New York Insurance Association, Inc. v. State of New York ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: October 27, 2016 522385
________________________________
NEW YORK INSURANCE ASSOCIATION,
INC., et al.,
Appellants,
et al.,
Plaintiffs, OPINION AND ORDER
v
STATE OF NEW YORK et al.,
Respondents.
________________________________
Calendar Date: September 16, 2016
Before: Peters, P.J., McCarthy, Garry, Clark and Aarons, JJ.
__________
O'Connell & Aronowitz, Albany (Jeffrey J. Sherrin of
counsel), for appellants.
Eric T. Schneiderman, Attorney General, Albany (Victor
Paladino of counsel), for respondents.
__________
Clark, J.
Appeal from an order of the Supreme Court (McDonough, J.),
entered March 31, 2015 in Albany County, which, among other
things, granted defendants' motion for summary judgment
dismissing the third amended complaint.
Plaintiff New York Insurance Association, Inc. (hereinafter
NYIA) is a non-profit trade association comprised of property and
casualty insurance companies, domestic and foreign, that issue
insurance policies throughout New York. Pursuant to Financial
Services Law § 206 and its repealed predecessor, Insurance Law
former § 332, certain of NYIA's members, including the six named
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plaintiff property and casualty insurance companies (hereinafter
collectively referred to as plaintiff insurers), are required to
pay assessment fees to defray the operating expenses of the
Department of Financial Services (hereinafter DFS) and its
predecessor, the Insurance Department1 – two administrative
bodies charged with supervising and regulating the insurance
industry (see Financial Services Law §§ 102, 201). Specifically,
domestic insurers and licensed United States branches of alien
insurers domiciled in New York (hereinafter collectively referred
to as insurers) are required to pay their pro rata shares of the
annual expenses of the Department (see Insurance Law former
§ 332; Financial Services Law § 206). Insurers receive quarterly
invoices demanding payment of their pro rata shares of the
Department's annual expenses and, at the end of each fiscal year,
they receive final or "true-up" assessment invoices requiring
those insurers that had paid less than their pro rata shares to
pay the difference and affording those insurers that had overpaid
the option of a refund or a credit against subsequent assessments
(see Insurance Law former § 332 [b]; Financial Services Law § 206
[b]). Assessments are deposited into the Department's "339.B6
account," a special revenue fund.
In April 2008, the Legislature enacted a budget bill for
fiscal year 2008-2009, which included the costs of various
governmental programs (hereinafter referred to as the sub-
allocated programs) – most of which were administered by other
state agencies – in the Department's appropriated expenses. The
budget bills enacted for the fiscal years from 2009-2010 through
2012-2013 also included the costs of the sub-allocated programs.
Further, in February 2009, the Legislature enacted a statute
which provided that, notwithstanding any law to the contrary, for
fiscal year 2008-2009, "the total value of the annual assessment
w[ould] be equal to the total value of the [D]epartment's enacted
1
In 2011, the Insurance Department merged with the Banking
Department to create DFS (see Financial Services Law § 102).
Because plaintiffs' claims involve events occurring both before
and after the creation of DFS, the Insurance Department and DFS
will be, for the purposes of this decision, collectively referred
to as the Department.
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appropriations," as opposed to the Department's actual expenses,
and that, if the total value of the assessment exceeded the
Department's actual annual expenses, the State Comptroller was,
at the request of defendant Director of the Budget, authorized
and directed to transfer up to $4.5 million from the unencumbered
balance of the Department's 339.B6 account into the general fund
of defendant State of New York (L 2009, ch 2, part H, § 1). The
Legislature enacted five similar statutes for fiscal years 2009-
2010 and 2010-2011 (see L 2009, ch 56, part PP, § 2 [up to $15
million]; L 2009, ch 503, part E, § 3 [up to $575 million]; L
2009, ch 503, part E, § 5 [up to $4.94 million]; L 2010, ch 56,
part JJ, § 9 [up to $500 million]; L 2010, ch 56, part JJ, § 14
[any amount]). Pursuant to these statutes, six transfers of the
unused assessments were made from the Department's 339.B6 account
into the State's general fund, totaling over $89 million.
In January 2010, NYIA and plaintiff insurers (hereinafter
collectively referred to as plaintiffs) commenced this action
for, among other things, declaratory relief challenging the
assessments levied during fiscal years 2008-2009 and 2009-2010 to
fund the sub-allocated programs, as well as the statute enacted
in February 2009 that authorized the transfer of unused
assessments from the 339.B6 account into the State's general fund
(see L 2009, ch 2, part H, § 1). In 2011 and 2013, following
joinder of issue, plaintiffs filed amended complaints extending
the scope of their claims to include the assessments levied
during fiscal years 2010-2011 and 2011-2012 to fund the sub-
allocated programs and to add five causes of action challenging
the statutes authorizing the five additional transfers of the
unused assessments during fiscal years 2009-2010 and 2010-2011.
Defendants answered both amended complaints.
In November 2013, plaintiffs and defendants each moved for
summary judgment, and, in February 2014, plaintiffs moved for
leave to file a third amended complaint to join as parties other
individual members of NYIA and to extend their existing claims to
include the portions of the assessments levied during fiscal year
2012-2013 to fund the sub-allocated programs. Defendants cross-
moved for an order holding the parties' summary judgment motions
in abeyance and, in the event that Supreme Court granted
plaintiffs leave to file a third amended complaint, for
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permission to conduct additional discovery. Supreme Court
granted defendants' cross motion, held the summary judgment
motions in abeyance pending the conclusion of further discovery,
granted plaintiffs' motion to the extent of allowing them to file
a third amended complaint and otherwise denied plaintiffs'
motion. Plaintiffs filed a third amended complaint and
defendants answered. Thereafter, upon the completion of
discovery and after the parties supplemented their respective
summary judgment motions, Supreme Court, among other things,
granted defendants' summary judgment motion dismissing the third
amended complaint and declared that Financial Services Law § 206
and its repealed predecessor, Insurance Law former § 332, were
"constitutional, valid and enforceable as applied to plaintiffs."
Plaintiffs appeal.
Plaintiffs' claims, insofar as relevant to this appeal,2
can be separated into two categories: those that challenge the
propriety of including the costs of the sub-allocated programs in
the annual assessments levied during fiscal years 2008-2009
through 2012-2013 and those that challenge the six statutes
authorizing the retention of assessments levied in excess of the
Department's actual expenses in fiscal years 2008-2009, 2009-2010
and 2010-2011, as well as the transfers of unused assessments
into the State's general fund. Causes of action one through four
fall into the former category, while causes of action six through
eleven fall into the latter category. We first focus our
attention on those of plaintiffs' arguments concerning causes of
action one through four.
Plaintiffs challenge Supreme Court's dismissal of portions
of their first cause of action, as well as their second cause of
action, as time-barred. "In order to determine the [s]tatute of
[l]imitations applicable to a particular declaratory judgment
2
Inasmuch as plaintiffs did not address in their brief the
dismissal of their fifth and twelfth causes of action, their
appeal related thereto is deemed abandoned (see NYAHSA Servs.,
Inc., Self-Ins. Trust v People Care Inc., 141 AD3d 785, 787 n 4
[2016]; Matter of Kairis v Fischer, 138 AD3d 1360, 1360 n
[2016]).
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action, the court must 'examine the substance of that action to
identify the relationship out of which the claim arises and the
relief sought'" (Matter of Save the Pine Bush v City of Albany,
70 NY2d 193, 202 [1987], quoting Solnick v Whalen, 49 NY2d 224,
229 [1980]; see Gress v Brown, 20 NY3d 957, 959 [2012]; Thrun v
Cuomo, 112 AD3d 1038, 1040 [2013], lv denied 22 NY3d 865 [2014]).
"If that examination reveals that the rights of the parties
sought to be stabilized in the action for declaratory relief are,
or have been, open to resolution through a form of proceeding for
which a specific limitation period is statutorily provided, then
that period limits the time for commencement of the declaratory
judgment action" (Solnick v Whalen, 49 NY2d at 229-230; accord
Press v County of Monroe, 50 NY2d 695, 701 [1980]; see Gress v
Brown, 20 NY3d at 959; Spinney at Pond View, LLC v Town Bd. of
the Town of Schodack, 99 AD3d 1088, 1089 [2012]). "Where, as
here, governmental activity is being challenged, the immediate
inquiry is whether the challenge could have been advanced in a
CPLR article 78 proceeding" (Northern Elec. Power Co., L.P. v
Hudson Riv.-Black Riv. Regulating Dist., 122 AD3d 1185, 1187
[2014] [internal quotation marks, emphasis and citations
omitted]; see New York City Health & Hosps. Corp. v McBarnette,
84 NY2d 194, 201 [1994]; Matter of Capital Dist. Regional Off-
Track Betting Corp. v New York State Racing & Wagering Bd., 97
AD3d 1044, 1045 [2012]).
Plaintiffs' first cause of action attacks the manner in
which the Director of the Budget and defendant Superintendent of
Financial Services (and previously the Superintendent of
Insurance) implemented Insurance Law former § 332 and Financial
Services Law § 206 – in essence, whether they acted arbitrarily
and capriciously or in excess of their authority by including the
costs of the sub-allocated programs in the annual assessments
collected during fiscal years 2008-2009 through 2012-2013 – and,
therefore, could have been advanced in a CPLR article 78
proceeding (see CPLR 7803 [3]; Financial Services Law § 308 [a];
New York City Health & Hosps. Corp. v McBarnette, 84 NY2d at 205;
Northern Elec. Power Co., L.P. v Hudson Riv.-Black Riv.
Regulating Dist., 122 AD3d at 1188; Fulton County Economic Dev.
Corp. v New York State Auths. Budget Off., 100 AD3d 1335, 1336
[2012]). Accordingly, Supreme Court properly applied a four-
month statute of limitations to plaintiffs' first cause of action
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(see CPLR 217 [1]), which began to run at the time that each
quarterly assessment was levied and not at the time of the "true-
up" assessment (see Matter of Held v State of N.Y. Workers'
Compensation Bd., 103 AD3d 1063, 1064 [2013]; see generally
Matter of Best Payphones, Inc. v Department of Info. Tech. &
Telecom. of City of N.Y., 5 NY3d 30, 34 [2005]; Matter of
Properties of N.Y., Inc. v Planning Bd. of Town of Stuyvesant, 35
AD3d 941, 943 [2006]), to determine that only so much of the
first cause of action as challenged the quarterly assessment
levied on November 5, 2009 was timely.
Interpreted broadly, plaintiffs' second cause of action
challenges the constitutionality of Insurance Law former § 332
and Financial Services Law § 206, a challenge which is
inappropriate for review in a CPLR article 78 proceeding (see
Ames Volkswagen v State Tax Commn., 47 NY2d 345, 348 [1979];
Matter of Overhill Bldg. Co. v Delany, 28 NY2d 449, 458 [1971];
Matter of Llana v Town of Pittstown, 234 AD2d 881, 883 [1996]).
Thus, Supreme Court should have applied the residual six-year
statute of limitations to plaintiffs' second cause of action (see
CPLR 213 [1]). Applying the appropriate statute of limitations,
which began to run upon the enactment of the challenged statutory
provisions (see Matter of McCarthy v Zoning Bd. of Appeals of
Town of Niskayuna, 283 AD2d 857, 858 [2001]; Matter of Schulz v
New York State Legislature, 278 AD2d 710, 713 [2000], lv denied 3
NY3d 606 [2004]; Matter of Frontier Ins. Co. v Town Bd. of Town
of Thompson, 252 AD2d 928, 930 [1998]; Almor Assoc. v Town of
Skaneateles, 231 AD2d 863, 863 [1996]), only that portion of the
second cause of action alleging that Financial Services Law § 206
unlawfully delegated to the Department the power to tax is timely
(see L 2011, ch 62, part A, § 1).
Turning to the merits, with regard to the timely portion of
plaintiffs' first cause of action, the operation of the Laws of
2009 (ch 503, part E, § 5) during fiscal year 2009-2010 is the
dispositive circumstance in our analysis of whether the
Department's inclusion of the costs of the sub-allocated programs
in the November 5, 2009 quarterly assessment was an
unconstitutional usurpation of the Legislature's exclusive power
to tax or arbitrary and capricious. During that fiscal year, the
Laws of 2009 (ch 503, part E, § 5) – which applied
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notwithstanding Insurance Law former § 332 or any other contrary
law – required that the total value of the assessments levied to
defray "the annual expenses related to [the Department's]
activities and operations" be equal to the amount of the
Department's appropriated expenses, which included the costs of
the sub-allocated programs. Given that the inclusion of the
costs of the sub-allocated programs was statutorily mandated in
fiscal year 2009-2010, the Department did not act in excess of
its authority or in an arbitrary or capricious manner when it
included those costs in the November 5, 2009 quarterly assessment
(see Matter of Homestead Funding Corp. v State of N.Y. Banking
Dept., 95 AD3d 1410, 1411 [2012]). Thus, the entirety of
plaintiffs' first cause of action must be dismissed.3
The timely portion of plaintiffs' second cause of action
alleges that Financial Services Law § 206, on its face,
unlawfully delegates to the Department the Legislature's
exclusive power to tax (see NY Const, art III, § 1). In relevant
part, Financial Services Law § 206 states:
"For each fiscal year commencing on or
after April [1, 2012], assessments to
defray operating expenses, including all
direct and indirect costs, of the
[D]epartment . . . shall be assessed by
the [S]uperintendent in accordance with
this subsection. Persons regulated under
the insurance law shall be assessed by the
[S]uperintendent for the operating
expenses of the [D]epartment that are
3
Plaintiffs did not allege that the six statutes
authorizing the transfers (and also redefining the annual
assessment to be the appropriated expenses of the Department
rather than its actual expenses) imposed an unconstitutional tax
and, therefore, this claim is not properly before us (see Matter
of Tomarken v State of New York, 100 AD3d 1072, 1076 [2012];
Matter of Association for Community Living, Inc. v New York State
Off. of Mental Health, 92 AD3d 1066, 1068 [2012], appeal
dismissed 19 NY3d 874 [2012], lv denied 19 NY3d 815 [2012]).
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solely attributable to regulating persons
under the insurance law."
Giving effect to its plain language (see McKinney's Cons Laws of
NY, Book 1, Statutes § 76), it is clear that, through its
enactment of Financial Services Law § 206, the Legislature solely
authorized the Department to impose regulatory assessment fees
upon insurers to defray "the operating expenses" associated with
the regulatory functions of the Department and did not delegate
its exclusive power to tax to the Department (Financial Services
Law § 206 [a]), thereby rendering the timely portion of
plaintiffs' second cause of action without merit.
In their third and fourth causes of action, plaintiffs
allege that the inclusion of the costs of the sub-allocated
programs in the annual assessments violated NY Constitution,
article XVI, § 3, which states that "[i]ntangible personal
property shall not be taxed ad valorem nor shall any excise tax
be levied solely because of the ownership or possession thereof,"
as well as NY Constitution, article III, § 22, which requires tax
laws to "distinctly state the tax and the object to which it is
to be applied."4 To evaluate these claims, we must determine
whether the annual assessments levied during fiscal years 2008-
2009 through 2012-2013 were, to the extent that they included the
costs of the sub-allocated programs, fees or taxes.
"A tax is a charge that a government exacts from a citizen
to defray the general costs of government unrelated to any
particular benefit received by that citizen" (Matter of Walton v
New York State Dept. of Correctional Servs., 13 NY3d 475, 485
[2009] [citation omitted]; see American Sugar Ref. Co. of N.Y. v
Waterfront Commn. of N.Y. Harbor, 55 NY2d 11, 27 [1982], appeal
dismissed 458 US 1101 [1982]; Matter of Homestead Funding Corp. v
State of N.Y. Banking Dept., 95 AD3d at 1410; New York Tel. Co. v
City of Amsterdam, 200 AD2d 315, 318 [1994]). In contrast, "a
fee is a charge, imposed upon certain citizens or entities who
use particular services of or obtain benefits from a particular
4
Defendants do not challenge Supreme Court's determination
that plaintiffs' third and fourth causes of action are timely.
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governmental program or agency, to defray the costs of those
services or benefits" (Matter of Homestead Funding Corp. v State
of N.Y. Banking Dept., 95 AD3d at 1410-1411; see American Sugar
Ref. Co. of N.Y. v Waterfront Commn. of N.Y. Harbor, 55 NY2d at
26-27; Jewish Reconstructionist Synagogue of N. Shore v
Incorporated Vil. of Roslyn Harbor, 40 NY2d 158, 162 [1976];
Matter of Joslin v Regan, 63 AD2d 466, 470 [1978], affd 48 NY2d
746 [1979]).
The label assigned to an assessment (i.e., tax or fee) is
not determinative of its true nature (see American Ins. Assn. v
Lewis, 50 NY2d 617, 623 [1980]; New York Tel. Co. v City of
Amsterdam, 200 AD2d at 317; Albany Area Bldrs. Assn. v Town of
Guilderland, 141 AD2d 293, 298 [1988], affd 74 NY2d 372 [1989];
Matter of Joslin v Regan, 63 AD2d at 470). Therefore, courts
must examine the purpose and use of the funds collected, as well
as the government benefits received by the entities to be
regulated (see Matter of Walton v New York State Dept. of
Correctional Servs., 13 NY3d at 488 n 9; Jewish Reconstructionist
Synagogue of N. Shore v Incorporated Vil. of Roslyn Harbor, 40
NY2d at 162). Funds collected are found to be taxes where they
are not reasonably necessary to the accomplishment of the
regulatory purposes of the agency charged with their collection
or the entities to be regulated are not primarily or
proportionally benefitted through their expenditure (see American
Ins. Assn. v Lewis, 50 NY2d at 622; Jewish Reconstructionist
Synagogue of N. Shore v Incorporated Vil. of Roslyn Harbor, 40
NY2d at 163; Matter of Phillips v Town of Clifton Park Water
Auth., 286 AD2d 834, 835 [2001], lv denied 97 NY2d 613 [2002];
Coconato v Town of Esopus, 152 AD2d 39, 44 [1989], lv denied 76
NY2d 701 [1990]; Matter of Torsoe Bros. Constr. Corp. v Board of
Trustees of Inc. Vil. of Monroe, 49 AD2d 461, 465 [1975]). "To
the extent that fees charged are exacted for revenue purposes or
to offset the cost of general governmental functions[,] they are
invalid as an unauthorized tax" (Matter of Torsoe Bros. Constr.
Corp. v Board of Trustees of Inc. Vil. of Monroe, 49 AD2d at 465;
accord Matter of Phillips v Town of Clifton Park Water Auth., 286
AD2d at 835; see Matter of Walton v New York State Dept. of
Correctional Servs., 13 NY3d at 488 n 9; Albany Area Bldrs. Assn.
v Town of Guilderland, 141 AD2d at 298).
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To establish that the costs of the sub-allocated programs
were properly assessed as fees, defendants proffered the
affidavits of employees involved in the administration of the
sub-allocated programs, who attested to the purposes and benefits
of each program. These affidavits demonstrated that each of the
sub-allocated programs funded during fiscal years 2008-2009
through 2012-2013 was reasonably necessary to the accomplishment
of the regulatory purposes of the Department, whether explicitly
or implicitly derived from the Insurance Law or the Financial
Services Law. As defendants established their prima facie
entitlement to summary judgment dismissing causes of action three
and four, the burden shifted to plaintiffs to raise triable
issues of fact relating to the purposes of, or benefits derived
from, each of the challenged programs, as established by
defendants (see generally Vega v Restani Constr. Corp., 18 NY3d
499, 503 [2012]; Alvarez v Prospect Hosp., 68 NY2d 320, 324
[1986]). Plaintiffs' submissions failed to do so. Accordingly,
as defendants demonstrated that the annual assessments levied
during the challenged fiscal years were not taxes, the
constitutional provisions are inapplicable and plaintiffs' third
and fourth causes of action were properly dismissed (see Matter
of Joslin v Regan, 63 AD2d at 470).
We now address causes of action 6 through 11, wherein
plaintiffs allege that the six statutes authorizing the retention
and transfer of assessments levied in excess of the Department's
annual expenses violated the Takings Clauses of the NY and US
Constitutions (see US Const Amend V; NY Const, art I, § 7).5
5
Plaintiffs argue in their brief that the funding of the
sub-allocated programs constituted a taking because the costs of
the programs were not expenses of the Department. However, we do
not read the third amended complaint to plead this particular
claim and, thus, it is unpreserved for our review (see Matter of
Tomarken v State of New York, 100 AD3d at 1076; Matter of
Association for Community Living, Inc. v New York State Off. of
Mental Health, 92 AD3d at 1068). In any event, even if the third
amended complaint included such a claim, it would be without
merit, given that defendants demonstrated that the costs of the
sub-allocated programs were properly assessed as fees and
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Initially, with respect to the issue of timeliness, we disagree
with Supreme Court and defendants that a four-month statute of
limitations is applicable simply because the transfers could not
occur until the Director of the Budget took administrative action
to request the transfers (see L 2009, ch 2, part H, § 1; L 2009,
ch 56, part PP, § 2; L 2009, ch 503, part E, §§ 3, 5; L 2010, ch
56, part JJ, §§ 9, 14). The alleged takings arose out of the
statutory language authorizing the retention of funds collected
over and above the Department's actual annual expenses and the
subsequent transfer of excess assessments from the Department's
339.B6 account into the State's general fund. Inasmuch as claims
6 through 11 attack the constitutionality of legislation, they
are subject to a six-year statute of limitations (see Matter of
Save the Pine Bush v City of Albany, 70 NY2d at 203-204; Matter
of Kovarsky v Housing & Dev. Admin. of City of N.Y., 31 NY2d 184,
191-192 [1972]; Matter of Frontier Ins. Co. v Town Bd. of Town of
Thompson, 252 AD2d at 930). Having been commenced within the
requisite time frame, these causes of action are timely.
As to the merits, in assessing whether the six challenged
statutes effectuated a taking of private property without just
compensation, we must first determine whether plaintiff insurers
held a vested property right entitling them to a refund or credit
for money levied in excess of the Department's actual annual
expenses during fiscal years 2008-2009, 2009-2010 and 2010-2011.
To that end, "constitutionally protected property interests are
'created and their dimensions are defined by existing rules or
understandings that stem from an independent source such as state
law'" (Alliance of Am. Insurers v Chu, 77 NY2d 573, 585 [1991],
quoting Board of Regents of State Colleges v Roth, 408 US 564,
577 [1972]). Here, Insurance Law former § 332 clearly created a
property right in favor of the insurers, as it provided that the
annual assessment be collected to defray the expenses of the
Department and that the insurers be reimbursed for, or credited
with, any overpayment of their pro rata shares resulting from a
discrepancy between the Department's estimated annual expenses
and its actual annual expenses, as determined at the end of each
fiscal year (see Alliance of Am. Insurers v Chu, 77 NY2d at
plaintiffs failed to rebut that showing.
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585).6
Just as the Legislature has the power to statutorily create
property interests, so too may it legislatively alter or take
away those same property interests, though its "power to alter
the rights and obligations that attach to completed transactions
is not as broad as its power to regulate future transactions"
(Alliance of Am. Insurers v Chu, 77 NY2d at 585; see Matter of
Hodes v Axelrod, 70 NY2d 364, 369-370 [1987]). Here, the
Legislature permissibly extinguished the property interest
created in favor of the insurers in Insurance Law former § 332 by
enacting the challenged statutes prior to the end of the fiscal
year in which they applied. Despite their payment of quarterly
assessments during the fiscal years affected by the challenged
statutes, plaintiff insurers' right to a refund or credit of any
overpayment did not vest until the end of the fiscal year, when
it could be determined whether each had overpaid. To hold
otherwise would allow an insurer to claim a deprivation of a
property right at a time when it could not yet be determined if
there was in fact a deprivation. Accordingly, because the
challenged statutes extinguished, albeit on a temporary basis,
the property right created by Insurance Law former § 332 before
it vested, plaintiffs' takings claims fail as a matter of law
(see Matter of Novara v Cantor Fitzgerald, LP, 20 AD3d 103, 108
[2005], lv denied 5 NY3d 710 [2005]; see generally Matter of
Gazza v New York State Dept. of Envtl. Conservation, 89 NY2d 603,
613-615 [1997], cert denied 522 US 813 [1997]; Preble Aggregate v
Town of Preble, 263 AD2d 849, 852 [1999], lv denied 94 NY2d 760
[2000]; compare Alliance of Am. Insurers v Chu, 77 NY2d at 586).
In the absence of any viable causes of action, we need not
address plaintiffs' argument that Supreme Court improvidently
exercised its discretion in denying their application to join as
plaintiffs additional members of NYIA. To the extent that any
other of the parties' contentions have not been expressly
discussed herein, they are either rendered academic by this
6
We need not examine the language in Financial Services
Law § 206 because that statute had not yet been enacted when the
six challenged statutes were in effect.
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decision or have been examined and found to be without merit.
Peters, P.J., McCarthy, Garry and Aarons, JJ., concur.
ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court