SAVINO (Anthony)
    Court of Appeals of New York.
    January 31, 2018
   Wilson, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. SAULTERS (Damion)
    Court of Appeals of New York.
    January 30, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (Wilson, J.)


text:
    PEOPLE v. ROGERS (Michael)
    Court of Appeals of New York.
    January 30, 2018
   Wilson, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. RODRIGUEZ (Thomas)
    Court of Appeals of New York.
    January 29, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (DiFiore, J.)


text:
    PEOPLE v. SADDLER (Jerry)
    Court of Appeals of New York.
    January 23, 2018
   DiFiore, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. PEREZ (David)
    Court of Appeals of New York.
    January 18, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (Fahey, J.)


text:
    PEOPLE v. SHANNON (Angela)
    Court of Appeals of New York.
    January 18, 2018
   Fahey, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. SALEMPERDOMO (Robert)
    Court of Appeals of New York.
    January 18, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (Fahey, J.)


text:
    PEOPLE v. VIDRO (Luis)
    Court of Appeals of New York.
    January 16, 2018
   Stein, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. TADD (Gary)
    Court of Appeals of New York.
    January 15, 2018
   Rivera, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. THOMAS-DIAZ (Neftali)
    Court of Appeals of New York.
    January 15, 2018
   Rivera, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. VAUGHAN (Hasan)
    Court of Appeals of New York.
    January 15, 2018
    Applications in Criminal Cases for Leave to Appeal Denied Reconsideration (Rivera, J.)


text:
    PEOPLE v. SPEARS (Lacey)
    Court of Appeals of New York.
    January 15, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (Rivera, J.)


text:
    PEOPLE v. TOMPKINS (Ulysses)
    Court of Appeals of New York.
    January 15, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (Rivera, J.)


text:
    PEOPLE v. SMITH (Jatiek)
    Court of Appeals of New York.
    January 11, 2018
   Rivera, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. TARVER (Octavia)
    Court of Appeals of New York.
    January 10, 2018
   Rivera, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. TETREAULT (Napoleon)
    Court of Appeals of New York.
    January 10, 2018
   DiFiore, J.

Applications in Criminal Cases for Leave to Appeal Denied Reconsideration


text:
    PEOPLE v. SWABY (Wayne)
    Court of Appeals of New York.
    January 3, 2018
   Stein, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. SMITH (Reginald)
    Court of Appeals of New York.
    January 31, 2018
   Fahey, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. TRENT (Daquan)
    Court of Appeals of New York.
    January 3, 2018
   Stein, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. VELEZ (Jose)
    Court of Appeals of New York.
    January 2, 2018
   Stein, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. SIMMONS (Derek)
    Court of Appeals of New York.
    January 2, 2018
   Stein, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. TROTMAN (Derrick)
    Court of Appeals of New York.
    January 2, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (Stein, J.)


text:
    PEOPLE v. TURNER (Luis)
    Court of Appeals of New York.
    January 31, 2018
   Fahey, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. THOMAS (Vernon)
    Court of Appeals of New York.
    January 31, 2018
   Wilson, J.

Applications in Criminal Cases for Leave to Appeal Dismissed


text:
    PEOPLE v. TAMMARO (Michael)
    Court of Appeals of New York.
    January 30, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (DiFiore, J.)


text:
    PEOPLE v. WALKER (Bryan)
    Court of Appeals of New York.
    January 29, 2018
   Wilson, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. TOLAND (Charles)
    Court of Appeals of New York.
    January 24, 2018
   Fahey, J.

Applications in Criminal Cases for Leave to Appeal Denied Reconsideration


text:
    PEOPLE v. TORRES (Joseph)
    Court of Appeals of New York.
    January 23, 2018
   DiFiore, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. SUTTON (Aaron)
    Court of Appeals of New York.
    January 17, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (Stein, J.)


text:
    PEOPLE v. SOTO (Michael)
    Court of Appeals of New York.
    January 16, 2018
   Rivera, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. YEBAOH (Jeffrey)
    Court of Appeals of New York.
    January 29, 2018
   Wilson, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. WALKER (Sherman)
    Court of Appeals of New York.
    January 17, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (Rivera, J.)


text:
    PEOPLE v. WILLIAMS (Michael)
    Court of Appeals of New York.
    January 15, 2018
   Rivera, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. WELLS (Carl)
    Court of Appeals of New York.
    January 10, 2018
    Applications in Criminal Cases for Leave to Appeal Dismissed (DiFiore, J.)


text:
    PEOPLE v. Yong CHEN
    Court of Appeals of New York.
    January 9, 2018
   Garcia, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. YOUNG (Christopher)
    Court of Appeals of New York.
    January 8, 2018
   DiFiore, J.

Applications in Criminal Cases for Leave to Appeal Denied Reconsideration


text:
    PEOPLE v. WHITEFIELD (Craig)
    Court of Appeals of New York.
    January 2, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (Stein, J.)