This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 168
In the Matter of James R.
Diegelman et al.,
            Appellants,
        v.
City of Buffalo et al.,
            Respondents.




          John A. Collins, for appellants.
          David M. Lee, for respondents.




STEIN, J.:
          In this appeal, we are asked to determine whether a
police officer who is entitled to receive benefits under General
Municipal Law § 207-c for a duty-related injury is barred from
bringing a claim against his or her employer under General
Municipal Law § 205-e.   We conclude that, where the municipal

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                               - 2 -                         No. 168

employer has elected not to provide coverage pursuant to the
Workers' Compensation Law, a police officer who suffers a line-
of-duty injury caused by the employer's statutory or regulatory
violations may pursue a section 205-e claim.
                                  I.
          Respondent City of Buffalo (the City) employed claimant
James R. Diegelman as a police officer from 1968 until 1995.     On
August 9, 2012, he was diagnosed with mesothelioma, a cancer
caused by exposure to asbestos.    Claimant and his wife, Andrea M.
Diegelman (hereinafter claimants), allege that exposure to
asbestos occurred during his employment at properties owned by
the City and respondent Board of Education, and used by the
Police Department.   Claimants commenced this proceeding seeking
permission to serve a late notice of claim on the City.   In
opposition, the City argued, among other things, that leave
should be denied on the ground that the claim was patently
without merit because General Municipal Law § 207-c provides the
exclusive remedy for the alleged work-related injuries.
          Supreme Court granted claimants' application for
permission to serve a late notice of claim on the City.   The City
appealed, and the Appellate Division reversed on the law and
denied the application (129 AD3d 1527 [4th Dept 2015]).   The
Appellate Division agreed with the City that the claim was barred
by General Municipal Law § 207-c and, thus, held that claimants'
application should be denied because "leave to file a late notice


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of claim is not appropriate for a patently meritless claim" (129
AD3d at 1527 [internal quotation marks and citation omitted]).
This Court granted claimants' motion for leave to appeal (26 NY3d
913 [2015]).
                              II.
          This appeal turns on the interplay of General Municipal
Law §§ 205-e and 207-c, and the Workers' Compensation Law.     "In
addition to any other right of action or recovery under any other
provision of law," section 205-e permits police officers to bring
tort claims for injuries sustained "while in the discharge or
performance at any time or place of any duty imposed by . . .
superior officers" where such injuries occur "directly or
indirectly as a result of any neglect, omission, willful or
culpable negligence of any person or persons in failing to comply
with the requirements of any of the statutes, ordinances, rules,
orders and requirements of the federal, state, county, village,
town or city governments" (General Municipal Law § 205-e [1]).
Separately, section 207-c "provides for the payment of the full
amount of regular salary or wages," along with payment for
medical treatment and hospital care, "to a police officer or
other covered municipal employee who is injured 'in the
performance of his [or her] duties' or is taken ill 'as a result
of the performance of [such] duties'" (Theroux v Reilly, 1 NY3d
232, 239 [2003], quoting General Municipal Law § 207–c [1]).     The
Workers' Compensation Law is, of course, "'the State's most


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                               - 4 -                         No. 168

general and comprehensive social program, enacted to provide all
injured employees with some scheduled compensation and medical
expenses, regardless of fault for ordinary and unqualified
employment duties'" (Theroux, 1 NY3d at 242, quoting Matter of
Balcerak v County of Nassau, 94 NY2d 253, 259 [1999]; accord
Auqui v Seven Thirty One Ltd. Partnership, 22 NY3d 246, 255-256
[2013]).
           It is well settled that workers' compensation benefits
are generally the "sole and exclusive remedy of an employee
against his [or her] employer for injuries in the course of
employment," and that the receipt of such benefits "precludes
suits against an employer for injuries in the course of
employment" (Weiner v City of New York, 19 NY3d 852, 854 [2012]).
Thus, the right of action contained in section 205-e is subject
to a proviso that "nothing in th[at] section shall be deemed to
expand or restrict any right afforded to or limitation imposed
upon an employer, an employee or his or her representative by
virtue of any provisions of the workers' compensation law"
(General Municipal Law § 205-e [1]).   In other words, the proviso
prohibits "recipients of workers' compensation benefits [from]
su[ing] their employers in tort under section 205-[e]" (Weiner,
19 NY3d at 855).
           Inasmuch as the City of Buffalo, like many other large
municipalities, has elected not to provide workers' compensation
benefits to its police officers (see generally Matter of Leone v


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                               - 5 -                          No. 168

Oneida County Sheriff's Dept., 80 NY2d 850, 851 [1992]),
claimants argue that the proviso in section 205-e (1) is
inapplicable to this action.   They maintain that the Appellate
Division erred in extending the proviso's bar on suits to cover
not just recipients of workers' compensation benefits but, also,
recipients of General Municipal Law § 207-c benefits.      The City
responds that section 207-c "is essentially a super workers'
compensation scheme for police officers" and, thus, workers'
compensation exclusivity rules should apply to police officers
who receive section 207-c benefits, regardless of whether they
are entitled to benefits under the Workers' Compensation Law.
          Workers' Compensation Law § 30 (3) provides that "any
salary or wages paid . . ., or the cost of any medical treatment
or hospital care provided[,] . . . under and pursuant to the
provisions of section [207-c] shall be credited against any award
of [workers'] compensation."   As this Court has previously
recognized, the purpose of Workers' Compensation Law § 30 (3) is
to "avoid duplication of benefits" inasmuch as there is some
overlap between workers' compensation benefits and section 207-c
benefits (Leone, 80 NY2d at 852).1     However, workers'


     1
       Workers' compensation benefits, where provided, are
awarded "[i]n addition to General Municipal Law § 207-c (1)
benefits" (Matter of Leone v Oneida County Sheriff's Dept., 80
NY2d 850, 851 [1992] [emphasis added]). Where a municipality
provides its police officers with workers' compensation benefits,
the "municipality's obligation to pay wages and medical costs
under General Municipal . . . [§] 207-c is in no way dependent
upon any determination made by the" Workers' Compensation Board,

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compensation benefits and General Municipal Law § 207-c benefits
are neither equivalent nor "mutually exclusive" such that the
payments of benefits under one statute forecloses payment under
the other statute (Matter of McKay v Town of W. Seneca, 51 AD2d
373, 378 [3d Dept 1976] [Mahoney, J., dissenting], revd on
dissenting op of Mahoney 41 NY2d 931 [1977]; see Leone, 80 NY2d
at 851).   Rather, the two statutory compensation systems are
independent of each other and, contrary to the City's argument
that section 207-c is essentially a super workers' compensation
scheme, the Workers' Compensation Law "features a more lenient
and more inclusive standard of covered activity than is intended
to be covered and compensated in a General Municipal Law § 207-c
benefits universe" (Balcerak, 94 NY2d at 261).
           In enacting the two statutes, "the Legislature chose
different eligibility standards -- 'arising out of and in the
course of employment' for workers' compensation benefits; 'in the
performance of his [or her] duties' for section 207-c benefits"


and a police officer is "not required to exhaust [his or] her
administrative remedies in [a] workers' compensation proceeding
before pursuing" benefits under section 207-c (Matter of Davidson
v LaGrange Fire Dist., 82 AD3d 1227, 1230 [2d Dept 2011]). In
practice, when a police officer is awarded workers' compensation
benefits, those benefits may be made payable to the employer as a
credit for section 207-c benefits already paid (see Matter of
McCabe v Albany County Sheriff's Dept., 129 AD3d 1348, 1348 [3d
Dept 2015]), if the award of workers' compensation benefits would
constitute a duplication of the payment of medical expenses or
salary benefits awarded under section 207-c (cf. Leone, 80 NY2d
at 852 [no credit for section 207-c benefits is allowed against a
workers' compensation schedule loss of use award because such
award does not duplicate 207-c benefits]).

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(Theroux, 1 NY3d at 242).   Pursuant to those differing standards,
"police . . . officers may be eligible for Workers' Compensation
benefits as a result of circumstances that might not entitle them
to General Municipal Law § 207-c benefits" (Balcerak, 94 NY2d at
260).   Specifically, "[w]orkers' compensation benefits are
intended to be dispensed regardless of fault, for any injury
arising out of and in the course of one's employment . . .[,]
[while] [s]ection 207-c benefits . . . are more expansive, but
apply to a narrower class of work-related injury, relative to the
performance of law enforcement duties" (Auqui, 22 NY3d at 256).
Moreover, separate bodies are charged with determining
entitlement to benefits under the Workers' Compensation Law and
General Municipal Law § 207-c, in proceedings involving
"significantly distinct" burdens and procedures (id. at 256-257;
accord Balcerak, 94 NY2d at 261).   Indeed, we have repeatedly
explained that, because "the issue involving the entitlement to
benefits in the General Municipal Law setting is not . . . the
same one decided in a Workers' Compensation determination"
(Balcerak, 94 NY2d at 261), a finding by the Workers'
Compensation Board that an injury is work-related cannot be given
collateral estoppel effect against a municipality that denies an
application for section 207-c benefits (see Auqui, 22 NY3d at
256-257; Theroux, 1 NY3d at 242; Balcerak, 94 NY2d at 256-257).
           Therefore, we reject the City's argument, also adopted
by the dissent, that General Municipal Law § 207-c benefits can


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be equated to workers' compensation benefits for purposes of
interpreting the proviso contained in General Municipal Law §
205-e.2   The language of section 205-e prohibits only recipients
of workers' compensation benefits from commencing suit against
their employers; it does not, by its terms, bar the commencement
of suits by recipients of section 207-c benefits -- which we have
repeatedly recognized to be separate and distinct from workers'
compensation benefits.   In fact, section 205-e states that the
right contained therein is "[i]n addition to any other right of
action or recovery under any other provision of law" (General
Municipal Law § 205-e [1]).   If the Legislature had intended the
proviso in section 205-e to extend to suits by recipients of
section 207-c benefits, "it easily could have and surely would
have written the statute to say so" (Theroux, 1 NY3d at 240).     As
we recently explained in interpreting section 205-e in Gammons v
City of New York, we "cannot by implication supply in a statute a
provision which it is reasonable to suppose the Legislature
intended intentionally to omit because the failure of the
Legislature to include a matter within the scope of an act may be


     2
       The Appellate Division decisions relied upon by the
dissent ultimately flow from O'Dette v Parton (190 AD2d 1074 [4th
Dept 1993]), which is inapposite. In O'Dette, it was
uncontroverted that the plaintiff was entitled to workers'
compensation benefits (see id. at 1075). To the extent that the
Second and Fourth Departments routinely relied upon O'Dette for
the proposition that entitlement to General Municipal Law § 207-c
benefits for duty-related injuries bars a claim against an
employer under section 205-e even where workers' compensation
benefits are unavailable, that reliance was misplaced.

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construed as an indication that its exclusion was intended" (24
NY3d 562, 570 [2014] [internal quotation marks and citations
omitted]; see McKinney's Cons Laws of NY, Book 1, Statutes § 74).
In other words, "[w]e may not create a limitation that the
Legislature did not enact" (Theroux, 1 NY3d at 240).
                               III.
          Extending the bar on suits by recipients of workers'
compensation benefits in General Municipal Law § 205-e to the
recipients of section 207-c benefits -- as the City and the
dissent urge us to do -- would not only be inconsistent with the
language of section 205-e itself; it would also be contrary to a
number of our prior cases acknowledging that the Legislature's
purpose in enacting section 205-e and subsequently amending it
was to "abrogate judicial decisions [of this Court] interpreting"
the right provided in "General Municipal Law § 205-e
restrictively" (Gammons v City of New York, 24 NY3d at 568; see
Williams v City of New York, 2 NY3d 352, 363-364 [2004];
Giuffrida v Citibank Corp., 100 NY2d 72, 76-79 [2003]; Gonzalez v
Iocovello, 93 NY2d 539, 548-549 [1999]; Schiavone v City of New
York, 92 NY2d 308, 313 [1998]).   "General Municipal Law § 205-e
was originally enacted in 1989 for the express purpose of
'mitigat[ing] the effect of the common law "fireman's rule"' as
applied to police officers" (Schiavone, 92 NY2d at 313, quoting
Mem of State Exec Dept, L 1989, ch 346, 1989 McKinney's Session
Laws of NY, at 2140).   Section 205-e "conferred on police


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                                - 10 -                        No. 168

officers the same benefits that section 205-a [had been enacted
to] offer[] firefighters, namely, a cause of action for line-of-
duty injuries caused by statutory or regulatory violations"
(Giuffrida, 100 NY2d at 77).    Because "some courts initially held
that section 205–e did not apply retroactively," the statute was
first amended in 1990 to "'ensure that causes of action not
time-barred or finally adjudicated can be brought under the new
law'" (Schiavone, 92 NY2d at 313, quoting Mem of State Exec Dept,
L 1990, ch 762, 1990 McKinney's Session Laws of NY, at 2494,
2495).   The 1990 amendment also declared the statute to be
remedial in nature (see id.).
           In 1992, "the Legislature acted once again, this time
in response to court decisions that restricted a police officer's
cause of action under General Municipal Law § 205-e to situations
where the officer's injuries resulted from 'violations pertaining
to the safe maintenance and control of premises'" (Giuffrida, 100
NY2d at 77, quoting L 1992, ch 474, § 1).   That amendment
clarified "that an officer would have a right of action for
injuries sustained 'in the discharge or performance at any time
or place of any duty imposed [by law, etc.]'" (Schiavone 92 NY2d
at 314, quoting General Municipal Law § 205–e[1]).
           The final substantive amendment took place in 1996,
again in response to court decisions that interpreted section
205-e restrictively.   Specifically, the 1996 amendment added
subdivision (3) to section 205-e "to permit liability even in


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cases where the injury is due to a violation of a codified
common-law duty, constitut[ing] another rejection of a judicial
decision holding otherwise" (Gammons, 24 NY3d at 568-569; see
Gonzalez, 93 NY2d at 549).   In addition, the 1996 amendment
provided that a claim lies under section 205-e even if the
violation did not increase the dangers inherent in a police
officer's job (see Giuffrida, 100 NY2d at 78).   That amendment
was also accompanied by an express statement of "Legislative
intent" indicating that it was "intended to ensure once and for
all that section 205–e of the [G]eneral [M]unicipal [L]aw is
applied by the courts in accordance with its original legislative
intent to offer an umbrella of protection for police officers,
who, in the course of their many and varied duties, are injured
by the negligence of anyone who violates any relevant statute,
ordinance, code, rule and/or regulation" (L 1996, ch 703, § 1).
As we explained in Williams, this "series of amendments to
section 205-e teaches us that we should apply this provision
'expansively' so as to favor recovery by police officers whenever
possible" (2 NY3d at 364 [emphasis added]; see Gammons, 24 NY3d
at 569).
           Moreover, the same 1996 enactment that amended General
Municipal Law § 205-e also created General Obligations Law § 11-
106, which "created a distinct right of action for police
officers and firefighters injured by the negligence or
intentional conduct of any person, except an employer or


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coemployee" (Gonzalez, 93 NY2d at 549), thereby largely
abolishing the firefighter's rule (see Giuffrida, 100 NY2d at
78), but maintaining the common-law bar on tort claims against
employers and coemployees (see Williams, 2 NY3d at 363).     This
Court has long rejected the position of the dissent that the
enactment of General Obligations Law § 11-106 evinced a
legislative intent to prohibit tort claims against municipal
employers; rather, we recognized shortly after that provision was
enacted that the legislative history of the 1996 amendment made
clear "that the employer exemption in General Obligations Law
§ 11-106 should not be incorporated into 'the unambiguous terms'
of General Municipal Law § 205-e" (Gonzalez, 93 NY2d at 549,
quoting L 1996, ch 703, Sponsor's Mem in Support, 1996 NY Legis
Ann, at 529 [emphasis added]).   Subsequently, we explained that
"while a police officer can assert a common-law tort claim
against the general public, liability against a fellow officer or
employer can only be based on the statutory right of action in
General Municipal Law § 205-e" (Williams, 2 NY3d at 363).3
Particularly because a police officer's right to sue his or her
employer is now derived solely from section 205-e, adoption of
the City's restrictive interpretation of the statute would


     3
       Contrary to the dissent's contention that suits by injured
police officers against municipal employers have never been
recognized in the 25 years since the enactment of General
Municipal Law § 205-e, this Court expressly recognized as a
general matter that such suits are permissible over a decade ago
in Williams v City of New York (2 NY3d 352, 363 [2004]).

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                              - 13 -                       No. 168

contravene the well-settled cannon of statutory construction that
remedial statutes -- such as section 205-e (see Schiavone, 92
NY2d at 313) -- "should be construed broadly so as to effectuate
their purpose" (Scanlan v Buffalo Pub. School Sys., 90 NY2d 662,
676 [1997]).
          Finally, the City's construction of the statute is
inconsistent with the legislative history of the 1996 amendment,
which reveals that the New York State Conference of Mayors and
Municipal Officials, as well as the Mayors of New York City and
Rochester individually, specifically objected to the bill based
upon their recognition that General Municipal Law § 205-e, as
amended, would permit police officers to sue their employers
despite receiving generous benefits under section 207-c, thereby
greatly expanding the liability of cities such as Buffalo that do
not provide Workers' Compensation benefits for their police
officers (see Farrell Letter, July 10, 1996, Bill Jacket, L 1996,
ch 703, at 28-29; Johnson Letter, Oct. 8, 1996, Bill Jacket, L
1996, ch 703, at 4; Giuliani Letter, July 8, 1996, Bill Jacket, L
1996, ch 703, at 33).   In signing the bill, however, Governor
Pataki observed that those municipalities, "by not providing
workers' compensation[,] . . . have avoided and will continue to
avoid substantial costs" (id.).   In other words, the legislative
history demonstrates that the Governor, the Legislature and the
affected municipalities were aware at the time of the enactment
of the 1996 amendment that a municipality that does not provide


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                              - 14 -                         No. 168

workers' compensation could be sued by police officers despite
their receipt of section 207-c benefits.
                                  IV.
           In short, we conclude that General Municipal Law § 205-
e, when construed "in an unforced and natural manner" (Theroux, 1
NY3d at 240), cannot be read to bar suits by recipients of
General Municipal Law § 207-c benefits when those police officers
are employed by municipalities that have elected not to provide
workers' compensation coverage.    The contrary interpretation
urged by the City and the dissent is inconsistent with the plain
words of the statute, as well as the express statement of
legislative intent and the legislative history of the statute.
The City's interpretation also conflicts with our prior decisions
recognizing that the statute should be applied expansively and
disregards the distinctions between workers' compensation
benefits and section 207-c benefits long recognized by this
Court.   Claimants' remaining argument is unpreserved.
           Accordingly, the order of the Appellate Division should
be reversed, with costs, and the matter remitted to that court
for consideration of issues raised but not determined on the
appeal to that court.




                              - 14 -
Matter of Diegelman v City of Buffalo, et al.
No. 168




PIGOTT, J. (dissenting):
            Section 205-e of the General Municipal Law -- the
provision under which plaintiff seeks to impose liability against
his municipal employer -- was passed by the Legislature in 1989
(see L 1989, ch 346, § 1).    That section was enacted, in large
part, in response to this Court's decision in Santangelo v State
(71 NY2d 395 [1988]), where we held that on-duty police officers
were not entitled to recover for injuries sustained in the line
of duty as a result of the negligence of third parties (see
Senate Introducer's Mem in Support, Bill Jacket, L 1989, ch 346
at 5; see also Letter to Executive Chamber, June 30, 1989 at 6,
Bill Jacket, L 1989, ch 346).    The statute provides that, so long
as the injured officer could show that the third party failed to
comply with the requirements of any statute, ordinance, rule or
order of a government entity, the injured officer could bring a
negligence cause of action against the third party.
            When enacting section 205-e, the Legislature recognized
that permitting officers to bring negligence actions against
third parties could result in fiscal savings to the municipal
employer.   Since the injured police officers (living in


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                              - 2 -                        No. 168

municipalities with a population of less than one million)1 were
already entitled to receive their salaries and payment of their
medical bills and hospital fees pursuant to General Municipal Law
§ 207-c, the municipality could now file a lien and recoup those
costs from the third party wrongdoer (see Senate Introducer's Mem
in Support, Bill Jacket, L 1989, ch 346 at 5).
          Nowhere in the legislative history of the enactment of
section 205-e did the Legislature indicate that it intended for
the injured employee to commence a lawsuit against the municipal
employer providing section 207-c benefits.   Indeed, appellate
courts routinely recognized that section 207-c benefits were the
injured police officer's exclusive remedy against his or her
municipal employer (see e.g. Nieves v City of Yonkers, 268 AD2d
412 [2d Dept 2000]; Damiani v City of Buffalo, 198 AD2d 814 [4th
Dept 1993]).
          While elected officials expressed a fear during debate
concerning the 1996 amendments that section 205-e could be viewed
as giving injured officers a viable cause of action against their
municipal employer, the Legislature made clear that the



     1
      All municipalities except New York City are compelled to
provide full salary and healthcare benefits to their firefighters
and police officers injured while on duty pursuant to the General
Municipal Law. Therefore, the Legislature has chosen to treat New
York City differently and there is no basis to compare section
207-c to the rules pertaining to that municipality. Nor is there
any basis to rely on prior precedent of this Court that involved
injured police officers suing the City of New York under section
205-e to determine the issue at hand.

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                                 - 3 -                         No. 168

common-law bar on tort claims against municipal employers
remained (see General Obligations Law § 11-106), thereby
evidencing its continued intention to prohibit such suits.
Further, the Legislature did not alter the language of section
205-e in any way to indicate a change in the statute's original
intent, which was to provide municipal employers paying 207-c
benefits a fiscal savings, not subject them to liability.       In the
more than 25 years since the enactment of 205-e, an injured
police officer suing his or her municipal employer has remained
anathema.2
             The majority spends much of its time distinguishing
worker's compensation from section 207-c benefits.     But that
analysis begs the question:     Why would an injured officer
receiving section 207-c benefits, as opposed to workers'
compensation, be entitled to sue his or her employer?     Indeed,
this Court has recognized that section 207-c benefits are
expansive (even more so than workers' compensation benefits).
Injured officers receive their full amount of regular salary or
wages, and the municipality is "liable for all medical treatment
and hospital care necessitated by the injury or illness," which
payments "continue 'even' after the employee's retirement and are


     2
      The majority notes our decision in Williams v City of New
York (2 NY3d 352, 363 [2004]) for the proposition that this Court
has recognized suits against municipal employers under section
205-e (see maj opn at n 3). Williams, however, involved lawsuits
against the City of New York and did not involve injured police
officers receiving section 207-c benefits.

                                 - 3 -
                                   - 4 -                           No. 168

bestowed in addition to any retirement allowance or pension"
(Theroux v Reilly, 1 NY3d 232, 239 [2003]). The fact that section
207-c provides different benefits than workers' compensation,
however, does not authorize an officer to bring a lawsuit against
his or her municipal employer.      The more expansive benefits
available under section 207-c compels just the opposite
conclusion.
             The legislative history of section 205-e provides no
explanation for the distinction the majority attempts to make
between workers' compensation and 207-c benefits because there is
none.   In my view, injured officers are no more entitled to
commence an action against their municipal employer pursuant to
section 205-e when they are receiving section 207-c benefits,
than if they were receiving benefits under workers' compensation.
Therefore, I dissent.
*   *    *     *   *   *   *   *    *      *   *   *   *   *   *     *   *
Order reversed, with costs, and matter remitted to the Appellate
Division, Fourth Department, for consideration of the facts and
issues raised but not determined on the appeal to that court.
Opinion by Judge Stein. Chief Judge DiFiore and Judges Rivera,
Abdus-Salaam, Fahey and Garcia concur. Judge Pigott dissents and
votes to affirm in an opinion.

Decided November 21, 2016




                                   - 4 -
