text:
    In the Matter of Joseph Balter, as Assistant Public Defender of Monroe County, Appellant, v John M. Regan, as Judge of the City Court of Rochester, Respondent.
    Argued June 7, 1984;
    decided July 3, 1984
    APPEARANCES OF COUNSEL

      Edward J. Nowak, Public Defender (Brian Shiffrin and Peter Braun of counsel), for appellant.

      Robert Abrams, Attorney-General (Betsy Broder and Peter H. Schiff of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be affirmed, with costs.

Petitioner, an Assistant Public Defender, was ordered by a City Court Judge to proceed to trial representing a criminal defendant, in spite of the fact that petitioner’s office was also representing the People’s primary witness in an unrelated criminal proceeding. Both petitioner and the People were further directed not to question the witness on the criminal charge or the plea agreement he had reached. Petitioner refused to proceed, believing that to do so would involve an ethical violation on his part and a denial of effective assistance of counsel to his client. By this article 78 proceeding, petitioner has challenged the resulting adjudication of criminal contempt.

Petitioner argues that the court’s order was not a “lawful mandate” that he was required to obey (Judiciary Law, § 750, subd A, par 3), because the order required him to represent a client in violation of both the disciplinary rules concerning the representation of clients with conflicting interests and the client’s constitutional right to counsel. Notwithstanding petitioner’s good-faith belief that the court’s order raised this conflict of interest, we agree with the Appellate Division that the court’s order was not thereby rendered unlawful. However misguided and erroneous the court’s order may have been, petitioner was not free to disregard it and decide for himself the manner in which to proceed (Maness v Meyers, 419 US 449, 458). The prejudice sought to be avoided by petitioner was not irreparable; indeed, in both the case of the defendant and the witness, any prejudice could have been remedied through the appellate process.

The issues raised concerning the propriety of the penalty imposed are not set forth in the petition and, accordingly, are not preserved for review by this court.

Kaye, J.

(dissenting). Petitioner, an attorney in the Monroe County Public Defender’s office, represented Raymond Lennon, an indigent charged with several misdemeanors. When petitioner discovered, just after jury selection, that the chief prosecution witness against Lennon would be Christopher Pellitera, he informed the court that his office represented Pellitera in. a pending unrelated criminal action and, noting the possible impropriety and inherent unfairness of joint representation, asked the court to appoint independent counsel for the witness. Instead, the court directed petitioner to proceed with the Lennon trial and prohibited him from questioning Pellitera about the pending criminal charges against him, limiting cross-examination to other prior bad acts, arrests or convictions. This ruling violated Lennon’s right to confront witnesses against him (see Davis v Alaska, 415 US 308), and denied both Lennon and Pellitera the right to the effective assistance of counsel (see Holloway v Arkansas, 435 US 475; People v Gomberg, 38 NY2d 307; People v Frisbie, 70 AD2d 1053). The ruling also forced petitioner to breach his ethical responsibility by presenting him with a choice of either declining to cross-examine Pellitera, thereby violating his duty to Lennon, or seeking to impeach Pellitera as directed, a violation of his duty both to Lennon and to Pellitera, which could in addition have led to the disclosure of confidential information about Pellitera, a breach irreparable on appeal.

The importance of obedience to orders of a trial court cannot be overstated. But this concern, however vital, should not cause this court to overlook a rare instance when, as here, a trial court has so clearly abused its considerable power as to leave counsel with no reasonable alternative (see, e.g., People v Giglio, 74 AD2d 348 [Hopkins, J.]; De Salvo v Kaplan, 52 AD2d 570; United States v Wendy, 575 F2d 1025; State v Gasen, 48 Ohio App 2d 191). Petitioner pleaded with the court in good faith to adjourn the Lennon trial so that independent counsel could be assigned for Pellitera. Faced with the court’s directive to proceed, he chose, in a most respectful manner and without regard to his personal interests, not to betray the interests of his clients. He should not be punished for that.

Judges Jasen, Jones, Wachtler, Meyer and Simons concur; Judge Kaye dissents and votes to reverse in an opinion in which Chief Judge Cooke concurs.

Judgment affirmed, with costs, in a memorandum.

       As noted in United States v Wendy (575 F2d 1025, 1030) “[c]ontempt by an attorney is always a serious matter. While a simple rebuke or more serious censure by the court might not have the same effect as in the more tightly-knit Bar of England [n omitted], the more serious exercise of the contempt power is awesome in its implications. A citation is likely to afflict the contemnor with a ‘stigma of antisocial conduct.’ Note, Procedures for Trying Contempts in the Federal Courts, 73 Harv.L.Rev. 353, 355 (1959). For a lawyer seeking admission to other bars or to practice before federal agencies, a citation might have considerable economic consequences.”


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of the Arbitration between Doris Turner, as President of District 1199, Respondent, and Booth Memorial Hospital, Also Known as Booth Memorial Medical Center, Appellant.
    Decided July 3, 1984

      APPEARANCES OF COUNSEL

      Carl A. Schwarz, Jr., for appellant.

      Mary Jill Hanson for respondent.
   OPINION OF THE COURT

Memorandum.

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

The hospital’s contention that the arbitrator exceeded his authority when he directed the hospital to restore the laundry must be rejected since the arbitration clause does not expressly or by reference limit the arbitrator’s authority in the manner urged by the hospital (Matter of Silverman [Benmor Coats], 61 NY2d 299). We note that the rule stated in the Silverman case, which involved commercial arbitration, has recently been applied to labor disputes in the public sector (Matter of Board of Educ. v Dover-Wing-dale Teachers’ Assn., 61 NY2d 913). There is no reason why it should not apply to this private sector arbitration (cf. Matter of Acting Supt. of Schools [United Liverpool Faculty Assn.], 42 NY2d 509, 512-514).

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.


text:
    Max W. Frerk, Appellant, v Mercy Hospital, Respondent.
    Decided July 3, 1984

      APPEARANCES OF COUNSEL

      Lester Forest and Lester Forest, Jr., for appellant.

      George L. Repetti for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs (see Parker v Mack, 61 NY2d 114).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye. Judges Jasen and Meyer concur on constraint of Parker u Mack (61 NY2d 114).


author: OPINION OF THE COURT

text:
    Gladys Galler, Appellant, v Prudential Insurance Company of America et al., Respondents, et al., Defendant.
    Decided July 3, 1984

      APPEARANCES OF COUNSEL

      Edward P. Dunphy for appellant.

      Martin M. McGlynn for Prudential Insurance Company of America and another, respondents.

      Joseph D. Ahearn for Arcade Cleaning Contractors, Inc., respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, although on somewhat different reasoning. Silva v American Irving Sav. Bank (31 AD2d 620, affd without opn 26 NY2d 727), on which it relied, was an action against the building owner; the cleaning contractor was not a party defendant. We affirmed in that case not on the basis that the proof was insufficient to establish negligent waxing, but because there was insufficient proof of notice, actual or constructive, on the part of the owner (see Madrid v City of New York, 42 NY2d 1039; and Golding v Mauss, 27 NY2d 580, which revd on dissent at Appellate Division, notwithstanding the citation of Silva by the majority in that court as to the sufficiency of the proof).

A prima facie case of the negligent application of wax may be established by evidence that a dangerous residue of wax was present on the floor (Conroy v Montgomery Ward & Co., 300 NY 540, affg without opn 275 App Div 980; Davis v Kresge Co., 267 App Div 850, mot for lv to app den 292 NY 723; 1 PJI 2:91, p 273). Here, however, the evidence was insufficient to establish prima facie that what plaintiff slipped on was a wax residue (see Rempe v Betts, 8 NY2d 905, affg without opn 8 AD2d 738).

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.


text:
    Anthony Fileccia, Appellant, v Massapequa General Hospital et al., Defendants, and Herbert D. Feldheim, Respondent. (And a Third-Party Action.)
    Decided July 3, 1984

      APPEARANCES OF COUNSEL

      Seymour H. Metnick for appellant.

      Wayne I. Rabinowitz for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (99 AD2d 796).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    The People of the State of New York, Appellant, v Miguel Ramos, Respondent.
    Decided July 3, 1984

      APPEARANCES OF COUNSEL

      Mario Merola, District Attorney (Peter S. Baranowicz of counsel), for appellant.

      Shirley Werner Kornreich and William E. Hellerstein for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, and the case remitted to the Appellate Division, First Department, for a determination of the facts (CPL 470.40, subd 2, par [b]; 470.25, subd 2, par [d]).

Defendant pleaded guilty to the crime of robbery in the first degree in full satisfaction of a multicount indictment charging him and others with the crimes of kidnapping, burglary, robbery, attempted grand larceny, reckless endangerment and criminal possession of a weapon. At the sentencing proceeding defense counsel informed the court that defendant wished to withdraw his plea of guilty on the ground that it was induced by her erroneous sentencing advice. Specifically, counsel had assured defendant, off-the-record, that he would receive credit for the two and one-half years he had been in jail prior to sentencing and four months of “good time” credit for each year he had already served, and that this “good time” credit would be deducted from defendant’s minimum sentence making him eligible for parole in approximately one year. This advice was erroneous because the “good time” would not be credited against the defendant’s minimum sentence (cf. Correction Law, § 803; Penal Law, § 70.30, subd 4).

The sentencing court denied defendant’s motion to withdraw his plea and sentenced him to an indeterminate 41/2-to 13½-year prison term. The Appellate Division unanimously reversed on the law, vacated the sentence, and remanded the matter to Trial Term for an evidentiary hearing to determine whether defendant should be permitted to withdraw his plea of guilty and reinstate his plea of not guilty to the indictment. Defendant also argued that his attorney’s misadvice constituted ineffective assistance of counsel and that Federal constitutional principles mandated that he be permitted to withdraw his plea (see United States ex rel. Hill u Ternullo, 510 F2d 844).

As a general rule, “[ajbsent a showing that defendant’s plea is baseless, the Judge to whom the motion is addressed must be entitled to rely on the record to ascertain whether any promises, representations, implications and the like were made to the defendant” and induced his plea of guilty (People v Frederick, 45 NY2d 520, 525; see, also, People v Selikoff, 35 NY2d 227). Although Frederick and Selikoff are factually distinguishable in that they involved alleged off-the-record promises made by the sentencing court to defendant or his attorney, the policy rationale underlying our refusal to recognize such representations or promises applies here as well. Namely, the Judge to whom the motion to vacate is addressed should be entitled to rely on the record before him in order to insure that guilty pleas are accorded finality whenever possible (People v Hood, 62 NY2d 863; People v Frederick, supra, at p 525). Inasmuch as defense counsel’s misadvice concerning the effects of “good time” credit was not placed on the record at the time of the plea, it is not entitled to judicial recognition.

Defendant’s remaining legal arguments are also without merit. The claim of ineffective assistance of counsel should have been raised in a posttrial application (see People v Brown, 45 NY2d 852). Additionally, while United States ex rel. Hill v Ternullo (510 F2d 844, supra) appears to support defendant’s Federal constitutional argument, that case was limited by Hunter v Fogg (616 F2d 55, 61) where the Second Circuit held that the constitutional requirements of a State court guilty plea do not include informing a defendant of the minimum portion of a sentence that a court may require him to serve.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the memorandum herein.


text:
    In the Matter of Robert F. Rychlick, Appellant, v Thomas A. Coughlin, III, as Commissioner of the Department of Correctional Services, Respondent.
    Decided July 3, 1984

      APPEARANCES OF COUNSEL

      Raymond M. Schlather for appellant.

      Robert Abrams, Attorney-General (Carl E. Stephan and Peter H. Schiff of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs. It was not error of law to deny petitioner’s request to vacate his resignation and we affirm for reasons stated in the memorandum at the Appellate Division (99 AD2d 863).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    James Jones, Appellant, v Gilbert Sharpe, Respondent.
    Decided July 3, 1984

      APPEARANCES OF COUNSEL

      John D. Rodgers for appellant.

      Jeffrey M. Sweet for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (99 AD2d 859).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    In the Matter of James M. Elsasser, Appellant, v Edward V. Regan, as State Comptroller, Respondent.
    Decided July 3, 1984

      APPEARANCES OF COUNSEL

      Jules H. Rosenberg for appellant.

      Robert Abrams, Attorney-General {Julie S. Mereson and Peter H. Schiff of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), judgment affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (99 AD2d 875). We would only add that there is nothing in the legislative history to the July 27,1981 amendment to section 62 of the Retirement and Social Security Law (L 1981, ch 756, § 1) to indicate that it was intended to have retrospective application.

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    In the Matter of Raymond A. Mazgulski et al., Respondents, v Albert B. Lewis, as Superintendent of Insurance, Appellant. (And Another Proceeding.)
    Submitted June 11, 1984;
    decided July 3, 1984
   Motion to dismiss the appeal denied.

Judge Meyer taking no part.


text:
    David Olsan, Respondent, v Eva Olsan, Appellant.
    Decided July 3, 1984
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the modification at the Appellate Division is not in a “respect, which is within the power of the Court of Appeals to review” (CPLR 5601, subd [a], par [iii]; Patron v Patron, 40 NY2d 582).


text:
    In the Matter of Jacqueline Stoker, Respondent-Appellant, v Marianne Tarentino, as Health Service Director of the Ann Lee Home, et al., Appellants-Respondents.
    Decided July 3, 1984
   Cross appeal by petitioner dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that petitioner is not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]).


text:
    In the Matter of Robert E. Whelan, as Comptroller of the City of Buffalo, Respondent, v James D. Griffin, as Mayor of the City of Buffalo, et al., Appellants.
    Submitted May 7, 1984;
    decided July 3, 1984
   On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that appellants are not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]).

Motion for leave to appeal denied. The Court of Appeals restates the rule that denial of a motion for leave to appeal is not equivalent to an affirmance and has no precedential value (see, e.g., Matter of Marchant v Mead-Morrison Mfg. Co., 252 NY 284, 297-298 [Cardozo, Ch. J.]; Matter of Westchester Rockland Newspapers v Ingrassia, 54 NY2d 795).


text:
    Susan Richeson, Respondent, v State of New York, Appellant.
    (Claim No. 66543.)
    Decided July 3, 1984
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed, without costs, upon the ground that the dissent at the Appellate Division is not on a question of law (CPLR 5601, subd [a], par [i]).


text:
    In the Matter of Niagara Environmental Action, by its President, Kenneth Raymond, Appellant, v City of Niagara Falls, Respondent.
    Decided July 5, 1984

      APPEARANCES OF COUNSEL

      David J. Seeger for appellant.

      Richard J. Schroff for respondent.
   OPINION OF THE COURT

Memorandum.

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

It cannot be said on the record before us, in view of the then pending litigation, that the Appellate Division erred, as a matter of law, in holding that respondent had a reasonable basis in law for withholding the requested materials. Accordingly, the denial of petitioner’s request for attorneys’ fees cannot be disturbed by this court.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order, insofar as appealed from, affirmed, with costs, in a memorandum.


text:
    In the Matter of Joan Schaefer, as Executrix of Max S. Schaefer, Deceased, Appellant, v David J. Goldstein, Respondent.
    Decided July 5, 1984

      APPEARANCES OF COUNSEL

      David H. Alexander for appellant.

      Michael E. Davis for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs. The findings of the Appellate Division more nearly comport with the weight of the evidence than do those of the Surrogate’s Court.

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    In the Matter of the Arbitration between Albany County Sheriff’s Local 775 of Council 82, AFSCME, AFL-CIO, on Behalf of Garrett Hughes, Appellant, and County of Albany et al., Respondents.
    Decided July 5, 1984

      APPEARANCES OF COUNSEL

      Christopher H. Gardner for appellant.

      Robert G. Lyman, County Attorney {David M. Purcell of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the petition to confirm the arbitration award granted.

On cross petitions to confirm and to vacate the arbitrator’s award determining that the termination of employment of the correction officer represented by petitioner union was a violation of the collective bargaining agreement with respondents, it was error for the courts below to have disturbed the award. The arbitrator’s decision was predicated on his interpretation of the agreement which gave to a third physician the power to make a final determination when a disagreement arose between the physicians selected by the employer and the employee “over the physical fitness of an employee to continue in his job duties”. Concluding that the third physician’s determination of the employee’s unfitness for work improperly relied on the general physical condition of the employee rather than only the condition of a previously injured leg, which had been the subject of the disagreement between the parties’ original physicians, the arbitrator found that that determination could not serve as a basis for discharge of the employee under the terms of the collective bargaining agreement.

By express provision of the contract, the decision of the arbitrator with respect to any grievance submitted to him — including a grievance “with respect to the meaning * * * of this agreement” — was final and binding. The courts below therefore should not have substituted their interpretation of the provision defining the authority of the third physician for that of the arbitrator. The applicable principle is that an arbitrator’s award “will not be vacated even though the court concludes that his interpretation of the agreement misconstrues or disregards its plain meaning or * misapplies substantive rules of law, unless it is violative of a strong public policy, or is totally irrational, or exceeds a specifically enumerated limitation” (Matter of Silverman [Benmor Coats], 61 NY2d 299, 308).

None of the stated exceptions is operative here. The arbitrator’s conclusion that the dispute-resolving authority of the third physician extended only to the disagreement between the parties’ physicians as to the condition of the correction officer’s injured leg was not irrational. We observe that it was the leg injury and its complications which had been the cause of the employee’s frequent absences from work and it was the return from one of such absences that occasioned the examinations that gave rise to the disparate medical opinions. An arbitrator’s interpretation may even disregard “the apparent, or even the plain, meaning of the words” of the contract before him and still be impervious to challenge in the courts (Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578, 582).

The argument that the arbitrator exceeded a limitation in the collective bargaining agreement (prohibiting his altering the provisions of the contract) by restricting the authority of the third physician to less than what — according to the employer — was conferred on the doctor by the agreement is nothing more than a challenge to the substance of the arbitrator’s contract interpretation, which, as already indicated, is foreclosed.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, with costs, and petition to confirm the arbitration award granted in a memorandum.


text:
    Houlihan Parnes Realtors, Appellant, v Lazar Gazivoda, Respondent.
    Decided July 5, 1984

      APPEARANCES OF COUNSEL

      Stanley Alter for appellant.

      Peter J. Schmerge, Ronald C. Childs and Neil Stevenson for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, with costs, and case remitted to the Appellate Division, Second Department, for consideration of the facts (CPLR 5613) and other issues not reached by that court. The proof adduced by plaintiff was legally sufficient to support the jury’s verdict awarding recovery by plaintiff of the broker’s commission for which the action was brought. There remains to be determined, however, defendant’s claim of errors in the trial court’s instructions to the jury, as to some of which at least, no sufficient objection was made at trial.

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    In the Matter of the Wayne County Department of Social Services, Respondent, v Kenneth Williams, Appellant.
    Decided July 5, 1984

      APPEARANCES OF COUNSEL

      Robert A. DiNieri for appellant.

      Gary Lee Bennett for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order appealed from and order of the Appellate Division brought up for review affirmed, with costs. The determination of the Appellate Division that paternity was established by clear and convincing evidence more nearly comports with the weight of the evidence.

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    In the Matter of Crown Publishers, Inc., et al., Respondents, v James H. Tully, Jr., et al., Constituting the New York State Tax Commission, Appellants.
    Decided July 5, 1984

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General {Wayne L. Benjamin and Peter H. Schiff of counsel), for appellants.

      Stephen A. Somerstein for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, with costs, and the determination of the State Tax Commission reinstated for the reasons stated in the dissenting memorandum of Justice John T. Casey at the Appellate Division (96 AD2d 990, 992).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    In the Matter of Donald Doino, Appellant, v Gillman J. Laehy, as General Manager of the Buffalo Sewer Authority, et al., Respondents.
    Decided July 5, 1984

      APPEARANCES OF COUNSEL

      Ronald L. Jaros for appellant.

      John J. Naples, Corporation Counsel (Paul F. Murak of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (100 AD2d 744).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    Alan Hochberg et al., Appellants, v City of New York, Respondent.
    Decided July 5, 1984

      APPEARANCES OF COUNSEL

      Edward P. Dunphy for appellants.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Margaret G. King of counsel), for respondent.
   opinion of the court

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for reasons stated in the memorandum of the Appellate Division (99 AD2d 1028).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    Joseph Luka et al., Appellants, v New York City Transit Authority, Respondent.
    Decided July 5, 1984

      APPEARANCES OF COUNSEL

      Harry Kresky for appellants.

      Lawrence A. Silver for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the opinion by Justice Max Bloom at the Appellate Division (100 AD2d 323).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    David Clapman et al., Appellants, v City of New York et al., Respondents. (And Two Third-Party Actions.)
    Decided July 5, 1984

      APPEARANCES OF COUNSEL

      Thomas Torto and Ralph J. Drabkin for appellants.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Larry A. Sonnenshein of counsel), for the City of New York, respondent.

      Brian S. Jones for George M. Steinbrenner and others, respondents.

      Joseph D. Ahearn for Canteen Corp., respondent.

      Richard L. Abramson for Richard L. Praeger, respondent.
   OPINION OF THE COURT

Memorandum.

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

This is an action to recover for personal injuries suffered by appellant David Clapman, who in July 1977 was struck by a foul ball while sitting in the box seat area of Yankee Stadium behind the Yankee dugout. Appellants (Clapman and his wife) allege that respondents (the stadium owner, its lessee and operator, its architect, and its vending concessionaire) were negligent in: (1) not extending the protective screen behind home plate to the area where Clap-man was seated; (2) providing insufficient seating behind the existing screen; and (3) allowing Clapman’s view of the play to be obstructed by vendors who moved about the aisles during the game.

Respondents’ motions for summary judgment were properly granted. Appellants failed to raise any issue of material feet concerning a failure to erect a screen providing adequate protection in the area behind home plate, where the danger of being hit by foul balls is greatest, or to provide sufficient seats behind the screen to accommodate as many spectators as reasonably may be expected to desire such seating. In such circumstances there is no breach of duty by respondents. (Davidoff v Metropolitan Baseball Club, 61 NY2d 996; Akins v Glens Falls City School Dist., 53 NY2d 325.) Appellants’ additional allegation that Clapman’s view of the foul ball that hit him was obstructed by stadium vendors is contradicted by his own deposition testimony, and in any event fails to raise any issue requiring a trial. Given the location of the vendors and of Clapman’s seat, and our prior decisions in Davidoff and Akins, respondents had no duty to insure that vendors moving about in the stadium did not interfere with Clap-man’s view.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Appellant, v Dennis Galinski and Dorothy Galinski, Respondents.
    Argued June 5, 1984;
    decided July 5, 1984
   Appeal dismissed upon the ground that the reversal by the Appellate Term was not “on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90, subd 2, par [a]).


text:
    In the Matter of Baron & Vesel, P. C., as Attorneys for the Estate of Erma Fuller, Deceased et al., Appellants-Respondents, v Ira Gammerman, Respondent, and Adele Weinberger, as Administratrix of the Estate of Irving L. Weinberger, Deceased, Respondent-Appellant.
    Decided July 5, 1984
   Cross appeal by respondent-appellant Weinberger dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the dissent at the Appellate Division is not on a question of law in favor of respondent-appellant (CPLR 5601, subd [a], par [i]).


text:
    Bernice M. Burlew et al., Appellants, v American Mutual Insurance Company, Respondent.
    Submitted May 14, 1984;
    decided July 5, 1984
   Motion for leave to appeal denied as unnecessary (see Dalrymple v Shults Chevrolet, 39 NY2d 795).


text:
    In the Matter of the Appointment of a Committee of the Property of Martha C. Von Bulow, an Alleged Incompetent Person. Chemical Bank et al., Respondents; Claus Von Bulow et al., Appellants.
    Submitted June 26, 1984;
    decided July 6, 1984
   Motion to vacate stay granted. Appeal set down for argument during the October, 1984 session of this court. Appellants’ papers on appeal to be served and filed on or before August 17, 1984 and respondents’ on or before September 14, 1984.


text:
    John Gazda, on Behalf of Himself and All Other Shareholders of T. J.’s Big Boy, Inc., and in the Right of T. J.’s Big Boy, Inc., Appellant, v Anthony T. Kolinski, et al., Respondents. (And Another Action.)
    Submitted June 4, 1984;
    decided July 5, 1984
   Motion for leave to appeal dismissed for failure to comply with the Court of Appeals Rules of Practice (§ 500.11 [d] [4] [22 NYCRR 500.1 (d) (4)]). Motion to dismiss appeal taken as of right, insofar as it seeks dismissal of the portion of the appeal seeking review of the April 12, 1984 order of the Appellate Division appealed from, granted and that portion of the appeal dismissed, without costs, upon the ground that the modification at the Appellate Division is not in a substantial respect (CPLR 5601, subd [a], par [iii]); motion, insofar as it seeks dismissal of the portion of the appeal taken pursuant to CPLR 5601 (subd [d]) to review the prior nonfinal order of the Appellate Division, denied.

Judge Simons taking no part.


text:
    In the Matter of Johnson Newspaper Corporation, Appellant, v Richard Parker, as Town Justice of Town of Brownsville, et al., Respondents.
    Decided July 5, 1984
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that appellant is not a party aggrieved by the order of the Appellate Division (CPLR 5511).


text:
    Richard Sherrill, Respondent, v Grayco Builders, Inc., et al., Appellants, and Housing Preservation and Development Department of the City of New York, Respondent. (And Two Other Actions.)
    Submitted June 14, 1984;
    decided July 5, 1984
   Motions denied to the extent that they seek to dismiss the appeal from that portion of the Appellate Division order which modified the July 1, 1982 Supreme Court order. Motions granted insofar as they seek dismissal of the appeal from the portion of the Appellate Division order which dismissed as moot defendants’ appeal from the October 10, 1982 order of. Supreme Court, and that portion of the appeal dismissed upon the ground that it does not finally determine the action within the meaning of the Constitution; motions granted insofar as they seek dismissal of the appeal from the portion of the Appellate Division order which affirmed the April 4, 1983 order of Supreme Court, and that portion of the appeal dismissed upon the ground that no appeal lies as of right from the Appellate Division order of unanimous affirmance; and motions granted insofar as they seek dismissal of the appeal from the portion of the Appellate Division order which consolidated all the actions mentioned therein, and that portion of the appeal dismissed upon the ground that it does not finally determine the action within the meaning of the Constitution. Each of these dismissals is without costs.


text:
    Bruce Ziegler, Respondent, v Lester Raskin et al., Appellants, et al., Defendant.
    Decided July 5, 1984
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that appellants are not parties aggrieved by the order of the Appellate Division (CPLR 5511).


text:
    In the Matter of Alexander A. Delle Cese et al., Appellants, v Robert S. Black et al., Constituting the Board of Elections of the City of New York, et al., Respondents.
    Submitted August 27, 1984;
    decided August 27, 1984
   Appeal taken as of right dismissed, without costs, upon the ground that it does not lie as of right (CPLR 5601). Motion for leave to appeal granted.


text:
    In the Matter of John M. Regan, Respondent-Appellant, v Marguerite D. Toole et al., Constituting the Board of Elections of the County of Monroe, Respondents, and John J. Connell et al., Appellants-Respondents.
    Argued August 27, 1984;
    decided August 28, 1984

      APPEARANCES OF COUNSEL

      Richard E. Regan, for respondent-appellant.

      Ann M. Kerwick for appellants-respondents.

      Christine E. Burke and John D. Doyle for respondents.
   OPINION OF THE COURT

Order affirmed, without costs, for reasons stated in the memorandum at the Appellate Division (104 AD2d 728).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    In the Matter of Alexander Castillo et al., Respondents, v Esperanza Maclara et al., Appellants, and Board of Elections of the City of New York, Respondent.
    Argued August 27, 1984;
    decided August 28, 1984

      APPEARANCES OF COUNSEL

      Lucindo Suarez and Paul A. Victor for appellants.

      Peter Vera, respondent pro se.

   OPINION OF THE COURT

Order affirmed, without costs (see Matter of Seda v Richards, 57 NY2d 737).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    In the Matter of Albert Lemishow, Respondent, v Robert S. Black et al., Constituting the Board of Elections of the City of New York, Respondents, and John Tatar et al., Appellants.
    Argued August 27, 1984;
    decided August 28, 1984

      APPEARANCES OF COUNSEL

      John F. Haggerty for appellants.

      Andre L. Ferenzo for respondent.
   opinion of the court

Memorandum.

The order of the Appellate Division should be affirmed, without costs.

The Appellate Division correctly concluded, on the basis of the evidence recited by it in its memorandum as well as the acknowledgment by the subscribing witness Tatar himself, that the address inserted by him in his statement of residence on the pages of the designating petition was not in fact his place of residence. That being so, the petition, which did not satisfy the requirement of subdivision 2 of section 6-132 of the Election Law that the subscribing witness’s place of residence be included, was properly invalidated (Matter of Frome v Board of Elections, 57 NY2d 741).

The circumstance that the State Board of Elections had issued an opinion that, inasmuch as there had been a reapportionment in 1982, candidates for election as State Committeemen in 1984 need only be residents of the appropriate county (New York State Board of Election, Opn No. 3/1984) and the fact that in reliance thereon Tatar had transferred his enrollment to the address stated on the petition with the hope of becoming a candidate for membership in the State Committee of his party from the assembly district in which that address was located did not serve to validate the designation of that address as his residence in his subscribing witness’s statement on the designating petition.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

Order affirmed, without costs, in a memorandum.


text:
    In the Matter of Sidney Jonas et al., Respondents, v Robert S. Black et al., Constituting the Board of Elections of the City of New York, Respondents, and David Fisher, Appellant.
    Argued August 27, 1984;
    decided August 28, 1984

      APPEARANCES OF COUNSEL

      Raymond Harding for appellant.

      Herbert Dicker for respondents.
   OPINION OF THE COURT

Order affirmed, without costs, for reasons stated in the memorandum at the Appellate Division (104 AD2d 466).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    In the Matter of Dorrit Wohl, Appellant, v William Miller et al., Respondents.
    Argued August 27, 1984;
    decided August 28, 1984

      APPEARANCES OF COUNSEL

      Raymond Harding for appellant.

      Carolyn Stevens, Herbert Dicker, Jerry A. Weiss and Daniel Sitomer for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, the petitions to invalidate reinstated as to those parties properly served and the matter remitted to the Supreme Court for further proceedings on the petitions.

In this proceeding appellant seeks to invalidate certain Liberal Party petitions designating candidates for the State Committee, District Leader and County Committee. The proceeding was commenced by order to show cause specifying the parties to be served. The appellant served some, but not all of the parties mentioned in the show cause order. The trial court concluded that this defect was jurisdictional in nature requiring dismissal of the proceeding as to all parties.

The Appellate Division unanimously affirmed and we granted appellant leave to appeal to this court. The appeal is limited to that portion of the order which dismissed the petition as to those candidates who were properly served.

We can perceive no basis for dismissing the proceeding in its entirety. Failure to serve all parties mentioned in a show cause order would of course deprive the court of jurisdiction over those particular parties not served. It should not, however, require dismissal as to those parties who were properly served, unless those who were not served are necessary parties to the action or proceeding (cf. City of New York v Long Is. Airports Limousine Serv. Corp., 48 NY2d 469; Matter of Greenspan v O’Rourke, 27 NY2d 846). On this record it cannot be said that there has been a failure to join necessary parties. Thus the petitions should be reinstated as to those parties who were properly served.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur in memorandum.

Order reversed, etc.


text:
    In the Matter of Jonathan C. Reiter et al., Respondents, v Robert S. Black et al., Appellants.
    Argued August 27, 1984;
    decided August 28, 1984
    APPEARANCES OF COUNSEL

      Carolyn B. Stevens for appellants.

      Raymond Harding for respondents.
   OPINION OF THE COURT

Memorandum.

On reconsideration, order granting leave to appeal recalled and motion for leave to appeal denied.

Having granted leave to appeal in this case in the accelerated procedure required in some election cases the court sua sponte has reconsidered such determination and on such reconsideration recalls its prior determination and denies the application for leave to appeal.

It now appears that the record supplied to us in this case is substantially incomplete and insufficient to permit an informed judicial resolution of the issues tendered for determination (see Matter of Taylor v McNab, 40 NY2d 821).

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur in memorandum.

On reconsideration, etc.


text:
    In the Matter of Jose Ruiz et al., Respondents, v Robert S. Black et al., Constituting the Board of Elections of the City of New York, Respondents, and Patrick W. Giagnacova et al., Appellants.
    Argued August 27, 1984;
    decided August 28, 1984

      APPEARANCES OF COUNSEL

      Carolyn B. Stevens for appellants.

      Raymond Harding for respondents.
   OPINION OF THE COURT

Order affirmed, without costs (see Matter of Brosnan v Black, 63 NY2d 692, and Matter ofWohl v Miller, 63 NY2d 687 [decided herewith]).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    In the Matter of Clifford Braxton, Respondent, v Edward J. Mahoney et al., Constituting the Board of Elections of the County of Erie, Appellants.
    Submitted August 27, 1984;
    decided August 28, 1984
    APPEARANCES OF COUNSEL

      Eugene F. Pigott, Jr., County Attorney {Roger D. Avent of counsel), for appellants.

      James E. Crotty for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the petition to validate dismissed. The requirements of subdivision 2 of section 6-134 of the Election Law that the sheets of a designating petition be bound together in one or more volumes and the sheets in each volume be numbered consecutively at the foot of each sheet are requirements of content rather than form (see Matter of Frome v Board of Elections, 57 NY2d 741; Matter of Hutson v Bass, 54 NY2d 772; cf. Matter of Sheehan v Scaringe, 60 NY2d 795). Neither sheet of the petition was numbered, the sheets were not bound together, and neither sheet by itself contained a sufficient number of signatures to qualify petitioner as a candidate for County Committeeman. Petitioner’s designating petition was, therefore, properly invalidated by the Board of Elections.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur in memorandum.

Order reversed, etc.


text:
    In the Matter of Donald P. Brosnan et al., Respondents, v Robert S. Black et al., Constituting the Board of Elections of the City of New York, Respondents, and Sheila Rothenberg et al., Appellants. (And Other Titles.)
    Argued August 27, 1984;
    decided August 28, 1984

      APPEARANCES OF COUNSEL

      Raymond Harding for appellants.

      Carolyn B. Stevens for respondents.
   OPINION OF THE COURT

Order affirmed, without costs, for reasons stated in the memorandum at the Appellate Division (104 AD2d 469).

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


author: Meyer, J.

text:
    In the Matter of Alexander A. Delle Cese et al., Appellants, v Robert S. Black et al., Constituting the Board of Elections of the City of New York, et al., Respondents.
    Argued August 27, 1984;
    decided August 28, 1984

      APPEARANCES OF COUNSEL

      Thomas J. Abinanti for appellants.

      Stanley Schlein for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, without costs.

The designating petitions under review, consisting of 452 pages and 5,504 signatures and contained in three bound volumes, designate candidates for several public and party offices in Bronx County. The cover sheet lists the candidates, their respective residences, the offices they seek and the total number of volumes, pages and signatures for each volume and the petition as a whole (see Election Law, § 6-134, subd 2). The cover sheets fail to set forth the required information for the individual candidates, however. While the statute permits the petition of several candidates to be joined, if the petition consists of more than 10 sheets, the cover sheet must set forth the total number of signatures designating candidates for each office, and the pages on which they are found. Without such specification the petitions failed to comply with the statute and the Appellate Division properly denied the petition to validate.

Meyer, J.

(dissenting in part). I would modify to validate the petitions as to the judicial delegates, but affirm as to the county committee candidates whose names and addresses do not appear on the cover sheet as required by subdivision 2 of section 6-134 of the Election Law.

As to the judicial delegates the cover sheet was not defective, for all that subdivision 2 requires is that the cover sheet indicate the office, the name and residence address of each candidate, the total number of pages comprising the petition and the total number of signatures contained in the petition. That was done here.

Pellucidly clear from subdivision 1 of the section is it that a “designating petition may designate candidates for nomination for one or more public offices or for nomination for election to one or more party positions, or both” so long as the petition does not cover positions requiring filing in different election board offices. Clear also from the last sentence of subdivision 2 is it that a petition may consist of several volumes but even then the number of signatures for any given candidate need not be stated on the volume cover sheet.

In reading section 6-134 to require that a number of signatures for each type of candidacy covered by a petition must be set forth on either the petition or a volume cover sheet the majority reads into the statute something which the Legislature never intended and which the wording of the section does not permit.

Judges Jasen, Jones, Wachtler, Simons and Kaye concur; Judge Meyer dissents in part and votes to modify in a memorandum in which Chief Judge Cooke concurs.

Order affirmed, without costs, in a memorandum.


text:
    In the Matter of Charles E. Hargett et al., Appellants, v Anna V. Jefferson et al., Respondents. (And Two Other Proceedings.) In the Matter of Jeanette Nottage et al., Appellants, v Board of Elections of the City of New York et al., Respondents.
    Argued August 27, 1984;
    decided August 28, 1984

      APPEARANCES OF COUNSEL

      Aaron D. Maslow and Debra Silber for Charles E. Hargett and another, appellants.

      Michelle Weston Patterson for Jeanette Nottage and another, appellants.

      Alan L. Lebowitz for Anna Jefferson, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, the petitions to invalidate granted and the petition to validate dismissed.

Anna Jefferson submitted a designating petition for the office of State Senator and she and Stanley E. Clark submitted a designating petition together for positions on the Democratic State Committee. In both instances, the cover sheets accompanying the petitions contained all the information required by the Election Law (§ 6-134, subd 2) except that they overstated the total number of signatures. In the petition for State Senator, the cover sheet indicated a total of 5,074 signatures although it actually contained 3,831 signatures. In the petition for positions on the Democratic Committee, the cover sheet indicated a total of 3,325 signatures although it actually contained 2,083. The discrepancies were said to have been produced when the worker tabulating the signatures on each page failed to clear the calculator before adding the totals together.

The Election Law requires that the cover sheet state the total number of signatures each petition contains (Election Law, § 6-134, subd 2). The requirement is a matter of substance and must be strictly complied with (see Matter of Smith v Mahoney, 60 NY2d 596; Matter of Engert v McNab, 60 NY2d 607; Matter of Hutson v Bass, 54 NY2d 772). The candidates’ characterization of the overstatements as inadvertent mathematical errors of commission, rather than acts of omission, does not excuse the admitted failure to strictly observe the statutory commands.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur in memorandum.

Order reversed, etc.


text:
    In the Matter of Philip J. Bosco, Respondent, v F. Wilson Smith et al., Constituting the Board of Elections of Rockland County, and F. Wilson Smith et al., Appellants.
    Argued August 27, 1984;
    decided August 28, 1984

      APPEARANCES OF COUNSEL

      Thomas J. Spargo and David N. Liebman for appellants.

      Han S. Schoenberger, County Attorney (.Martin Hurwitz of counsel), for Rockland County Board of Elections, respondent.

      Joel J. Flick and Paul V. Nowicki for Philip J. Bosco, respondent.
   OPINION OF THE COURT

Order affirmed, without costs, for reasons stated in the memorandum at the Appellate Division (104 AD2d 462).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    In the Matter of Steven C. Tenneriello et al., Respondents, v Board of Elections of the City of New York, Respondent, and Lawrence Knipel et al., Appellants.
    Argued August 27, 1984;
    decided August 28, 1984

      APPEARANCES OF COUNSEL

      Martin E. Connor for appellants.

      Everett N. Hughes for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment appealed from and order of the Appellate Division brought up for review should be affirmed, without costs.

Section 16-116 of the Election Law provides that a special proceeding brought under article 16 “shall be heard upon a verified petition.” In the case of proceedings instituted by the State or a board of elections, the petition must be verified by a person specified in accordance with rules promulgated by the State Board of Elections (Election Law, § 16-116), but the Legislature has not otherwise required that the verification be made by any particular person. Consequently, the question of who may verify the petition is governed by CPLR 3020, which permits an attorney to verify where, as here, he has an office in a county other than the one in which petitioners are (CPLR 3020, subd [d], par 3).

Appellants do not on this appeal challenge the form of the verification (see CPLR 3021).

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Simons and Kaye concur; Judge Meyer taking no part.

Judgment appealed from and order of the Appellate Division brought up for review affirmed, without costs, in a memorandum.


text:
    John Cain, Respondent, v Bessie Paissios et al., Appellants.
    Submitted July 23, 1984;
    decided September 6, 1984
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain it (NY Const, art VI, § 3, subd b; CPLR 5602, subd [a], par 1).

Motion for a stay dismissed as academic.


text:
    Kal Associates, Appellant, v Ben-Tom Restaurant, Inc., Respondent.
    Submitted July 30, 1984;
    decided September 6, 1984
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain it (NY Const, art VI, § 3, subd b, par [7]; CPLR 5602, subd [a], par 1).


text:
    Zand Realty, Inc., Respondent, v Nonna Osipova, Appellant.
    Submitted July 16, 1984;
    decided September 6, 1984
   Motion for leave to appeal, etc., dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain it (NY Const, art VI, § 3, subd b; CPLR 5602, subd [a], par 1).


text:
    In the Matter of Robert E. Flower et al., Respondents, v Antonia D’Apice et al., Constituting the Board of Elections of the County of Westchester, Respondents, and Daniel Sadofsky, Appellant.
    Argued September 7, 1984;
    decided September 7, 1984

      APPEARANCES OF COUNSEL

      Edward T. McCormack for appellant.

      Guy T. Parisi for Robert E. Flower and another, respondents.
   OPINION OF THE COURT

Order affirmed, without costs, and this court’s stay vacated, in the following memorandum: We conclude that the factual determinations made by the Appellate Division more nearly comport with the weight of the evidence.

Concur: Chief Judge Cooke and Judges Jasen, Jones, Meyer, Simons and Kaye. Taking no part: Judge Wachtler.


text:
    Jacqueline Crespi, Appellant, v Richard Ihrig, Defendant, and Air Canada, Ltd., Respondent.
    Decided September 11, 1984

      APPEARANCES OF COUNSEL

      Louis C. Fieland for appellant.

      Maurice L. Noyer and Peter Hoenig for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (99 AD2d 717; see, also, Maines v Cronomer Val. Fire Dept., 50 NY2d 535).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    The People of the State of New York, Appellant, v Andrew D. Blim, Respondent.
    Decided September 11, 1984
    APPEARANCES OF COUNSEL

      Stewart E. McDivitt, District Attorney (John L. Callaghan of counsel), for appellant.

      L. Richard Stumbar for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the case remitted to the Appellate Division for consideration of the other alleged errors.

Defendant was convicted at trial of burglary in the third degree. Sergeant Daryl Avery of the Schuyler County Sheriff’s Department testified for the prosecution that in the early morning hours of November 25, 1981 he responded to a burglar alarm at the Moose Lodge in Montour Falls. According to Avery, while walking around the building he observed two people running in front of him. Avery drew his revolver and ordered them to halt, which a man later identified as James Lewis did. The other person continued running but turned his head back long enough for Avery to recognize him as defendant, Andrew Blim, whom he had long known. After turning Lewis over to another officer, Avery searched the area but was unable to locate defendant. Defendant was later apprehended at Lewis’s apartment.

Avery then entered the lodge through an open door and observed on the floor two crowbars, a two -by-four piece of wood and wedges used to secure the door, and a flashlight. He also noticed that a security chain lock had been knocked off and the door molding was torn out.

James Lewis was called as a witness for the People after entering a guilty plea pursuant to a bargain in which the prosecutor agreed to a maximum sentence of one year and not to prosecute him for 20 other burglaries to which he had admitted. Lewis testified that he entered the lodge with defendant through an unlocked door armed with a flashlight and two crowbars with which to open the safe to take any money in it. Defendant, who had made deliveries to the lodge for a soda company, had told Lewis that he thought the alarms in the building did not work. Upon entering the lodge, however, they noticed a red light flashing so they left the building. They waited for a few minutes and then decided to return to the lodge. Lewis found a metal box on the bar and took $12 from it while defendant went to the room that contained the safe. Lewis then heard a noise at the side door and looked outside and saw a Sheriff’s department car in the parking lot. The two men then ran out of the lodge but as they ran away someone shouted at them to halt. Lewis stopped and was arrested by Sergeant Avery but defendant continued to run away. According to Lewis, he flushed the money he had taken from the lodge down a toilet in the county jail.

A barmaid from the lodge testified that there had been $11 in a metal box when she left the premises the night before the break-in but the money was not in the box the next day. She was impeached with a petit larceny conviction obtained against her about the same time as the present incident. The governor of the lodge testified that he had checked the metal box a day or two before the incident and had observed $11 inside it. He checked the box again on the morning after and the money was missing.

Prior to summations, defendant requested that the court charge criminal trespass in the third degree as a lesser included offense but the trial court denied the request. The Appellate Division reversed, ruling that the lesser included offense should have been submitted to the jury.

Criminal trespass in the third degree as then defined by subdivision (a) of section 140.10 of the Penal Law was a lesser included offense of burglary in the third degree because the burglary offense includes all the elements of the criminal trespass offense, plus an intent to commit a crime in the building entered or remained in unlawfully. Thus, it is impossible to commit the greater offense without at the same time committing the lesser (People v Glover, 57 NY2d 61, 63). Nevertheless, the trial court properly refused defendant’s requested charge because under no reasonable view of the evidence could the jury have found that defendant committed the lesser offense but not the greater (CPL 300.50, subds 1, 2).

The Appellate Division concluded that the jury could have rejected Lewis’s testimony because of the favorable plea bargain he received for his testimony. In People v Scarborough (49 NY2d 364, 369-370) we held that in order to charge a lesser included offense there must be “some identifiable, rational basis on which the jury could reject a portion of the prosecution’s case which is indispensable to establishment of the higher crime and yet accept so much of the proof as would establish the lesser crime”. Although Lewis’s self-interest would be a rational basis for discrediting his testimony, this interest would have affected his entire testimony. It would affect both his testimony that he and defendant unlawfully entered the lodge which would establish the criminal trespass charge and that they did so with the intent to steal property from the lodge, the additional element for the burglary charge. There is no rational basis for rejecting his testimony concerning their intent to commit a crime in the lodge while accepting his testimony with respect to their unlawful entry into the lodge.

Defendant argues that, the jury could have rejected Lewis’s entire testimony along with the testimony of the barmaid and the lodge governor and convicted him of criminal trespass based on the testimony of Sergeant Avery. Avery merely testified, however, that as he circled the building on arriving at the scene he saw defendant running in front of him. This testimony was not sufficient to establish that defendant had entered or remained unlawfully in the lodge but only showed his suspicious presence in the area of a building that had been forcibly entered. The prosecution case thus either established a third degree burglary or nothing at all, and it was not error for the trial court to deny defendant’s request to charge criminal trespass as a lesser included offense.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed and case remitted to the Appellate Division, Third Department, for further proceedings in accordance with the memorandum herein.

       Avery’s testimony was that: “As I was walking south on the east side of the building two subjects came into my view from my right * * * I saw the two suspects running in front of me, I drew my service revolver, ordered them to halt * * * One subject halted, the other one proceeded up over the top of the knoll onto Route 14.” Avery further described defendant’s movements: “he ran from my right to my left and up the hill.”


text:
    In the Matter of Stewart R. Wheeler, Appellant, v City of Elmira et al., Respondents, and Esther Gladke et al., Intervenors-Respondents.
    Decided September 11, 1984

      APPEARANCES OF COUNSEL

      Thomas W. Farstad for appellant.

      Gerald E. DeFilippo, Corporation Counsel (Steven W. Forrest of counsel), for respondent.

      Samuel J. Castellino for intervenor-respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated in its memorandum. We add that petitioner’s papers: (1) do not reveal what the rental for the second floor apartment is; (2) seek to establish the maximum potential rental for a first floor apartment, if conversion is permitted, through the affidavit of an attorney which does not establish his status as an expert on real estate valuation; (3) fail to recognize that, because one- and two-family residences are permitted uses in a residential “A” district, conversion of the first floor to one apartment would require only a setback or area variance, not a use variance; and (4) do not establish that more than one apartment (which would require a use variance but would also increase the income) cannot be created in the 2,650 square feet of the first floor.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.


text:
    Loretta Hambsch, Appellant, v New York City Transit Authority, Respondent.
    Decided September 11, 1984

      APPEARANCES OF COUNSEL

      Stephen T. Mangiaracina for appellant.

      William E. Rosa and Lawrence Heisler for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff seeks to recover for personal injuries sustained when she was struck by defendant’s bus, asserting her right to common-law recovery because she sustained a “serious injury” as defined by subdivision 4 of section 671 of the Insurance Law. The Appellate Division found that her evidence was insufficient to establish a prima facie case and reversed the judgment of Special Term entered upon a jury verdict.

Under the “No-Fault Law” (Insurance Law, §§ 671-678), there is “no right of recovery for non-economic loss, except in the case of a serious injury, or for basic economic loss” (Insurance Law, § 673, subd 1). In this case plaintiff presented evidence of three types of “serious injury” — a fracture, a permanent loss of use of a body function, and a nonpermanent impairment that prevented her from performing substantially all of her usual and customary activities for at least 90 out of the 180 days immediately following the accident. The jury found for plaintiff on the first two of these types of serious injury and against her on the third.

Plaintiff’s own evidence contradicted her claim that she had sustained a permanent loss of use of a body function and the Appellate Division correctly held that plaintiff had failed to establish a prima facie case of serious injury based on a fracture (see Licari v Elliott, 57 NY2d 230).

With respect to the claimed fracture, plaintiff’s physician testified that, based on his reading of an X ray of her lower back, she was suffering from spondylolisthesis, a misalignment of the vertebra. It was error to permit the doctor’s testimony without producing the X rays and introducing them into evidence (see Marion v Coon Constr. Co., 216 NY 178, 182; Richter v Trailways of New England, 28 AD2d 737, 738; Cellamare v Third Ave. Tr. Corp., 273 App Div 260). There was no objection to his testimony, however, and the matter is not preserved for our review.

Plaintiff’s physician also testified that spondylolisthesis is caused by a fracture. The basis for this medical opinion was a discussion two days prior to trial with a radiologist who held that opinion because of an unknown study that he did not participate in. This evidence was objected to and the Appellate Division correctly found this opinion testimony inadmissible.

“It is settled and unquestioned law that opinion evidence must be based on facts in the record or personally known to the witness” (Cassano v Hagstrom, 5 NY2d 643, 646; Lopato v Kinney Rent-A-Car, 73 AD2d 565, 566). In People v Sugden (35 NY2d 453), we recognized two limited exceptions to this rule and held that an expert may rely on out-of-court material if “it is of a kind accepted in the profession as reliable in forming a professional opinion” or if it “comes from a witness subject to full cross-examination on the trial” (id., at pp 460, 461).

In order to qualify for the “professional reliability” exception, there must be evidence establishing the reliability of the out-of-court material (see Borden v Brady, 92 AD2d 983, 984 [Yesawich, J., concurring]; People v Gupta, 87 AD2d 991; People v Branton, 67 AD2d 664, 665; People v Miller, 57 AD2d 668, 669; People v Borcsok, 114 Misc 2d 810, 811-813; People v De Zimm, 112 Misc 2d 753, 760-762). Plaintiff presented no such evidence in the instant case and therefore the physician’s opinion was inadmissible. Without this testimony there was no basis for finding that the spondylolisthesis was the result of a fracture sufficient to constitute a “serious injury”.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.


text:
    Gwendoline B. Bewers et al., Respondents, v American Home Products Corporation et al., Appellants. (And Two Other Actions.)
    Submitted August 13, 1984;
    decided September 11, 1984
   Motion to vacate the Court of Appeals order of dismissal dated July 20,1984 granted and the appeal reinstated. The time within which appellants are to comply with section 500.4 (e) and (f) of the Rules of the Court of Appeals (22 NYCRR 500.4 [e], [f]) is extended to October 2, 1984. [See 63 NY2d 677.]


text:
    The People of the State of New York ex rel. John Martinez, Appellant, v Wilson Walters, as Superintendent of Ossining Correctional Facility, et al., Respondents.
    Submitted August 6, 1984;
    decided September 11, 1984
   Motion to dismiss appeal granted and appeal dismissed, without costs, upon the ground that appellant is not presently available to obey the mandate of the court in the event of an affirmance (see People ex rel. Wildes v New York State Bd. of Parole, 45 NY2d 961; People ex rel. Mallin v Kuh, 38 NY2d 982; People v Sullivan, 28 NY2d 900; People v Del Rio, 14 NY2d 165; People v Genet, 59 NY 80).


text:
    Molly Misodi, Respondent, v Edwin Fondo, Appellant.
    Submitted July 16, 1984;
    decided September 11, 1984
   Motion for leave to appeal dismissed as untimely (CPLR 5513, subd [b]).


text:
    In the Matter of Anthony A. Molea, as Acting District Attorney of Westchester County, Respondent, v Carmine C. Marasco, as Judge of the County Court, Westchester County, et al., Respondents, and Kevin Magee, Appellant.
    Submitted July 2, 1984;
    decided September 11, 1984
   Motion for leave to appeal granted. Motion for a stay of the pending trial denied, without prejudice to the right of defendant to make application therefor to another court or courts.


text:
    In the Matter of Rye Psychiatric Hospital Center, Inc., et al., Respondents, v Jack C. Schoenholtz et al., Appellants.
    Decided September 11, 1984
   Appeal dismissed, without costs, by the court sua sponte, upon the ground that appellants are not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]).


text:
    In the Matter of Annie Johnson et al., Appellants, v Robert S. Black et al., Respondents.
    Decided September 11, 1984
   On the court’s own motion, appeal purportedly taken as of right orally, and oral application for leave to appeal, dismissed, without costs, each for insufficiency of the submissions.


text:
    Rokina Optical Co., Inc., Respondent, v Camera King, Inc., Appellant.
    Decided September 13, 1984

      APPEARANCES OF COUNSEL

      Benjamin H. Segal for appellant.

      Victor E. Didia for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the case remitted to Supreme Court for a new trial on the issue of damages.

This action was commenced by summons and complaint alleging that defendant had accepted merchandise delivered by plaintiff for which payment was due. The complaint demanded judgment in the amount of $90,161.30, representing the amount allegedly owed for the merchandise. In its answer, defendant contended that certain of the goods had been paid for by check, that other payments were made by applying the cost to defendant of advertising plaintiff’s merchandise in trade publications. as credit against the sum owed, and that a portion of the merchandise had been returned to plaintiff. Thereafter, plaintiff served a set of interrogatories, which defendant failed to answer. As a result, plaintiff moved, pursuant to CPLR 3126 (subd 3), for an order striking defendant’s answer and for entry of judgment in its favor. After obtaining a three-week adjournment of the motion, defendant defaulted, resulting in an order granting the motion. Judgment was entered for the full relief demanded in the complaint. Two months later, defendant obtained an order to show cause seeking an order vacating the default judgment.

Special Term granted defendant’s motion to vacate only as to the amount of the judgment, and ordered a trial “solely on the issue of the amount of damages.” Special Term’s order limited the evidence to be taken at the trial to that establishing the reasonable value of the merchandise delivered to defendant, thus precluding evidence relating to claimed payments and credits. Defendant objected at trial to the restricted scope of admissible evidence, asserting that, if allowed, it would show that it owed plaintiff only $3,678.90. Following the trial, the court reduced the judgment to $62,053.95 based on plaintiff’s concession that it had realized $28,107.55 on resale of returned merchandise. The Appellate Division affirmed, without opinion.

The limitation imposed by Special Term’s vacatur order on the scope of the evidence permitted at the damages trial does not comport with the law previously enunciated by this court concerning the determination of damages following a default (see Reynolds Securities v Underwriters Bank & Trust Co., 44 NY2d 568; McClelland v Climax Hosiery Mills, 252 NY 347). Thus, the Appellate Division erred in affirming the amended judgment which was necessarily affected by the erroneous vacatur order (see CPLR 5501, subd [a], par 1).

Unless the damages sought in an action are for a “sum certain or for a sum which can by computation be made certain” (CPLR 3215, subd [a]), judgment against a defaulting party may be entered only upon application to the court along with notice to the defaulting party and “a full opportunity to cross-examine witnesses, give testimony and offer proof in mitigation of damages” (Reynolds Securities v Underwriters Bank & Trust Co., 44 NY2d, at p 572). The rationale for this rule is the principle that a defendant whose answer is stricken as a result of a default admits all traversable allegations in the complaint, including the basic allegation of liability, but does not admit the plaintiff’s conclusion as to damages (McClelland v Climax Hosiery Mills, 252 NY, at p 351). Accordingly, at a trial to determine the amount of a plaintiff’s real damages, the defendant will not be allowed to introduce evidence tending to defeat the plaintiff’s cause of action. Nor is evidence admissible concerning setoffs arising or existing separate and distinct from the transactions out of which the plaintiff’s cause of action arises. Evidence will be allowed, however, involving circumstances intrinsic to the transactions at issue that, if proven, will be determinative of the plaintiff’s real damages, which cannot be established by the mere fact of the defendant’s default.

In the present case, the evidence that defendant sought to introduce at trial concerning alleged payments made and credit earned through advertisement of the subject merchandise clearly relates to the transactions at the heart of plaintiff’s cause of action, and thus, its preclusion was error. Plaintiff’s argument that defendant should be restrained in its ability to present evidence on the damages issue due to the alleged contumacious nature of its default is unavailing. The existence or degree of “fault” on the part of defendant — against whom liability has been conclusively established and who is precluded from asserting setoffs and counterclaims against plaintiff as a result of his default — is of no relevance to the question of plaintiff’s real damages.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, with costs, and case remitted to Supreme Court, New York County, for a new trial on the issue of damages in a memorandum.


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    The People of the State of New York, Respondent, v Timothy Tillotson, Appellant.
    Decided September 13, 1984

      APPEARANCES OF COUNSEL

      Richard H. Speranza, Public Defender (Gregory A. Pope of counsel), for appellant.

      Peter Broderick, District Attorney (Shavasp Hanesian of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, by vacating the conviction and sentences as to counts one through three of the indictment and dismissing said counts, and the matter remitted to Niagara County Court to determine whether resentencing is appropriate in view of this court’s modification, and, as so modified, affirmed.

Defendant was convicted upon a jury verdict of six counts involving separate burglaries at Dan’s MiniMart and Rosh’s Roost Tavern and sentenced to multiple concurrent sentences, the longest of which had a maximum of six years and a minimum of three years’ imprisonment. The principal prosecution witnesses at trial were codefendants Robert Gates and John Rutherford, each of whom had pleaded guilty to reduced charges. Gates testified only that defendant was with him on the day of the crime. Rutherford gave a detailed account of defendant’s involvement in both burglaries.

Rutherford was an accomplice as a matter of law, he was an actual participant in the crimes charged (CPL 60.22, subd 2), and corroboration of his testimony was required to sustain the convictions. The People’s evidence had to establish that defendant was connected with the crimes, not to the extent of proving him guilty of them, but sufficiently to satisfy the jury that Rutherford was telling the truth (People v Smith, 55 NY2d 945; People v Daniels, 37 NY2d 624).

Defendant’s participation in the tavern burglary was independently corroborated by the testimony of a Sheriff’s assistant who tracked defendant with a bloodhound from the scene of the crime and found him in a nearby field with codefendant Gates and by evidence that defendant possessed the same amount of money taken from the tavern. Defendant’s involvement in the Dan’s MiniMart burglary, however, was not sufficiently corroborated. The only evidence tending to connect defendant with that burglary was Gates’ testimony that he was with defendant on the day of the crime which, standing alone, is insufficient (see People v Kress, 284 NY 452, 460). Accordingly, the counts of the indictment relating to the Dan’s MiniMart burglary (numbered 1-3) should have been dismissed at the close of the People’s case.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order modified and case remitted to Niagara County Court for further proceedings in accordance with the memorandum herein and, as so modified, affirmed.


text:
    Bernice Miller, Respondent, v Joseph Miller, Appellant.
    Decided September 13, 1984

      APPEARANCES OF COUNSEL

      Donald M. Nussbaum for appellant.

      Hannah Berkowitz for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment appealed from and the order of the Appellate Division brought up for review should be affirmed, with costs.

Defendant cannot now, after more than 20 years during which he complied substantially with the terms of a separation agreement, challenge the existence of that agreement, which has been incorporated in a bilateral foreign decree of divorce, the validity of which he concedes (see Galyn v Schwartz, 56 NY2d 969, 972; Greschler v Greschler, 51 NY2d 368, 376-377).

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, in a memorandum.


text:
    In the Matter of John Roginski, Appellant, v Henry W. Rose, as Chairman of the Zoning Board of Appeals of the Town of Hempstead, et al., Respondents.
    Decided September 13, 1984

      APPEARANCES OF COUNSEL

      William S. Cohn for appellant.

      W. Kenneth Chave, Jr., Town Attorney (.Denise Harvey Sher of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), judgment affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (97 AD2d 417).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    In the Matter of Antonio Hernandez, Appellant. H. Lieblich & Company, Inc., et al., Respondents.
    Decided September 13, 1984

      APPEARANCES OF COUNSEL

      Gerald A. Dwyer for appellant.

      Frank A. Romano for H. Lieblich & Co., respondent.

      Robert Abrams, Attorney-General (.Frederick M. Paola of counsel), for Lillian Roberts, as Commissioner of Labor, respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (97 AD2d 585).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    In the Matter of Dominick Minerva, Appellant, v Benjamin Ward, as Commissioner of the Correction Department of the City of New York, et al., Respondents.
    Decided September 13, 1984

      APPEARANCES OF COUNSEL

      Raymond E. Kerno for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel CMiriam Skolnick of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (101 AD2d 754).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    Edward Epstein et al., Respondents, v Eliahu Lipkis et al., Appellants, and New Way Fuel Oil Company et al., Respondents.
    Submitted July 16, 1984;
    decided September 13, 1984
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain it (NY Const, art VI, § 3, subd b, par [7]; CPLR 5602, subd [a], par 1), with $20 costs and necessary reproduction disbursements to petitioners-respondents.


text:
    Farm Stores, Inc., Appellant-Respondent, v School Feeding Corp. et al., Respondents, and Martin Lifton, Respondent-Appellant.
    Submitted July 30, 1984;
    decided September 13, 1984
   Motion to dismiss respondent-appellant Lifton’s cross appeal granted and cross appeal dismissed, without costs, upon the ground that said cross appellant is not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]). Motion to dismiss petitioner-appellant-respondent’s appeal denied.


text:
    John L. Grady et al., Appellants, v Roderick A. McLean, Respondent.
    Submitted June 18, 1984;
    decided September 13, 1984
   Motion denied insofar as it seeks leave to appeal from so much of the Appellate Division order dated March 6,1984, as affirmed the order of Supreme Court granting defendant’s cross motion to dismiss the complaint; motion otherwise dismissed upon the ground that the remaining portion of the March 6, 1984 order and the two orders dated May 25, 1984 sought to be appealed from do not finally determine the action within the meaning of the Constitution.


text:
    Kings Park Classroom Teachers Association, Appellant, v Kings Park Central School District, Respondent.
    Submitted August 13, 1984;
    decided September 13, 1984
   Motion to dismiss the appeal granted and the appeal dismissed, with costs and $20 costs of motion, for untimeliness. In this case, the postmark does not establish that service was not made on the earlier date stated in the affidavit of service (CPLR 2103, subd [b], par 2; see Engel v Lichterman, 62 NY2d 943).


text:
    In the Matter of the Arbitration between the Town of Haverstraw, Respondent, and the Rockland County Patrolmen’s Benevolent Association, Appellant.
    Submitted August 13, 1984;
    decided September 13, 1984
   Motion for leave to appeal denied upon the ground that an appeal lies as of right (CPLR 5601, subd [a]).


text:
    David Mortise, Doing Business as Empire Construction Co., Appellant, v 55 Liberty Owners Corp. et al., Defendants, and Christopher Anderson et al., Respondents.
    Argued September 12, 1984;
    decided September 18, 1984

      APPEARANCES OF COUNSEL

      Robert S. Levy for appellant.

      William J. Postner for Christopher Anderson, respondent.

      John O. Delamater for George Nash and another, respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (102 AD2d 719).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    The People of the State of New York, Appellant, v Jose Vincente, Respondent.
    Decided September 18, 1984

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (Donald J. Siewert of counsel), for appellant.

      Terrence R. Real and William E. Hellerstein for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The decision of the suppression court granting defendant’s motion to suppress physical evidence turned on its view of the testifying police officer’s credibility and on the inferences to be drawn from the facts. Thus, the issue whether the police acted reasonably in stopping and searching defendant is a mixed question of law and fact, which will be reviewed by this court only to the extent of determining whether there was evidence at the suppression hearing to support the hearing court’s determination (People v Fernandez, 58 NY2d 791; People v Harrison, 57 NY2d 470, 477). The record here contains evidence sufficient to support the suppression court’s holding, mandating affirmance of the Appellate Division order.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed in a memorandum.


text:
    Frank Racanelli et al., Appellants, v Village of Dobbs Ferry et al., Respondents.
    Decided September 18, 1984

      APPEARANCES OF COUNSEL

      Anthony J. Pirrotti for appellants.

      John L. Murray for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (101 AD2d 884).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    A. R. Fuels, Inc., Appellant, v City of New York, Respondent.
    Decided September 18, 1984

      APPEARANCES OF COUNSEL

      George Sassower for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Alfred L. Nardelli of counsel), for respondent.

      Robert Abrams, Attorney-General, in his statutory capacity under section 71 of the Executive Law.
   OPINION OF THE COURT

Memorandum.

The judgment of the Supreme Court, New York County, appealed from, and the orders of the Appellate Division brought up for review, should be affirmed, with costs.

Appellant, A. R Fuels, Inc., brought this action for restitution in connection with deliveries of No. 2 fuel oil and No. 2D diesel fuel to respondent, the City of New York, pursuant to a judgment that was later reversed by the Appellate Division (72 AD2d 517) in a decision affirmed by this court (49 NY2d 749). This appeal pursuant to CPLR 5601 (subd [d]) brings up for review two prior nonfinal determinations of the Appellate Division, and presents questions concerning the determination of the amount of restitution to be awarded and the rate of interest to be applied. In the first determination brought up for review (83 AD2d 510), the Appellate Division affirmed the denial of appellant’s motion for summary judgment. After trial, in the second determination at issue (93 AD2d 757), the Appellate Division ruled: (1) that Trial Term had erred in determining the market price of the No. 2D diesel fuel delivered (and, accordingly, the amount of restitution due appellant for such deliveries) by reference to posted tank wagon delivery prices for No. 2 fuel oil, rather than to the separate posted prices for diesel fuel; and (2) that Trial Term correctly applied the 3% interest rate provided in section 3-a of the General Municipal Law to the restitution award, and that that statutory interest rate was not an unconstitutional taking of property without just compensation.

Appellant’s motion for summary judgment properly was denied. A material issue of fact as to the use of posted prices to determine the amount of restitution due for deliveries of No. 2D diesel fuel remained for resolution, and was in fact later resolved at trial. With respect to the amount of restitution due appellant, upon reviewing the record we conclude that the Appellate Division’s finding — that the separate posted prices for diesel fuel should be used to determine the market price of that fuel — more nearly comports with the weight of evidence at trial. While appellant complains of the apparent reliance by the Appellate Division on an affidavit submitted after the close of evidence, the one-page affidavit was merely cumulative of the weight of evidence submitted concerning posted prices, and any error concerning its consideration was harmless. (Fowler v International Ry. Co., 217 App Div 537, 540, affd 244 NY 592.) Finally, appellant’s contention that the rate of interest provided by section 3-a of the General Municipal Law amounts to an unconstitutional taking of property without just compensation has already been rejected by this court. (See Acme Bldrs. v County of Nassau, 31 NY2d 924, 925.)

There being no error in the orders of the Appellate Division brought up for review, those orders and the final judgment entered by the Supreme Court below should be affirmed.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), judgment appealed from and orders of the Appellate Division brought up for review affirmed, with costs, in a memorandum.


text:
    Hiram Garcia, Appellant, v Biro Manufacturing Company, Inc., Respondent. (And Third-Party and Fourth-Party Actions.)
    Decided September 18, 1984

      APPEARANCES OF COUNSEL

      Brian J. Shoot for appellant.

      Anthony J. McNulty and Donald F. Ayers for respondent.
   OPINION OF THE COURT

‘Memorandum.

The order of the Appellate Division should be reversed and the order of Special Term, which denied defendant’s motion for summary judgment with permission to renew, reinstated. Defendant’s contention that the machine had a safety guard when manufactured which was thereafter removed rests on the affidavit of its president, which states the model number and serial number of the machine on the basis of advice of defendant’s attorneys, without stating the basis of the attorneys’ information. Defendant has, therefore, failed to meet its burden of establishing its defense “sufficiently to warrant the court as a matter of law in directing judgment” in its favor (CPLR 3212, subd [b]).

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, with costs, and the order of Supreme Court, Bronx County, reinstated in a memorandum.


text:
    John Gazda, on Behalf of Himself and All Other Share-holders of T.J.’s Big Boy, Inc., and in the Right of T.J.’s Big Boy, Inc., Appellant, v Anthony T. Kolinski et al., Respondents. (And Another Action.)
    Submitted August 13, 1984;
    decided September 18, 1984
   Motion for leave to appeal, treated as a motion to vacate this court’s prior order dismissing plaintiff’s motion for leave to appeal, denied, with $20 costs and necessary reproduction disbursements. [See 63 NY2d 672.]

Judge Simons taking no part.


text:
    Terri Landon, an Infant, by Her Father and Natural Guardian, Leonard Landon, et al., Respondents, v New York Hospital et al., Appellants.
    Decided September 18, 1984
   Appeal taken by Leonard Landon dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.

Judge Meyer taking no part.


text:
    Richard Sherrill, Respondent, v Grayco Builders, Inc., et al., Appellants, and Housing Preservation and Development Department of the City of New York, Respondent. (And Two Other Actions)
    Submitted August 20, 1984;
    decided September 18, 1984
   Motion for a stay granted, except as to respondent Housing Preservation and Development Department of City of New York, to the extent of staying the enforcement of the order of the Appellate Division pending determination of the appeal herein; motion otherwise denied without prejudice to any right to make application for additional relief to another court or courts.


text:
    The People of the State of New York, Respondent, v Charles Wing and Sharon Wing, Appellants.
    Argued September 7, 1984;
    decided September 20, 1984

      APPEARANCES OF COUNSEL

      Edward J. Nowak, Public Defender (Peter D. Braun of counsel), for appellants.

      Howard R. Relin, District Attorney CMichael J. Nelson of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the County Court should be reversed and the case remitted to the Town Court of Chili for further proceedings on the information.

The abundance of inadmissible hearsay evidence permitted by the trial court created a “substantial probability of irreparable prejudice” to defendants’ case. (Matter of Leon RR, 48 NY2d 117, 122; see, also, People v Crimmins, 36 NY2d 230, 242.) Over the objections of the defendants, the prosecution was repeatedly allowed to elicit testimony and to introduce documents that were clearly hearsay, despite the absence of any recognized exception to the rule against hearsay. Considering these errors cumulatively, it cannot be said that they were harmless.

In view of the foregoing, we need not reach defendants’ other contentions.

Chief Judge Cooke and Judges Jasen, Jones, Meyer, Simons and Kaye concur in memorandum; Judge Wachtler taking no part.

Order reversed, etc.