author: Cooke, J.

text:
    In the Matter of Consolidated Edison Company of New York, Inc., Respondent, v Walter Hoffman et al., Constituting the Zoning Board of Appeals of the Village of Buchanan, Appellants. Hudson River Fishermen’s Association, Intervenor-Respondent.
    Argued January 5, 1978;
    decided February 14, 1978

      POINTS OF COUNSEL

      Carl R. D’Alvia, Village Attorney (Henry J. Smith and Gerald Nolan of counsel), for appellants.
    I. The determination by the court below is in direct conflict with the law, as settled by numerous decisions of the courts of this State. (Matter of Otto v Steinhilber, 282 NY 71; Williams v Town of Oyster Bay, 32 NY2d 78; Dauernheim v Town Bd. of Town of Hemp-stead, 33 NY2d 468; Ministers, Elders & Deacons of Ref. Prot. Dutch Church of Greenville v Schultz, 37 AD2d 611; Steele v Shultz, 40 AD2d 1027; Matter of Niagara Mohawk Power Co. v City of Fulton, 8 AD2d 523; Matter of Consolidated Edison Co. of N. Y. v Village of Briarcliff Manor, 208 Misc 295; Matter of Clark v Board of Zoning Appeals of Town of Hemp-stead, 301 NY 86; Matter of Levy v Board of Stds. & Appeals of City of N. Y, 267 NY 347; Van Deusen v Jackson, 35 AD2d 58, 28 NY2d 608.) II. Neither the zoning ordinance nor the decision of the zoning board contravened State law, or conflicted in any way with Con Edison’s duty to furnish electric service. (Matter of Consolidated Edison Co. of N. Y. v Village of Briarcliff Manor, 208 Misc 295.) III. Neither the Buchanan Zoning Ordinance nor the decision of the zoning board pursuant thereto contravenes the supremacy clause or the interstate commerce clause of the United States Constitution. (Northern States Power Co. v State of Minnesota, 447 F2d 1143, 405 US 1035; State of New Hampshire v Atomic Energy Comm., 406 F2d 170; Teeval Co. v Stern, 301 NY 346; Bradley v Public Utilities Comm., 289 US 92; Head v New Mexico Bd., 374 US 424; New York Cent. R. R. Co. v Lefkowitz, 46 Misc 2d 68, 28 AD2d 735, 23 NY2d 1.)

      Edward J. Sack for Consolidated Edison Company of New York, Inc., respondent.
    I. The court below correctly held that the zoning board is prohibited from preventing Con Edison from building a natural draft, cooling tower for its Indian Point No. 2 nuclear power plant because of Con Edison’s duty to furnish utility service under State law. (City of Albany v Anthony, 262 App Div 401; People v Blue Ribbon Ice Cream Co., 1 Misc 2d 453; Incorporated Vil. of Lloyd Harbor v Town of Huntington, 4 NY2d 182; Jewish Consumptives’ Relief Soc. v Town of Woodbury, 230 App Div 228, 256 NY 619; Union Free School Dist. No. 14 of Town of Hempstead, Nassau County v Village of Hewlett Bay Park, 198 Misc 932, 278 App Div 706; Matter of Board of Co-op. Educational Servs. of Nassau County v Gaynor, 60 Misc 2d 316, 33 AD2d 701;
      Matter of Long Is. Water Corp. v Michaelis, 28 AD2d 887; Matter of Long Is. Light. Co. v Griffin, 272 App Div 551, 297 NY 897; Matter of Consolidated Edison Co. of N. Y. v Village of Briarcliff Manor, 208 Misc 295; Matter of Niagara Mohawk Power Corp. v City of Fulton, 8 AD2d 523.) II. The courts below correctly found that Federal pre-emption prohibits appellants from preventing Con Edison from building a natural draft, cooling tower for its Indian Point No. 2 nuclear power plant. (Rice v Santa Fe Elevator Corp., 331 US 218; City of Burbank v Lockheed Air Term., 411 US 624; Hill Packing Co. v City of New York, 295 NY 527, 331 US 787; Hackensack Meadowlands Dev. Comm, v Transcontinental Gas Pipe Line Corp., 464 F2d 1358, 409 US 1118; Corporation Comm, of Okla. v Federal Power Comm., 362 F Supp 522, 415 US 961; South Term. Corp. v Environmental Protection Agency, 504 F2d 646; New York State Natural Gas Corp. v Town of Elma, 182 F Supp 1; Calvert Cliffs’ Coordinating Committee v United States Atomic Energy Comm., 449 F2d 1109.) III. The record in this proceeding supports the granting of the variance applied for by Con Edison. (Boomer v Atlantic Cement Co., 26 NY2d 219; Matter of North Amer. Holding Corp. v Murdock, 9 Misc 2d 632, 6 NY2d 902; Matter of Jayne Estates v Raynor, 22 NY2d 417; Matter of Ullian v Town Bd. of Town of Hempstead, 68 Misc 2d 393, 38 AD2d 850.) IV. Appellants’ procedural issues are without merit. (Carruthers v Waite Min. Co., 306 NY 136; Matter of Board of Trustees of Common School Dist. No. 2 of Town of Dickinson v Commissioner of Educ. of State of N. Y, 37 AD2d 743; Matter of Thompson Water Works Co. v Diamond, 44 AD2d 487; Matter of Leventhal v Michaelis, 29 Misc 2d 831; Matter of Fulling v Palumbo, 21 NY2d 30; Matter of Overhill Bldg. Co. v Delany, 28 NY2d 449; Matter of Comparato v Knauf, 61 Misc 2d 245; Matter of Diocese of Rochester v Planning Bd. of Town of Brighton, 1 NY2d 508; Matter of Lakeland Water Dist. v Onondaga County Water Auth., 24 NY2d 400; Young Men’s Christian Assn, v Rochester Pure Waters Dist., 37 NY2d 371.)

      Ross Sandler for Hudson River Fishermen’s Association, intervenor-respondent.
    I. The Nuclear Regulatory Commission, in the exercise of its powers under the National Environmental Policy Act, has concluded that the Indian Point Unit No. 2 must be upgraded to more fully protect the environment. That decision effectively sets a minimum requirement for protection of the environment which the Village of Buchanan may not circumvent. (State of New Hampshire v Atomic Energy Comm., 406 F2d 170; Calvert Cliffs’ Coordinating Committee v United States Atomic Energy Comm., 449 F2d 1109; Environmental Defense Fund v Corps of Engrs. of U. S. Army, 470 F2d 289; Matter of Consolidated Edison Co. of N Y. v Village of Briarcliff Manor, 208 Misc 295; Matter of Long Is. Water Corp. v Michaelis, 28 AD2d 887; Matter of Long Is. Light. Co. v Griffin, 272 App Div 551; Matter of Niagara Mohawk Power Corp. v City of Fulton, 8 App Div 523; Matter of New York State Elec. & Gas Corp. v McCabe, 82 Misc 2d 898; Florida Avocado Growers v Paul, 373 US 132; City of Burbank v Lockheed Air Term., 411 US 624.) II. This case is properly before this court. (Matter of Thompson Water Works Co. v Diamond, 44 AD2d 487; Matter of Board of Trustees of Common School Dist. No. 2 of Town of Dickinson v Commissioner of Educ. of State of N. Y., 37 AD2d 743; Matter of Niagara Mohawk Power Co. v City of Fulton, 8 AD2d 523.)

      Lewis R. Bennett, Scott B. Lilly, Vito J. Cassan, John R. Davison and Amelia C. Anzalone for the Power Authority of the State of New York, amicus curiae.

    Courts will decline to reach a Federal constitutional question when a decision based on State law can be substituted. (Minnesota v Northern States Power Co., 447 F2d 1143, 405 US 1035; Maun v United States, 347 F2d 970; Utah v United States, 403 US 9; Chemehuevi Tribe of Indians v FPC, 420 US 395.)

      Peter H. Schiff for the Public Service Commission of the State of New York, amicus curiae.

    The only proper basis for overturning the challenged action of the Village of Buchanan Zoning Board is a determination predicated on State law. (Rice v Santa Fe Elevator Corp., 331 US 218; City of Burbank v Lockheed Air Term., 411 US 624; De Canas v Bica, 424 US 351; Northern States Power Co. v State of Minnesota, 447 F2d 1143; Maun v United States, 347 F2d 970; State of New Hampshire v Atomic Energy Comm., 406 F2d 170.)
   OPINION OF THE COURT

Cooke, J.

Consolidated Edison Company of New York, Inc., operates a nuclear generating plant, known as Indian Point Unit No. 2, in the Village of Buchanan, in Westchester County. The facility’s cooling system, up to now, has been a "once-through” system by which water is taken from the Hudson River to cool the condensers and then returned to the river. This method of cooling uses high quantities of water and, according to concerned citizens and organizations, is extremely destructive of fish and plant life in the river.

An alternative to the once-through cooling system is a "closed-cycle” system which recirculates the water used to cool the condensor, requiring replenishment at times from the river in a limited amount to replace that which is lost by evaporation. This closed-cycle system is considered desirable by the intervenor in this matter, the Hudson River Fishermen’s Association, which, with others, has urged the discontinuance of the present cooling system before a Federal agency, the Atomic Energy Commission (now succeeded by the Nuclear Regulatory Commission) which licenses Indian Point Unit No. 2.

After hearings concerning the cooling system used at Unit No. 2, on May 6, 1974, the AEC amended the plant’s license to read, inter alia, that "the once-through cooling system will be permitted during an interim period, the reasonable termination date for which now appears to be May 1, 1979.” (Recently, and after the commencement of the instant proceeding, this termination date was extended to May 1, 1982.) The amendment also required evaluation of the economic and environmental impacts of an alternative closed-cycle system to be made by Con Edison in order to determine a preferred system for installation. Further, it was contemplated that the termination date might be advanced or postponed depending on whether all governmental approvals were obtained by December 1, 1975.

In accordance with the decision of the Atomic Safety and Licensing Appeal Board and the license as amended, Con Edison had prepared a report which concluded that, in a closed-cycle system, based on economic and environmental data, the preferred means of cooling is a natural draft, wet cooling tower. This would require the construction of a 565-foot tower in the Village of Buchanan. However, when Con Edison applied for a building permit, the application was denied by the village’s building inspector on the grounds that the size of the proposed tower exceeds the 40-foot height limitation in the zoning district, that a visible vapor plume emanating from the tower would extend beyond the boundary of the immediate site in contravention of section 54-22 of the Buchanan Zoning Ordinance, and that a saline draft would be deposited, also in violation of that section. Thereafter, Con Edison sought a variance from Buchanan’s Zoning Board of Appeals.

In a lengthy decision, dated June 19, 1975, the zoning board of appeals, after reviewing the underlying controversy before the Federal Atomic Energy Commission (and now the Nuclear Regulatory Commission) concerning the cooling system used by Indian Point Unit No. 2, denied the application for a variance. Since Con Edison was continuing to study the ecological effect of the once-through cooling system, and was under no present direction by a regulatory agency to begin construction, the board took the view that no practical difficulties requiring a variance had been shown, concluding that the application was "contingent” and "pro forma”. The board also stated that if it were not denying the variances for the reasons stated, it would deny them on the ground that Con Edison had not shown that it was requesting the minimal variance which must be granted to preserve the spirit of the ordinance while protecting the public interest under section 7-712 (subd 2, par [c]) of the Village Law and thus that practical difficulties calling for a variance had not been established. In this respect, the board commented that the application precluded any consideration of alternatives, including any variations of the mechanical systems, which might be only 68 feet high, or any modification of the towers and adaptability of the technology of one system to the other to eliminate objectionable features, and merely called for acceptance of a natural draft system and a 565-foot tower as indispensable consequences of any closed-cycle system.

This article 78 proceeding followed on July 17, 1975, with Con Edison seeking a judgment annulling the decision of the zoning board of appeals and directing it to issue the variance. Special Term, reasoning that pervasive Federal regulation of Con Edison’s facility necessitates a finding of implied preemption, granted the petition to the extent of enjoining the board from enforcing or attempting to enforce the provisions of the Buchanan Zoning Ordinance as against construction of a closed-cycle cooling system at Indian Point Unit No. 2. The Appellate Division not only agreed with Special Term that denial of the variance contravened Federal law, but also concluded that State law was violated (see Public Service Law, § 65, subd 1; Transportation Corporations Law, § 11), and then modified by directing the board to issue the variance for construction of the tower, stating that the respondents may regulate local and incidental conditions relative to the construction of the proposed facility. We granted leave to appeal to this court and affirm on more limited State-law grounds.

At the outset, we note that issues of Federal pre-emption are raised with differing emphases by the original parties, the intervenor, and amici. These issues need not and should not be reached. Con Edison asserts that the decision of the zoning board of appeals was erroneous, arbitrary and capricious. Hence, reducing the case to its simplest terms, the legal issue before this court is whether, based on the evidence presented, the board abused its discretion, as a matter of law, in denying Con Edison’s application for a variance. Since this question is capable of resolution under our own State law, we should not decide broad questions not necessary to the resolution of the present dispute but, rather, approach this case with a narrower focus.

Starting with basics, where there are practical difficulties or unnecessary hardships in the way of carrying out an ordinance, a zoning board of appeals has the power to issue a variance (Village Law, § 7-712, subd 2, par [c]). Depending on the type of variance sought, a distinction in the burden placed on the applicant has developed (see 2 Anderson, New York Zoning Law and Practice [2d ed], § 18.07). To be granted an area variance, the applicant must satisfy the less demanding standard of showing that strict compliance with the zoning law will cause "practical difficulties” (see, e.g., Matter of Wilcox v Zoning Bd. of Appeals of City of Yonkers, 17 NY2d 249, 255; Matter of Village of Bronxville v Francis, 1 AD2d 236, affd 1 NY2d 839). On the other hand, since a prohibited use, if permitted, will result in a use of the land in a manner inconsistent with the basic character of the zone, a heavier burden is placed on the applicant (see Conley v Town of Brookhaven Zoning Bd. of Appeals, 40 NY2d 309, 313-314) and the enabling act has been construed to require a showing of "unnecessary hardship” (see, generally, 2 Anderson, New York Zoning Law and Practice [2d ed], § 18.32). However, even in the case of an area variance, a significant factor is the magnitude of the variance sought, since the greater the deviation the more likely it is that the impact on the community will be severe (see Matter of National Merritt v Weist, 41 NY2d 438, 441).

An "area” variance is one which does not involve a use which is prohibited by the zoning ordinance, while a "use” variance is one which permits the use of land which is proscribed (Matter of Overhill Bldg. Co. v Delany, 28 NY2d 449, 453; 3 Anderson, American Law of Zoning [2d ed], §§ 18.06-18.07). In the instant matter, in addition to an area variance to accommodate the height of the tower, the village asserts that operation of the tower will result in prohibited uses for which variances are necessary. The proscribed uses are that the cooling tower will produce a vapor plume from which, depending on the salt content of the river at any given time, a saline drift may be deposited on the locale and be harmful to some types of trees. Hence, as noted, where a use variance is sought, the applicant must show unnecessary hardship.

To establish unnecessary hardship, the traditional approach has been to require the applicant to show that the land cannot yield a reasonable return if used only for a purpose allowed in the zone, that the circumstances which cause the hardship are unique to the land and not to general neighborhood conditions, and that the requested use will not alter the essential character of the locality (see Matter of Otto v Steinhilber, 282 NY 71, 76). It has been observed, however, that these requirements are not appropriate where a public utility such as Con Edison seeks a variance, since the land may be usable for a purpose consistent with the zoning law, the uniqueness may be the result merely of the peculiar needs of the utility, and some impact on the neighborhood is likely (2 Anderson, American Law of Zoning [2d ed], § 12.31, pp 474-475; see, generally, 3 Rathkopf, Law of Zoning and Planning, ch 72, [3d ed]).

This analysis is borne out by the fact that the courts have placed emphasis on the public necessity when considering a utility’s application for a variance (see Matter of Long Is. Light. Co. v Griffin, 272 App Div 551, esp 553, affd 297 NY 897; see, also, Note, Zoning and the Expanding Public Utility, 13 Syracuse L Rev, 581, 583-584; see, generally, 67 NY Jur, Zoning and Planning Laws, § 191). Local concerns, though important, are not the sole criteria, since utilities such as Con Edison, a gas, electric and steam corporation, are required to "provide such service, instrumentalities and facilities as shall be safe and adequate and in all respects just and reasonable” (Public Service Law, § 65, subd 1). Indeed, consideration of the needs of a broader public are reasonably within the contemplation of the enabling legislation, which authorizes a zoning board to grant a variance "so that the spirit of the local law or ordinance shall be observed, public safety and welfare secured and substantial justice done” (Village Law, § 7-712, subd 2, par [c]). Thus, in resolving the question of hardship, the effect on the utility’s customers is a significant factor to be considered by local zoning boards.

Having reviewed what must be presented to and considered by the local zoning board, the issue is whether the zoning board erred in its decision to deny the variance. Since the zoning board is given discretion in these matters, the court’s function is limited, and a board determination may not be set aside in the absence of illegality, arbitrariness or abuse of discretion (Matter of Cowan v Kern, 41 NY2d 591, 598; Conley v Town of Brookhaven Zoning Bd. of Appeals, 40 NY2d 309, 314, supra). The board’s determination will be sustained if it has a rational basis and is supported by substantial evidence (id.; see, also, Matter of National Merritt v Weist, 41 NY2d 438, 443, supra). Even where a utility is involved, the courts function under the same limited standard of review (see Matter of Long Is. Light. Co. v Griffin, 272 App Div 551, affd 297 NY 897, supra; cf. Matter of Long Is. Light. Co. v City of Long Beach, 280 App Div 823).

At the hearing before the Buchanan Zoning Board of Appeals, Con Edison expressed its concern that, if the Nuclear Regulatory Commission adhered to its requirement that Indian Point Unit No. 2 terminate operation of a once-through cooling system and the village stuck to its position of not allowing construction of the cooling tower, the utility could be faced with the necessity of shutting down Unit No. 2, which has a capital cost in excess of $204,000,000. The board was presented with testimony that the operation of the plant saved Con Edison customers $78,000,000 in fuel expense in 1974, and that if the facility were closed down additional fuel costs to make up the lack of generation by increasing production at its other plants, all of which burn imported oil, would translate to $567,000 per day. In terms of oil use, in 1974 alone, the operation of Indian Point Unit No. 2 saved approximately 7,300,000 barrels of oil or equivalently 306,600,000 gallons.

In view of the potential hardship to Con Edison’s approximately three million customers, and millions of others affected, not to mention the harm to the utility’s huge investment and the taxes paid, the board’s decision to treat the application as contingent or pro forma was unwarranted. Although the license amendment from the agency which regulates the plant contemplated that the termination date might be changed, a reading of the relevant documents and decisions manifests that the right to operate would be terminated upon failure to convert to a closed-cycle system. Since it was estimated that excavation and construction might take years, there was no justification for delaying commencement of the project. Moreover, the board recognized that Con Edison itself had objected to the increased expense resulting from a contemplated $84,000,000 construction cost and a $35,000,000 annual operating budget, and thus there was no need to fear that Con Edison would begin the project prematurely or before it was absolutely necessary. Considering the enormous social and economic significance of this application for a variance and the tremendous ensuing loss if the plant ultimately were forced to close down, it is difficult to imagine a more arbitrary and capricious manner of resolving the dispute. Based on the evidence presented of hardship to Con Edison and its customers, there is more than an ample basis for concluding that the Buchanan Zoning Board of Appeals abused its discretion in denying the variance sought.

Comment should also be made concerning the zoning board’s suggestion that the application was defective because it did not present alternatives to a natural draft, wet cooling tower. Con Edison was directed to evaluate the economic and environmental impacts of a closed-cycle system in order to determine a preferred system for installation. Based on its studies, the utility concluded that mechanical draft wet towers were unacceptable environmentally because that type of system would double the fog and icing conditions prevalent in the area, and would violate the noise prohibitions of the Buchanan code. Alternatively, mechanical draft wet/dry towers were also considered more harmful to the environment than the natural draft, wet cooling tower for which a variance was sought.

While ordinarily a village may properly decide for itself which of several evils it should bear, this is not such an instance. The zoning board had the opportunity to present its position before the regulatory agency which directed the evaluation by Con Edison. It thus had an appropriate forum to voice its environmental concerns and should not have used the local proceedings to express its dissatisfaction. There is no indication of any lack of good faith by Con Edison in its conclusion as to the most acceptable system from an environmental standpoint. Indeed, considering that the area is zoned for industrial use and that other industrial facilities are located nearby, concern over the environmental effect of a vapor plume from the proposed tower appears greatly exaggerated.

As for aesthetics, the zoning board also expressed concern that the 565-foot tower would be an eyesore. The zone, however, includes the two domed containment buildings of Indian Point Units Nos. 2 and 3, which are 219-feet high, and a stack for the Unit No. 1 superheater building which is 375-feet high. Although these structures are pre-existing uses, construction of which was commenced prior to adoption of the present zoning code, since these facilities also greatly exceed the height limitations, the specter of the tower is substantially dissipated.

In conclusion, it has long been held that a zoning board may not exclude a utility from a community where the utility has shown a need for its facilities (see Matter of Long Is. Light. Co. v Griffin, 272 App Div 551, supra; Matter of Long Is. Water Corp. v Michaelis, 28 AD2d 887). However, this has never meant that a utility may place a facility wherever it chooses within the community (see Matter of Niagara Mohawk Power Corp. v City of Fulton, 8 AD2d 523; Matter of Long Is. Light. Co. v Incorporated Vil. of East Rockaway, 279 App Div 926; see, also, Public Service Law, art 8, § 140 et seq.).

The question here is not one of siting a plant, but simply the need to modify the existing facility (see Matter of Long Is. Light. Co. v City of Long Beach, 280 App Div 823, supra; Northport Water Works Co. v Carll, 133 NYS2d 859). To be granted such a use variance, the utility should be required to show that denial of the variance would cause unnecessary hardship, but not in the sense required of other applicants (see Matter of Otto v Steinhilber, 282 NY 71, 76, supra). Instead, the utility must show that modification is a public necessity in that it is required to render safe and adequate service, and that there are compelling reasons, economic or otherwise, which make it more feasible to modify the plant than to use alternative sources of power such as may be provided by other facilities. However, where the intrusion or burden on the community is minimal, the showing required by the utility should be correspondingly reduced (cf. Matter of Long Is. Light. Co. v Griffin, 272 App Div 551, esp 554, affd 297 NY 897, supra; Matter of Long Is. Light. Co. v City of Long Beach, 280 App Div 823, supra). In this matter, Con Edison has made a striking and more than ample demonstration of hardship and need, the reasons for denying its application were arbitrary and capricious, and hence the zoning board’s decision to prohibit the variance was an abuse of discretion.

Accordingly, for the reasons stated, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur.

Order affirmed.

      . In the zone where Con Edison’s facility is located there is a prohibition against: "Dissemination of noise, vibration, odor, dust, smoke, observable gas or fumes, or other atmospheric pollutants beyond the boundaries of the immediate site of the building in which such use is conducted” (Code of Village of Buchanan, § 54-22, subd A [1]).
      In addition, the ordinance prohibits any use which will cause or result in "[h]azard of fire or explosion or other physical hazard to any person, building or vegetation” (subd A [2]), or "[a] harmful discharge of waste materials” (subd A [4]).

      . Subsequently, the facility’s license was again amended and is now consistent with Con Edison’s study. The license, as amended, reads: "The Nuclear Regulatory Commission has determined * * * that a closed-cycle natural draft, wet cooling tower system is the preferred alternative closed-cycle cooling system for installation at Indian Point Unit No. 2.”


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Richard J. Bookhout et al., Respondents, v Arthur Levitt, as Comptroller of the State of New York and Administrative Head of the New York State Employees’ Retirement System, Appellant.
    Argued January 9, 1978;
    decided February 16, 1978

      POINTS OF COUNSEL

      Louis J. Lefkowitz, Attorney-General (Winifred C. Stanley and Ruth Kessler Toch of counsel), for appellant.
    The Comptroller, in computing petitioners’ retirement allowances, properly excluded additional service credit for accumulated unused sick leave (provided by Otsego County), upon the ground that petitioners were elected officials, not limited as to amount of sick leave time taken nor required to obtain prior approval therefor. Pursuant to the Comptroller’s established administrative practice, additional service credit for accumulated, unused sick leave has consistently been excluded, in computing the retirement allowances of elected officials. (Kranker v Levitt, 30 NY2d 574; Matter of Weber v Levitt, 41 AD2d 452, 34 NY2d 797.)

      Robert E. Biggerstaff and Earl H. Gallup, Jr., for respondents.
    Section 33 and subdivision j of section 41 of the Retirement and Social Security Law, in conjunction with Otsego County Board Resolution No. 104, provide petitioners with an explicit entitlement to additional service credit for accumulated unused sick leave. Denial of this benefit by the Comptroller is therefore a violation of an express statutory right. (Kranker v Levitt, 30 NY2d 574.)
   OPINION OF THE COURT

Cooke, J.

At stake here is the right of petitioners, retired elected public officials of Otsego County who headed their divers offices, to receive additional service credit for accumulated unused sick leave at the time of retirement included in the calculation of their respective retirement allowances.

Petitioner Bookhout served as Surrogate from 1958 until his retirement on December 31, 1974; petitioner Jones, as County Treasurer from 1951 until retirement on December 31, 1974; petitioner Loomis, as County Judge and Family Court Judge from 1952 until retirement on November 1, 1970; and petitioner Atwell, as County Clerk from 1941 until retirement on December 31, 1974. Upon retirement, each became entitled to pension benefits payable by the New York State Employees’ Retirement System. Upon notification that their respective pensions would be computed to the exclusion of unused sick leave and sums paid for unused vacation time, petitioners, pursuant to section 74 of the Retirement and Social Security Law, demanded hearings and redeterminations of their respective retirement allowances. Following a consolidated hearing, a final determination, including findings of fact and conclusions of law, was made on behalf of the Comptroller denying petitioners’ applications for recomputation. This article 78 proceeding was then instituted for recomputations of petitioners’ retirement allowances, applied retroactively from their respective dates of retirement and so as to credit each petitioner with earned and unused sick leave and with lump-sum payments for unused vacation time. On reaching the Appellate Division, that court modified the Comptroller’s determination to the extent of annulling that portion denying to petitioners additional service credit for accumulated unused sick leave at the time of retirement. It was held, however, that petitioners were not entitled to retirement credit for lump-sum payments for accumulated unused vacation time. The only appeal taken from the Appellate Division judgment was by the Comptroller from that part thereof which modified his determination in respect to sick leave credit and, since petitioners have taken no appeal and seek affirmance, the issue in respect to credit for payments for vacation time is not before this court.

Factors employed in calculating retirement allowances include final average salary and length of service (see Retirement and Social Security Law, § 75-g), the issue here being centered on the service credit component of the mathematical process. Petitioners rely on section 33 and subdivision j of section 41 of the Retirement and Social Security Law. Section 33, as originally added by chapter 467 of the Laws of 1970 and as amended by chapters 382 and 1046 of the Laws of 1973, provides, inter alia, that, upon proper adoption, filing and approval, where required, of a resolution, a participating employer may elect to provide for its own employees the benefit provided for persons in the employ of the State listed in subdivision j of section 41. In turn, said subdivision j, as added by chapter 457 of the Laws of 1970 and which became effective on May 5, 1970, provided:

"j. Allowance for unused sick leave for members in the employ of the state.

"1. In addition to any other service credit to which he is entitled, a member who meets the requirements set forth in paragraphs two and three of this subdivision shall be granted one day of additional service credit for each day of accumulated unused sick leave which he has at time of retirement for service, but such credit shall not (a) exceed one hundred sixty-five days, (b) be considered in meeting any service or age requirements prescribed in this chapter, and (c) be considered in computing final average salary.

"2. Such service retirement credit shall be granted only to members in the employ of the state who, prior to retirement, were subject to a plan established by law, rule, regulation, written order or written policy which provided for the regular earning and accumulation of sick leave.

"3. The provisions of this subdivision shall apply to members retiring from service of the state on or after April first, nineteen hundred seventy and prior to April first, nineteen hundred seventy-two” (emphasis added).

By virtue of two amendments made in 1973 (L 1973, ch 382, § 20, eff May 31, 1973, and L 1973, ch 1046, § 3, eff July 31, 1973), paragraph 3 of subdivision j was changed to read: "3. In the case of persons who last became members on or after July first, nineteen hundred seventy-three, the provisions of this subdivision shall apply only to those retiring from service prior to July first, nineteen hundred seventy-four.”

It is undisputed that on July 1, 1970 the Board of Representatives of Otsego County, the local legislative body of that municipal corporation (see General Municipal Law, § 119-n), adopted a resolution by which it elected "to provide the benefits of Section 41, subdivision-j of the Retirement and Social Security Law as presently or hereafter amended, granting allowance for unused sick leave for eligible employees”. Thus, since petitioner Loomis retired on November 1, 1970, he was a member who met the requirement of paragraph "3”, as in force at that time. However, as to petitioners Bookhout, Jones and Atwell who retired on December 1, 1974, they did not qualify under the condition of the paragraph, either as originally enacted or as subsequently amended.

The first and third paragraphs of the subdivision must be read together not only because their terms so dictate but so as to conform to the elementary canon of statutory construction that all parts of a statute be read and construed together to determine the legislative intent (Gaden v Gaden, 29 NY2d 80, 86; McKinney’s Cons Laws of NY, Book 1, Statutes, § 97). That intent, to make paragraph "3” clearly applicable to retirees whose participating employer had elected to provide its employees with the benefit enjoyed by State employees under subdivision j of section 41, is also evident from the second 1973 amendment (L 1973, ch 1046, § 3, eff July 31, 1973) which deleted the words "of the state” following the words "retiring from service”, as the paragraph read after an earlier amendment (L 1973, ch 382, § 20, eff May 31, 1973). It is also significant as evincing a general plan that the predicate period for retirement under paragraph 3, authorizing the grant to a member of additional service credit for accumulated unused sick leave, as originally enacted, was from on or after April 1, 1970 and prior to April 1, 1972 (L 1970, ch 457), the latter date of April 1, 1972 being the cutoff point for the inclusion in the salary base for the computation of retirement benefits of lump-sum payments for sick leave, under section 431 of the Retirement and Social Security Law.

Although section 431 prohibits the inclusion in the salary base for computation of retirement benefits of lump-sum payments earned or received on or after April 1, 1972 for items such as sick leave and accumulated unused vacation credits, the latter being the subject of this court’s determination in Kranker v Levitt (30 NY2d 574), no solace would be acquired by petitioners in employing reasoning analogous to that enunciated in Kranker. This is so because of the undisputed proof here that the retirement system has followed a consistent policy of disallowing the accumulated unused sick leave of all elected officials in the calculation of their retirement benefits. Hence, there is no administrative practice which might be found to have given rise here to a vested or contractual right to additional service credits for such unused sick leave (see, also, Matter of Weber v Levitt, 34 NY2d 797, 800).

The offices of County Judge, Surrogate, Judge of the Family Court, County Clerk and County Treasurer are elective (County Law, § 400, subd 1). The incumbent of each of these offices continues to hold office until events such as his or her death, resignation, removal from office and for various other reasons (see Public Officers Law, §30, subd 1; see, also, §§ 2, 3). Each of the petitioners, as an officer of a municipality whose salary is fixed by law, is entitled to that salary, not as under a contract of employment, but as an incident of the respective office, and cannot be deprived of that salary so long as he or she rightfully holds that office (see Fitzsimmons v City of Brooklyn, 102 NY 536, 538-539; Grieb v City of Syracuse, 94 App Div 133, 136; 12 Opns St Comp, 1956, p 326; 11 Opns St Comp, 1955, p 413; 8 Opns St Comp, 1952, p 132). So long as each of them continued in office, he or she could not be deprived of the compensation attached thereto even if prevented by temporary incapacity, such as sickness, from performing the duties of the office (see O’Leary v Board of Educ., 93 NY 1, 6; 2A Antieau, Municipal Corporation Law, § 22.106, p 22-171; cf. Matter of Croker v Sturgis, 175 NY 158, 163-164). Of course, sickness involving a serious physical or mental defect resulting in actual disability to perform the duties of an office may furnish cause for removal (see People ex rel. Cline v Robb, 126 NY 180, 186; O’Leary v Board of Educ., supra; People ex rel. Haverty v Barker, 1 App Div 532, 538, affd 149 NY 607; see, also, NY Const, art VI, § 22, subd a; 48 NY Jur, Public Officers and Employees, § 250, pp 130-131).

Despite the inappositeness of subdivision j of section 41 of the Retirement and Social Security Law to three of the petitioners, more basically in reference to all of them, the subject of unused sick leave is inimical and not relevant to elected holders of public office such as petitioners who are heads of their own departments or offices and who are permitted within broad limits to determine their own hours of work (see Callahan v Town of Athol, 345 Mass 572, 575). They were elected to perform certain exclusive powers and duties required of a County Judge and Judge of the Family Court, Surrogate, County Clerk and County Treasurer for which they received specific compensation (see 48 NY Jur, Public Officers and Employees, § 92, p 18; 63 Am Jur 2d, Public Officers and Employees, § 265, p 784). The mode of exercise of those powers and duties, if authorized and valid, and the time devoted to them, in the absence of such gross neglect as to warrant removal from office, were matters left separately to each of them (cf. Callahan v Town of Athol, 345 Mass 572, 575, supra; see Matter of Croker v Sturgis, 175 NY 158, 160-161, supra; Matter of Pisciotta v Dendievel, 41 AD2d 949, 950; Matter of Baker v Baker, 87 Misc 2d 592, 593; see, also, NY Const, art VI, § 22, subd a; art XIII, § 13; Public Officers Law, § 33). Sick leave is a term and condition of employment (see Civil Service Law, § 204; see, e.g., Syracuse Teachers Assn, v Board of Educ., 42 AD2d 73, 76, affd 35 NY2d 743) which is not an attribute of or applicable to public offices held by elected officials. The very nature of petitioners’ offices contemplates that the occupants generally were free to take as much or as little time off as they might wish under a schedule they controlled (see 24 Opns St Comp, 1968, pp 88, 450; 17 Opns St Comp, 1961, pp 16, 148). Since there was no maximum time allowable for their sick leaves, or more correctly for their absences because of sickness, an instance would not have arisen requiring reimbursement by them for an excess of sick leave taken and, by the same token, credit should not be granted for any claimed unused sick leave. In short, there was no base from which unused sick leave could be measured and petitioners are not entitled to service credit for accumulated unused sick leave in the determination of the retirement allowance.

Accordingly, the judgment should be reversed, with costs, and the determination of the Comptroller reinstated.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur.

Judgment reversed, etc.

      . The Family Court of the State of New York was established by section 13 of article VI of the State Constitution. Under section 35 of said article, Children’s Courts were abolished and the Judges of the Children’s Courts in all counties outside the City of New York in office on the effective date of article VI continued for the remainder of their terms as Judges of the Family Court in and for the county in which they held office. Article VI became effective on September 1, 1962.
      In Otsego County, the Judge of the County Court acts and discharges the duties of Judge of the Family Court (Family Ct Act, § 131, subd [b]). Prior to September 1, 1962, petitioner Loomis served as County Judge and Judge of the Children’s Court of Otsego County (NY Legis Manual, 1961-1962, pp 885-888).

      . The notifcation to petitioner Loomis merely related to unused sick leave accruals, as he had been credited merely with accumulated unused sick leave and not with lump-sum payments for unused vacation time.


author: Jasen, J.

text:
    Corinne E. Glass et al., Respondents, v Giuseppe Battista, Also Known as Joseph Battista, et al., Appellants, et al., Defendants.
    Argued January 9, 1978;
    decided February 16, 1978

      POINTS OF COUNSEL

      Leonard A. Weiss, David Avstreih and Steven L. Kroleski

    for Giuseppe Battista, appellant.
    I. The 1966 instrument does not create a binding contractual obligation upon the survivor to dispose of his or her property in a specified manner after death. (Edson v Parsons, 155 NY 555; Wallace v Wallace, 216 NY 28; Matter of Zeh, 24 AD2d 983; Matter of Rosenblath, 146 Misc 424; Tutunjian v Vetzigian, 299 NY 315; Matter of Silverman, 43 Misc 2d 909; Matter of Tatkow, 80 Misc 2d 389; Matter of Aquilino, 53 Misc 2d 811; Oursler v Armstrong, 10 NY2d 385; Rubenstein v Mueller, 19 NY2d 228.) II. Plaintiffs-respondents failed on the trial level to prove that the 1966 instrument was duly executed by Michael in accordance with the applicable law as is required in the probating of any will. (Delafield v Parish, 25 NY 9; Matter of Eno, 196 App Div 131.) III. The trial court properly excluded the testimony of the draftsman of the 1966 instrument concerning the direct oral declarations of the testator’s intent. (Matter of Frederick, 41 Misc 2d 759, 22 AD2d 760; Matter of Smith, 254 NY 283; Matter of Constantine, 36 Misc 2d 711; Baumann v Steingester, 213 NY 328; Matter of Coughlin, 171 App Div 662, 220 NY 681; Matter of Jolson, 202 Misc 907; Matter of Hertzig, 177 Misc 598; Brown v Quintará, 177 NY 75.) IV. The court below erred in disregarding the third paragraph of the 1966 instrument, which clearly bequested the entire estate to the survivor, without exception or limitation.

      Harvey Felton and Joseph R. Zibelli for Joseph Battista and another as executors, appellants.
    The plaintiffs have failed toprove that the alleged joint will was executed by Michael De Filippo in the manner required by law. II. The trial court rightfully found that the alleged joint will does not constitute a binding and irrevocable contract between Michael and Rose De Filippo which restricts the disposition of property by the survivor. (Schweizer v Schweizer, 16 Misc 2d 592, 8 AD2d 946; Matter of Tatkow, 80 Misc 2d 389; Tutunjian v Vetzigian, 299 NY 315; Rich vMottek, 11 NY2d 90; Rastetter vHoenninger, 214 NY 66; Hermann v Ludwig, 229 NY 544; Matter of Elwyn, 285 App Div 91; Elwyn v Comeau, 8 Misc 2d 704; Rubenstein v Mueller, 47 Misc 2d 830,19 NY2d 228; Matter of Zeh, 24 AD2d 983,18 NY2d 900.) III. The trial court was correct in excluding the testimony of the draftsman of the will offered to establish the testator’s intent. (Matter of Frederick, 41 Misc 2d 759, 22 AD2d 760; Matter of Constantine, 36 Misc 2d 711; Matter of Morrison, 270 App Div 318; Matter of Coughlin, 171 App Div 662, 220 NY 681; Matter of Jolson, 202 Misc 907; Matter of Hertzig, 177 Misc 598; Brown v Quintard, 177 NY 75; Matter of Nelson, 268 NY 255.) IV. Even if the testimony of the draftsman was admissible, the court below erred in not remanding the case to the trial court to receive the testimony of the draftsman and enable defendants to cross-examine him as to such testimony.

      Sidney B. Silverman and Martin H Olesh for respondents.
    I. The joint will clearly and unambiguously embodied a contractual obligation imposing upon Michael the duty to dispose of his property at death to his daughters. (Tutunjian v Vetzigian, 299 NY 315; Hermann v Ludwig, 186 App Div 287, 229 NY 544; Morgan v Sanborn, 225 NY 454; Rubenstein v Mueller, 19 NY2d 228; Matter of Zeh, 24 AD2d 983, 18 NY2d 900; Mitchell v Van Allen, 75 App Div 297; Campbell v Beaumont, 91 NY 465; Matter of Ithaca Trust Co., 220 NY 437; Farmers’ Loan & Trust Co. v Kip, 192 NY 266.) II. The false issues raised by defendants are patently without merit. (Matter of Kindberg, 207 NY 220; Matter of Flasza, 57 Misc 2d 347;
      Matter of Wade, 296 NY 244; Crouse v McVickar, 207 NY 213; A. A. Sutain, Ltd. v Montgomery Ward & Co., 22 AD2d 607, 17 NY2d 776; Jones v Jones, 137 NY 610; Matter of Langdon, 173 App Div 737; United States v Guanti, 421 F2d 792; Sherbicki v United States, 400 US 832.)
   OPINION OF THE COURT

Jasen, J.

On this appeal we are asked to determine whether the joint will of a husband and wife embodies an agreement by each of the testators to dispose of their respective estates in the manner specified in such will.

On March 18, 1966, Michael and Rose De Filippo, husband and wife, executed a joint reciprocal will which provided in part:

"THIRD: We give to the survivor of us all our property, both real and personal, wherever situated, whether owned by us jointly or severally.

"FOURTH: In the event we die simultaneously or under such circumstances that the evidence is not sufficient to determine the question of survivorship between us, or if either of us predeceases the other, then we jointly, mutually and individually give, devise and bequeath all of the rest, residue and remainder of our property, both real and personal and wheresoever situated, or to which we or either of us may be entitled at the time of our death, to our beloved children, CIARINO DeFILIPPO and TILLIE DeFILIPPO, who shall survive us, share and share alike, per stirpes and not per capita.”

Rose died on August 18, 1967, whereupon the 1966 instrument was admitted to probate. Pursuant to the terms of that will, Michael received Rose’s entire net estate.

On October 29, 1973, Michael opened two accounts at Chemical Bank, one in trust for his daughter Corinne (Ciarino) and the other in trust for his daughter Attilia (Tillie). In March, 1974, Michael removed Corinne and Attilia as beneficiaries, and left one of the accounts without a named beneficiary, while naming a friend, Giuseppe Battista, beneficiary of the other trust account.

After remarrying, Michael executed a second will on May 16, 1974, which upon his death was admitted to probate. This will included a clause expressly disinheriting his daughters "for reasons well known to them”, and provided that his estate be used principally to enlarge and refurbish a mausoleum located in Naples, Italy. The balance of the estate was to be divided among three nephews living in Italy.

It is established in this State that two persons may validly agree to dispose of their estates in a particular manner, and that such an agreement may find expression in a joint or mutual will. (Schwartz v Horn, 31 NY2d 275, 279; Rastetter v Hoenninger, 214 NY 66, 71-72.) Similarly beyond dispute is the principle that once a party to such a will has accepted the benefits granted him under that instrument, he, too, must adhere to its terms, for equity would be ill-served if, after one party had honored the agreement, the other party, having reaped its fruit, were at liberty to uproot it. (Morgan v Sanborn, 225 NY 454, 462; Hermann v Ludwig, 186 App Div 287, 297, affd 229 NY 544.)

While the applicable principles are clear and settled, there is still the question remaining as to whether the joint will embodies an agreement by each of the testators to dispose of their respective estates in the manner specified in such will. Many times we have noted that "The law does not view the renunciation of the right to alter or revoke a will as a casual matter” (Oursler v Armstrong, 10 NY2d 385, 389; Rubin v Irving Trust Co., 305 NY 288, 302), and in keeping with this principle we have declined to find joint or mutual wills contractually binding where such intent was left to conjecture. Thus, where a husband and wife executed mutual wills, rather than joint wills, which lacked contractual language, no contract was found. (10 NY2d 385, supra.) The same result was reached where the terms of a joint reciprocal will between a husband and wife devised all their property to the survivor "absolutely”, since an absolute grant is inimical to the divestiture of testamentary power. (Matter of Zeh, 24 AD2d 983, affd 18 NY2d 900.) By contrast, where extrinsic evidence revealed that the parties to a joint reciprocal will intended that it be a binding contract, we have given their intent effect. (Matter of Wiggins, 39 NY2d 791; Rubenstein v Mueller, 19 NY2d 228.)

In Tutunjian v Vetzigian (299 NY 315, 320), presented with a nearly identical issue, we stated: "While the mere execution of a joint reciprocal will may not suffice to establish such a contract [citations omitted], the language used by the testators in this case supplies evidence of such an underlying obligation. Thus, it is 'We’, not T * * *’ who make and publish 'this’ to be 'our’, not 'my’, last will and testament”. Such language "imports the joint disposition of the collective property of both, not the independent disposition by each of his own.” (Rastetter v Hoenninger, 214 NY, at p 72, supra.) The continued viability of this position was confirmed in Rich v Mottek (11 NY2d 90). In that case, confronting the same question posed today, we declared that "the terms of the will impose a clear obligation on the part of husband and wife to provide, at death, first for each other and then for their children.” (Rich v Mottek, 11 NY2d, at p 94, supra.)

The same factors which impelled this court in Rich v Mottek (11 NY2d 90, supra) to find a contract are present here. The joint reciprocal will was executed by a husband and wife, naming their children ultimate beneficiaries. A natural inference flows from the relationships of the parties that the joint will was intended to be obligatory. Furthermore, the use of plural pronouns in the joint will suggests that the testators’ dispositions were interdependent. These factors, taken together, reflect and establish an agreement between the testators to dispose of their respective estates in the manner specified in the jofiit will. Since the husband breached the agreement by executing a will other than that agreed upon, the Appellate Division properly compelled the husband’s executors to fulfill the agreed upon testamentary disposition.

In the view thus taken, it is unnecessary to consider the propriety of the Trial Judge’s ruling which excluded the testimony of the draftsman of the will offered by the children with respect to the intent of the testators at the time of the execution of the joint will. Although we find that a contract exists in this case, we hasten to add that using .other less ambiguous methods of executing a contract will obviate the need for surmise as to the parties’ intent. An express contract, apart from the joint will, or clear and unambiguous contractual language incorporated into the joint will would dispel all confusion, and ensure achievement of the desired result.

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

Chief Judge Breitel and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order affirmed.


author: Wachtler, J. Cooke, J. (dissenting).

text:
    Michael Miller et al., Respondents, v Valley Forge Village, Appellant.
    Argued January 11, 1978;
    decided February 16, 1978

      POINTS OF COUNSEL

      Leonard Halpern and Bernard Meyerson for appellant.
    I. The greater majority of the tenants in defendants’ mobile park have a constitutional right to have the rules enforced as they contracted before the passage of section 233 of the Real Property Law. II. The court erred when it struck out the regulation regarding air conditioners. (People v Arkow, 204 Misc 635.) III. The court erred when it held that the prohibition of the rules and regulations to display a "For Sale” sign unduly restricts the tenants’ statutory right to sell a mobile home. (Barrick Realty v City of Gary, Ind., 491 F2d 161; Whitton Automotive Parts Co. v Yale Elec. Corp., 136 Misc 831, 231 App Div 836.)

      Richard Borda for respondents.
    Rules and regulations 4 and 14 are in conflict with section 233 of the Real Property Law and are arbitrary, capricious and illegal. (Simco Retail Stores of N. Y. v Gross Constr. Co., 273 App Div 825.)
   OPINION OF THE COURT

Wachtler, J.

In this declaratory judgment action against the owner of a mobile home park, a small group of individuals who rent space from the defendant challenge park rules banning “For Sale” signs and restricting air-conditioner installations. Although all of the park’s tenants consented to these regulations before taking occupancy, the plaintiffs contend that two rules in particular undermine broad protections guaranteed by section 233 of the Real Property Law and are therefore unenforceable.

In the plaintiffs’ view, because section 233 (subd f, par 3, cl [e]) specifically prohibits management from denying any park tenant the right to sell his mobile home within the park during the lease period, it must be assumed that the right to use any common auxiliaries reasonably necessary to market a mobile home is also guaranteed. And because park owners may not restrict the installation, service or maintenance of appliances by the terms of section 233 (subd f, par 3, cl [b]), the plaintiffs also urge annulment of the park rule predicating a tenant’s right to install a window air conditioner on the prior approval of management and written consent of next-door neighbors.

The lower courts adopted this position, but only by reading absolute substantive rights into a narrow regulatory statute. Aside from any violence to the statute, the grant of relief to the plaintiffs carried an unaccounted for loss to the majority of other tenants.

To be sure, the growth of mobile home parks and the enactment of section 233 are recent as well as unique phenomena. Mobile home owners are not apartment or condominium dwellers; nor are they campers. They have different needs and distinct concerns. Whatever the economic and qualitative benefits of year-round mobile home living, the fact remains that, nomenclature notwithstanding, the homes themselves are relatively immobile. Once "planted” and "plugged in”, they are not easily relocated. Yet they lack the protective enclosure of apartment buildings. As a result, owners and operators of mobile home parks are in a unique position to take advantage of a more or less captive audience.

When this economic leverage led to visible patterns of commercial abuse, the Legislature responded by adding section 233 to the Real Property Law (L 1974, ch 973, as amd by L 1977, ch 131, § 1). Viewed in its entirety, the statute imposes a commonsense rule of thumb: Inherent economic imbalance may not be exploited by park owners either through unfair monopolistic practices or by threat of eviction for failure to comply with burdensome park rules. While park owners are encouraged to "promulgate rules and regulations governing the rental or occupancy of a mobile home lot”, any rule that can be shown to be "unreasonable, arbitrary or capricious” in purpose or practice will be unenforceable (Real Property Law, § 233, subd f). In other words, management should not be able to bilk tenants.

Evidence of overreaching under the cloak of park rules and regulations is singularly absent from the record in this case. The trial court found that the rules were not only adopted by and uniformly applied to all tenants, but for the vast majority were actually an inducement to rent space from the defendant. This consensus was apparently sustained over the years, for a petition signed by some 160 tenants and introduced at trial supported the park rules and asked that they be retained in the interest of preserving a safe, quiet and attractive place to live.

It is not seriously disputed that the contested park rules tend to advance this primary interest. The rule requiring management and neighbor approval for window air-conditioner installations, rather than diluting an ill-defined property right of mobile home park tenants, instead seeks to encourage a more fundamental interest—the expectation of common courtesy as well as reasonable toleration from one’s neighbors. Although no request to install a window unit has yet to be denied to any of the defendant’s tenants, any future denial would at most restrict only the level of noise pollution and resultant disturbance.

The plaintiffs concede this much, but base their objections on an isolated clause in the statute forbidding park owners from "restricting] the installation * * * of any [electric or gas] appliance” (Real Property Law, § 233, subd f, par 3, cl [b]). When read in context, however, a more likely abuse emerges as the actual target. The provision is in fact directed against efforts to foster park monopolies such as laundry facilities by obstructing outside servicemen hired by a tenant to install a competitive appliance. When outsiders perform the work, owners are also precluded under this provision from imposing penalties in the form of mandatory "installation fees”.

Indeed, the statute specifically authorizes park owners to "determine by rule or regulation the style and quality of [exterior] equipment” (cl [a]). Because the noise restriction rule for outside air conditioners clearly operates to the mutual welfare of all tenants rather than the economic advantage of the defendant, its reasonableness should be self-evident.

Similarly, by prohibiting any form of commercial enterprise and any posting of "For Sale” signs within the park by tenants and management alike, the defendant has sought to advance the tenants’ interests, not to strip them of any statutory right. As explained to prospective tenants and discussed at trial, the ban was adopted to deprive outsiders of a ready-made excuse for "just wandering through the park [ostensibly] to find out what is going on, and what is for sale.” To the extent that the absence of individually posted "For Sale” signs deters strangers from browsing indiscriminately or perhaps "casing out” the park, a measure of safety as well as privacy is achieved. Particularly in an isolated community made up in large part of elderly tenants, this safeguard can hardly be called unreasonable. And if banning "For Sale” signs in practice does no more than avoid the unsavory image of a departing huddle of disgruntled tenants or displaced transients, the rule is no less supportable.

The plaintiffs claim that the ban nonetheless impairs an absolute right now guaranteed by the mobile home statute: "No mobile home park owner or operator shall deny any * * * tenant the right to sell his mobile home [or] * * * exact a commission1 or fee” without actually having acted as the tenant’s agent (Real Property Law, § 233, subd f, par 3, cl [e]). Yet the plaintiffs do not even suggest that management has in fact frustrated a single tenant’s efforts to sell or a single prospective purchaser’s ability to buy a mobile home within the signless park. And because the record suggests no unlawful fee practices or untoward pressure to sell through park channels rather than outside agents or advertisements, we find no violation of section 233, either in letter or spirit.

The right to sell a mobile home cannot be assumed to include an incidental right to use any and all methods common to sales of residential property (compare Linmark Assoc, v Willingboro, 431 US 85), for a mobile home park is not ordinary residential property; nor can its owner or management be equated with a municipality. We therefore find no basis for redrafting a private agreement voluntarily entered by the plaintiffs and affirmatively supported by a majority of the park’s tenants.

Accordingly, the order of the Appellate Division should be reversed and rules 4 and 14 of the Rules and Regulations of Valley Forge Mobile Home Park declared enforceable.

Cooke, J. (dissenting).

In response to overwhelming evidence of abuses by mobile home park owners and operators (see NY Legis Ann, 1974, p 215), the Legislature enacted section 233 of the Real Property Law (L 1974, ch 973, as amd by L 1977, ch 131, § 1), which provides that arbitrary, capricious or unreasonable rules and regulations foisted upon mobile home park tenants with little bargaining power shall be unenforceable (Real Property Law, § 233, subd f, pars 1, 3). In this action to declare certain rules and regulations promulgated by defendant, a mobile home park owner, arbitrary and unenforceable and to enjoin the enforcement of such rules, both Special Term and the majority of the Appellate Division determined defendant’s rule 4 (prohibiting posting of "For Sale” signs) and rule 14 (relating to installation of air conditioners) to be invalid. There should be an affirmance; both rules are arbitrary and unreasonable and, therefore, by operation of law, unenforceable.

Defendant Valley Forge Village is the owner of a mobile home trailer park in Bohemia in Suffolk County—a county in which there is a zero percent vacancy rate for mobile home sites. As a condition precedent to leasing space to a tenant in its park, defendant requires its tenants to sign and agree to abide by a list of rules and regulations, two of which are in issue in this appeal.

Rule 14 of the Rules and Regulations of Valley Forge Mobile Home Park provides: "Window air conditioners must be approved by Management. Because of the noise factor, a written note of approval from your neighbor on the side the unit is to be installed must be on file with the Management before the unit can be installed into the mobile home.” There is no such restriction in the statute. Section 233 (subd f, par 3, cl [b]) of the Real Property Law provides in pertinent part: "No mobile home park owner or operator shall * * * restrict the installation, service or maintenance of any [electric or gas] appliance * * * so long as such an installation or improvement is in compliance with applicable building codes and other provisions of law” (emphasis added).. The intent of the Legislature here is clear. Neither legislative history nor the statutory language implies, as the majority suggests, that this provision was enacted to deter monopolistic practices by park owners in prohibiting park tenants from installing laundry appliances. Indeed, the plain language of the statute, by employing the words "any appliance”, demands a more expansive interpretation (see McKinney’s Cons Laws of NY, Book 1, Statutes, §§ 91, 94-96). Thus, whereas the Real Property Law gives a mobile home park tenant an absolute right, subject to local building codes, to install an air conditioner, rule 14 purports to restrict this right, subjecting it to the approval of management and the written consent of the" tenant’s neighbor.

Rule 14, then, is arbitrary and unreasonable inasmuch as it impermissibly conditions the exercise of a tenant’s statutory right to install an air conditioner on the approval of his neighbor (cf. Matter of Fink v Cole, 302 NY 216). While it is recognized that a noisy air conditioner may disturb the relative peace and tranquility attendant to the suburban lifestyle (but see People v Arkow, 204 Misc 635, 639), rule 14 unwarrantedly presumes the existence of a nuisance and attempts its abatement before it is shown to exist. Action taken which has no foundation in fact or reason is, by definition, arbitrary and capricious (cf. Matter of Schwab v McElligott, 282 NY 182, 186). Moreover, the rule fails to take into account the possibility that a neighbor’s consent might be unreasonably withheld for reasons that have no bearing on the installation of the appliance. The malice or animosity of a cantankerous neighbor may not restrict the exercise of a tenant’s statutory rights. Further, defendant advances no justification as to the reason its consent, which also may be unreasonably withheld, should be determinative of a tenant’s rights. As rule 14 is palpably arbitrary and unreasonable, it must be declared unenforceable.

The same holds true with respect to rule 4. Section 233 (subd f, par 3, cl [e]) of the Real Property Law provides, in part: "No mobile home park owner or operator shall deny any mobile home tenant the right to sell his mobile home within the mobile home park”. Rule 4, however, purports to restrict a basic incident to a tenant’s statutory right to sell his mobile home free from interference of the mobile home park operator by providing that "[n]o 'For Sale’ signs may be shown or displayed.” Both Special Term and the majority in the Appellate Division conceded that defendant does have a right to regulate the number, location and size of signs placed upon the mobile home itself and to prohibit the placing of outdoor signs on the lands. However, both courts found that rule 4 unduly restricts a method which is a necessary concomitant to a tenant’s statutory right to sell his mobile home and concluded that a tenant has a statutory right to place a reasonably sized sign in the window or upon the exterior of his mobile home.

Unreasonably prohibiting the placement of a "For Sale” sign on a tenant’s mobile home converts a tenant’s statutory guarantee of sale free from vexatious interference of the mobile home park owner into a hollow right. The grant of the right to sell necessarily includes a guarantee of the right to employ methods commonly used to market residential property. It is no answer to suggest that the tenant is not restricted from employing alternative methods of communication to inform potential purchasers that his mobile home is for sale. As the Supreme Court has recently noted: "The options to which sellers realistically are relegated—primarily newspaper advertising and listing with real estate agents— involve more cost and less autonomy than 'For Sale’ signs; * * * are less likely to reach persons not deliberately seeking sales information * * * and may be less effective media for communicating the message that is conveyed by a 'For Sale’ sign in front of the house to be sold” (Linmark Assoc, v Willingboro, 431 US 85, 93).

The pretext upon which defendant seeks to justify the promulgation of rule 4—to prevent strangers from wandering through the park, ostensibly to ascertain whether any homes were for sale, when in fact they might be selecting targets for burglary—is specious. While any attempt by defendant to protect the welfare of its tenants is certainly to be applauded, there is simply no basis in fact for concluding that a blanket prohibition of "For Sale” signs will deter potential burglars from riding around park streets to survey targets for crime, particularly where, as here, the rules contain no restriction as to public access to the park streets. Moreover, defendant’s actions with respect to the sale of mobile homes belies any reliance by it on this theory. Defendant admitted that, in functioning as broker for the sale of mobile homes in the park, it places advertisements in local newspapers stating that mobile homes are available for sale in Bohemia, New York. While the actual location of Valley Forge Village does not appear in the ads, the site of the trailer park was invariably furnished to all inquirers over the telephone.

In sum, rule 4 serves no function other than the protection of defendant’s position as broker for the sale of mobile homes in the village. As the prohibition of the posting of "For Sale” signs impairs a mobile home park tenant’s undisputed right to sell his home for no valid purpose (cf. Linmark Assoc, v Willingboro, 431 US 85, supra), it is arbitrary and unreasonable and, hence, unenforceable (Real Property Law, § 233, subd f, par 3).

Accordingly, I dissent and vote that the judgment of the Appellate Division be affirmed.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones and Fuchsberg concur with Judge Wachtler; Judge Cooke dissents and votes to affirm in a separate opinion.

Order reversed, with costs, and rules 4 and 14 declared enforceable.

       Defendant’s rules and regulations provide: "No restriction as to resale of your mobile home which is to be removed from the Park. However, all resales remaining in the park are subject to a 10% commission. Notify Management of your desire to sell so we may help you in obtaining an approved buyer and to supply you with the necessary forms to complete the sale.”


author: Fuchsberg, J.

text:
    In the Matter of Frank C. McGirr, Appellant, v Division of Veterans Affairs, Executive Department, State of New York, et al., Respondents.
    Argued January 11, 1978;
    decided February 22, 1978

      POINTS OF COUNSEL

      James Roemer, Jr. and Grover T. Odenthal for appellant.
    I. The only question presented to the court below by respondents was whether the communication from Dr. Robitzek on behalf of appellant was or was not a medical report which explained appellant’s absence. (Klingenstein v Coolidge Holding Co., 228 App Div 627; Gordon v City of Albany, 278 App Div 233; Lee v Corn Exch. Bank Trust Co., 270 App Div 2, 295 NY 945.) II. The judgment of the court below, while made on the law and the facts, makes no new or different findings of fact, nor cites no different law or rule, therefore there is no basis to sustain the substitution of its conclusion for that of the trier of the facts. III. The use of subdivision (d) of rule 5.3 of the Rules and Regulations, -Department of Civil Service (4 NYCRR 5.3 [d]) as a disciplinary device is contrary to the purpose and intent of the rule. (Matter of Dunn v Simon, 16 AD2d 719; Matter of Hayward v Cornelius, 30 AD2d 901; Matter of Cisco v McAlevey, 42 AD2d 567; Matter of Stolz v Board of Regents of Univ. of State of N. Y., 4 AD2d 361; Matter of Pell v Board of Educ., 34 NY2d 222.) IV. The Civil Service Commission has no authority to promulgate a rule imposing a disciplinary penalty without the procedures and contrary to the provisions contained in section 75 of the Civil Service Law. (Matter of Bridgman v Kern, 257 App Div 420, 282 NY 375; Matter of Jones v Berman, 37 NY2d 42.) V. The requirement by the court below that appellant should have "either 'call[ed] in’ once a week or advis[ed] his office of the nature and extent of his illness” is contrary to the applicable rules of the Department of Civil Service. (Matter of Conlon v McCoy, 22 NY2d 356.) VI. The question raised by this proceeding was and is: Did the appellant resign? VII. The appellant’s explanation of his absence was acknowledged and accepted on December 29, 1971, two days after appellant allegedly had commenced an absence without an explanation. VIII. Director Votto was not competent, without professional medical evidence, to determine whether appellant was or was not ill and therefore he had no authority in absence of such evidence to deny appellant the right to use his accumulated sick leave credits. IX. Appellant was entitled at least to reasonable notice of respondent’s intention to apply subdivision (d) of rule 5.3. X. The wording of the letter of December 29, 1971 to appellant from the Division of Veterans Affairs estops it from taking any action other than that proposed therein. XI. The termination of appellant’s civil service employment without any of the procedures provided by section 75 of the Civil Service Law is an unconstitutional deprivation of a property right without due process of law. (Slochower v Board of Educ., 350 US 551; Board of Regents v Roth, 408 US 564; Arnett v Kennedy, 416 US 134; Perry v Sindermann, 408 US 593; Goss v Lopez, 419 US 565.) XII. The arbitrary and capricious refusal by the Civil Service Commission to accept appellant’s appeal and to review the matter was a further denial of due process.

      Louis J. Lefkowitz, Attorney-General (Arlene R. Silverman and Samuel A. Hirshowitz of counsel), for respondents.
    I. Appellant has had a full hearing on his claim that his absence was explained and the record amply supports Appellate Division’s conclusion that appellant was absent without leave and without an adequate explanation. (Matter of Johnson v Director, Downstate Med. Center, State Univ. of N. Y., 52 AD2d 357, 41 NY2d 1061; Matter of Sanford v Rockefeller, 35 NY2d 547; Arnett v Kennedy, 416 US 134; Cullen v Naples, 31 NY2d 818.) II. This proceeding was barred by the four-month period of limitations applicable to article 78 proceedings. (Matter of Sirles v Cordary, 49 AD2d 330, 40 NY2d 950; Matter of Soffer v MacDuff, 205 Misc 2d 972; Matter of Nelson v Kelly, 4 AD2d 596; Matter of Davis v Kingsbury, 27 NY2d 567.)
   OPINION OF THE COURT

Fuchsberg, J.

The threshold and dispositive question before us is whether petitioner timely commenced this article 78 proceeding.

By registered letter dated January 12, 1972, petitioner was advised by his employer, the New York State Division of Veterans Affairs, that pursuant to rule 5.3 (d) of the Rules and Regulations of the Department of Civil Service (4 NYCRR 5.3 [d]) he was deemed to have "resigned” his position as a State Veterans Counselor. The rule permitted the visitation of such consequences on an employee for absence without leave and without a sufficient explanation for a period in excess of 10 working days.

Petitioner sought reconsideration but, on February 15, 1972, was officially advised by the agency that it would adhere to its determination. Before then, on February 10, he had already appealed to the State Civil Service Commission. On June 12, 1972, that appeal was dismissed on the ground that it could not be brought from a "voluntary” dismissal. The commencement of the present proceeding followed on August 18, 1972.

The invocation by the petitioner of reconsideration by the division served as a demand upon that agency that it act or perform a duty enjoined on it by law, in this case that it reinstate him. Such a demand is a prelude to the commencement of an article 78 proceeding in the nature of mandamus. The denial of reconsideration contained in the agency’s letter of February 15, 1972 constituted a rejection of the demand and set in motion the time within which judicial review had to be requested (Matter of Sirles v Cordary, 49 AD2d 330, 332, affd on opn below 40 NY2d 950). Thus, when this proceeding was commenced against the division on August 18, 1972, the four-month period prescribed by CPLR 217 had already expired.

The petitioner also claims that, because the Civil Service Commission did not dismiss the appeal taken to it until June 12, 1972, the commencement of the article 78 proceeding on August 18, 1972 was timely as against it. Assuming arguendo, that an appeal from the division’s declaration that the petitioner had "resigned” was available directly to the commission itself, in this case it was taken too late.

Under subdivision 1 of section 76 of the Civil Service Law if an employee elects to pursue the path of an administrative appeal, it must be filed "in writing within twenty days after service of written notice of the determination”. In the case before us, the advice of the original determination was given by the director of the division as early as January 12. However, notice of the appeal to the Civil Service Commission was not served before February 10, the date of the writing by means of which it was communicated. Thus, that the appeal was not taken within the 20-day period is incontrovertible. Moreover, the statute contains no provision for the tolling of the 20-day limitation during the time that an aggrieved party may seek reconsideration of its decision by the employing agency.

Consequently, administrative review of the merits of the agency’s determination by the Civil Service Commission having been time-barred, the attempt to resurrect the same question by means of this article 78 quest for judicial review of the commission’s dismissal of the belated appeal must fail (cf. Matter of Davis v Kingsbury, 30 AD2d 944, 945, affd 27 NY2d 567; Matter of Karaffa v Simon, 14 AD2d 978, 979; Matter of Nelson v Kelly, 4 AD2d 596, 598-599).

Finally, in the light of arguments presented on this appeal, we take the opportunity to point out that Matter of Johnson v Director, Downstate Med. Center (41 NY2d 1061) by no means holds that an unexplained absence may not be grounds for dismissal of an employee. Rather, the thrust of our decision in that case (p 1063) is that the "full panoply of procedural due process” required by section 75 of the Civil Service Law may not be circumvented by an administrative rule creating an irrebuttable presumption of resignation. The letter and spirit of the Civil Service Law interdicts such a facile addition to the available means for bringing about a termination of tenured public employment.

In any event, this proceeding being time-barred for the reasons we have indicated, the order of the Appellate Division should be affirmed.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Cooke concur.

Order affirmed, with costs.

      . Subsequently, when the present case was still wending its way through the courts, we declared rule 5.3 (d) invalid as in contravention of the statutory procedures contained in section 75 of the Civil Service Law (Matter of Johnson v Director, Downstate Med. Center, 41 NY2d 1061).

      . Because the specific facts underlying this petitioner’s absence are to be found in the majority memorandum at the Appellate Division (56 AD2d 653), we do not repeat them here.


text:
    In the Matter of Louis M. Francese, Respondent, v. Waterfront Commission of New York Harbor, Appellant.
    Argued October 3, 1977;
    decided November 10, 1977

      APPEARANCES OF COUNSEL

      Richard Paul Cohen and Irving Malchman for appellant.

      Peter Kaiser for respondent.
   OPINION OF THE COURT

Judgment affirmed, with costs, on the memorandum at' the Appellate Division (56 AD2d 535).

Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    The People of the State of New York, Respondent, v Willie Cofield, Appellant.
    Argued October 4, 1977;
    decided November 10, 1977

      APPEARANCES OF COUNSEL

      Carol Berkman and William E. Hellerstein for appellant.

      Robert M. Morgenthau, District Attorney (Robert Gross and Peter L. Zimroth of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed on the opinion by Mr. Justice Myles J. Lane at the Appellate Division (55 AD2d 113).

Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    Stuart Sloame, Individually and on Behalf of All Others Similarly Situated, Appellant, v Madison Square Garden Center, Inc., Respondent.
    Argued October 7, 1977;
    decided November 10, 1977

      APPEARANCES OF COUNSEL

      Sol Freedman for appellant.

      Benjamin Vinar, Thomas R. Newman and Barry G. Saretsky for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the opinion by Mr. Justice Vincent A. Lupiano at the Appellate Division (56 AD2d 92).

Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    In the Matter of Waterfront Commission of New York Harbor, Respondent, v Standard Fruit & Steamship Company, Appellant.
    Argued October 5, 1977;
    decided November 10, 1977

      APPEARANCES OF COUNSEL

      Wynne B. Stern, Jr., Morris J. Fellner and Daniel Cohen for appellant.

      Irving Malchman for respondent.
   OPINION OF THE COURT

Order modified, with costs to respondent to the extent of excusing compliance with the subpoena for 30 days from the date hereof and, as so modified, affirmed. Question certified answered in the affirmative. (See Matter of Standard Fruit & S. S. Co. v Waterfront Comm, of N. Y. Harbor, 43 NY2d 11, decided herewith.)

Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    Earnestine Alexander, Individually and as Administratrix of the Estate of Joseph Alexander, Deceased, Plaintiff, v City of New York, Appellant, and Kinney’s National Service, Inc., Respondent. (Action No. 1.) Rufus Simmons, Individually and as Administrator of the Estate of Mildred Simmons, Deceased, Plaintiff, v Kinney National Service, Inc., et al., Respondents, and City of New York, Appellant. (Action No. 2.)
    Argued October 3, 1977;
    decided November 10, 1977

      APPEARANCES OF COUNSEL

      W. Bernard Richland, Corporation Counsel (Bernard Abel and L. Kevin Sheridan of counsel), for appellant.

      William F. McNulty, Daniel J. Coughlin and Anthony J. McNulty for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (53 AD2d 846).

Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    In the Matter of Francesco Veltri, Appellant, v Daniel W. Joy, as Commissioner of the Department of Rent and Housing Maintenance, Respondent.
    Argued October 4, 1977;
    decided November 10, 1977

      APPEARANCES OF COUNSEL

      Joseph Gaier for appellant.

      Julius A. Copeland and Harry Michelson for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (55 AD2d 529).

Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    Town of Plattekill, by Its Supervisor Dominick Ferrante, Respondent, v Dutchess Sanitation, Inc., Appellant.
    Argued October 6, 1977;
    decided November 10, 1977

      APPEARANCES OF COUNSEL

      Juris G. Cederbaums and Gino E. Gallina for appellant.

      Michael H. Forrester for respondent.
   OPINION OF THE COURT

Order affirmed, with costs (see Wiggins v Town of Somers, 4 NY2d 215; Town of Stillwater v Doughty, 25 NY2d 986).

Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    In the Matter of the Arbitration between Whitney Point Central School, Appellant, and Whitney Point Teachers Association, Respondent.
    Argued October 7, 1977;
    decided November 10, 1977

      APPEARANCES OF COUNSEL

      John B. Hogan for appellant.

      Ira Paul Rubtchinsky and Bernard F. Ashe for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the opinion by Presiding Justice Harold E. Koreman at the Appellate Division (55 AD2d 439).

Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    The People of the State of New York ex rel. Gloria Cusano, Appellant, v Stanley Leone, Respondent, and Frank Cusano, Respondent.
    Argued October 13, 1977;
    decided November 10, 1977

      APPEARANCES OF COUNSEL

      Joseph P. Napoli and George A. Calabrese for appellant.

      David N. Miller for Frank Gusano, respondent.
   OPINION OF THE COURT

Memorandum. Petitioner mother appeals from orders of the Appellate Division which, inter alia, reversed a judgment of the Supreme Court sustaining a writ of habeas corpus and granting custody of two small children to their maternal grandmother. The effect of the Appellate Division orders was to retain custodial rights in the paternal grandfather with whom the children had been living for several months following the death of their father.

Emerging from the trial held by Special Term are various significant facts. Petitioner has had a history of psychological and emotional problems. She was responsible for the death of one child several years ago, while she was suffering from amphetamine poisoning, and has more recently attempted suicide. While she was in the hospital following the suicide attempt, her husband died, and the paternal grandfather took the two children. Upon her release from the hospital, petitioner went to live with her mother and commenced this proceeding. Two psychiatrists testified on petitioner’s behalf. They declared that the early incident had been the result of the amphetamine poisoning, and that the suicide attempt was a result of marital discord, constant recriminations by the husband and guilt feelings resulting from the death of the first child. They testified that in their opinion petitioner is no longer suffering from psychiatric problems, and is a fit mother for the two children. The trial court was apparently impressed by this testimony, although not to the extent of returning the children to their mother’s custody. Faced with a seemingly insoluble dilemma, the court awarded custody to the maternal grandmother, realizing of course, that the petitioner lived in the household. Thus, the court hoped to prevent the possibility of any abuse by placing legal custody in the grandmother, while at the same time not disturbing what the court deemed to be a healthy parent-child relationship. The Appellate Division reversed, in a short and rather uninformative memorandum, stating only that "Under the circumstances presented, the best interests of the children would not be served by awarding custody to the maternal grandmother”, thus leaving custody with the paternal grandfather.

The present whereabouts of the two children and the maternal grandmother are unknown. Following Special Term’s decision, the children were placed with the grandmother, and the three disappeared a few days prior to issuance of the Appellate Division order mandating return of the children to the paternal grandfather. They have apparently left the State, perhaps in an attempt to avoid the jurisdiction of the New York courts. If this action were taken on advice of counsel, it is considered to be a practice which we unequivocally condemn. Upon oral argument before this court, appellate counsel for petitioner was “not able” to give any information as to the whereabouts of the children or the maternal grandmother, except to state he had been advised the children were well.

Upon the record before us, and in view of the terse and succinct memorandum of the Appellate Division, we are unable to determine that which must always be the fundamental question in any controversy involving custody—the best interests of the children. There is simply insufficient current information before us for a balanced decision in a difficult situation such as this. It is quite clear that the petitioner has had severe psychological problems in the past, and it is important that it be determined whether these problems still persist. To reach such a determination, a more comprehensive, current psychiatric examination by court-appointed psychiatrists may well be indicated.

It would also appear that the courts below have not sufficiently investigated the living conditions in the homes of the other possible custodians, the maternal grandmother and the paternal grandfather, or, indeed, the psychological fitness of these individuals (see Matter of Bennett v Jeffreys, 40 NY2d 543). This is especially important in view of the actions of the maternal grandmother in fleeing the State with the children and implicit indications in the record of some lack of stability in the home situation of the paternal grandfather. In view of the serious questions presented by this case, independent investigation of all possible custodians is needed to supply the information necessary as a basis for an informed judgment regarding the best interests of the children.

Accordingly, the orders of the Appellate Division should be reversed, with costs, and the proceedings remitted to Supreme Court, Suffolk County, for a new hearing,2 on condition that the two children be produced and a bond be posted to insure that they remain within the jurisdiction of the court; if these conditions are not fulfilled within 30 days from the date hereof, this appeal is dismissed, with costs.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur in memorandum.

Orders reversed, etc.

      . It is to be hoped that this tactic will soon become a thing of the past. The Legislature has recently enacted, as article 5-A of the Domestic Relations Law, the Uniform Child Custody Jurisdiction Act (L 1977, ch 493). This uniform act, which to date has been enacted by at least 18 other jurisdictions, including Florida and California, is intended to eliminate forum-shopping via child-snatching in custody cases by basing jurisdiction on a "home state” concept rather than on the mere physical presence of the child within the State. (See Foster & Freed, New York’s New Child-Custody Jurisdiction Act, NYLJ, Sept. 23, 1977, p 1, col 1.)


text:
    In the Matter of the Estate of Michael Vukich, Deceased. Kevin D. Cox et al., Respondents; Adolph T. Serbus, Appellant.
    Argued October 4, 1977;
    decided November 10, 1977

      APPEARANCES OF COUNSEL

      James P. Renda for appellant.

      John J. Olszewski for respondents.
   OPINION OF THE COURT

Order affirmed for reasons stated in the memorandum at the Appellate Division (53 AD2d 1029), with costs payable to respondents out of the estate.

Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    In the Matter of the Estate of Esther V. Stavin, Deceased. Ethel K. Stavin, Appellant; Cecil Stavin, Respondent.
    Argued October 6, 1977;
    decided November 10, 1977

      APPEARANCES OF COUNSEL

      Alan I. Hayman and Andrea S. Hayman for appellant.

      Abbie Goldstein for respondent.
   OPINION OF THE COURT

Order affirmed, without costs, on the opinion by Mr. Justice Samuel J. Silverman at the Appellate Division (56 AD2d 68).

Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    The People of the State of New York ex rel. Kris Satti, on Behalf of Karim K. Satti, Respondent, v Anis K. Satti, Appellant.
    Argued October 5, 1977;
    decided November 10, 1977

      APPEARANCES OF COUNSEL

      Joel S. Stern for appellant.

      George P. Leshanski and Norman Perlman for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the opinion by Mr. Justice Samuel J. Silverman at the Appellate Division (55 AD2d 149). Question certified answered in the affirmative.

Concur; Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    Robert L. Nitkin et al., Respondents, v Administrator of the Health Services Administration of the City of New York, Appellant.
    Argued October 6, 1977;
    decided November 10, 1977

      APPEARANCES OF COUNSEL

      W. Bernard Richland, Corporation Counsel (Laurence B. Jones and L. Kevin Sheridan of counsel), for appellant.

      John Van Voorhis and Eugene Van Voorhis for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, on the opinion by Mr. Justice Harold Baer at Special Term.

Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    In the Matter of Kew Gardens Sanitarium, Inc., et al., on Behalf of Themselves and All Others Similarly Situated, Appellants-Respondents, v Robert P. Whalen, as Commissioner of the Department of Health of the State of New York, Respondent-Appellant. In the Matter of Medical Arts Sanitarium, Inc., Appellant-Respondent, v Robert P. Whalen, as Commissioner of the Department of Health of the State of New York, Respondent-Appellant.
    Argued October 12, 1977;
    decided November 15,1977

      APPEARANCES OF COUNSEL

      Robert H. Iseman for appellants-respondents.

      Louis J. Lefkowitz, Attorney-General (Clifford A. Royael and Ruth Kessler Toch of counsel), for respondent-appellant.
   OPINION OF THE COURT

Order affirmed, without costs, on the opinion by Mr. Justice Michael E. Sweeney at the Appellate Division (55 AD2d 226).

Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    Johnson, Drake & Piper, Incorporated, Appellant, v State of New York, Respondent.
    (Claim No. 48874.)
    Argued October 6, 1977;
    decided November 15,1977

      APPEARANCES OF COUNSEL

      Charles B. Molineaux, Jr., and Arthur Karger for appellant.

      Louis J. Lefkowitz, Attorney-General (Richard J. Dorsey and Ruth Kessler Toch of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Appellant’s right, if any, to damages for claimed overruns in the pile foundation work and in consequence of claimed delays in the work depends on the determination of mixed questions of fact and law to be resolved on the basis of the evidentiary facts established and the inferences fairly to be drawn from such facts. The same is true with respect to the assertions of liability based on alleged misrepresentations of the State affecting the pile foundation work (including alleged bad faith on the part of the State) and as to the scope of cofferdam work. These issues were resolved, expressly or by necessary implication, in favor of the State by the Court of Claims and such resolutions were later affirmed at the Appellate Division. As such, there being evidence in the record for their support, they are now beyond the scope of our review. We agree with the Appellate Division that, in the light of the express qualifications on its use stated by the Trial Judge, the court was entitled to utilize the claim analysis prepared by the State’s project designer and consultant to the extent that it deemed justified in reaching its decision.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur in memorandum.

Order affirmed.


text:
    Charles Middleton, Appellant, v State of New York, Respondent.
    (Claim No. 58534.)
    Argued October 7, 1977;
    decided November 15, 1977

      APPEARANCES OF COUNSEL

      Haskell Blatt Koppelman & Evans for appellant.

      Louis J. Lefkowitz, Attorney-General (Peter J. Dooley and Ruth Kessler Toch of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the opinion by Mr. Justice Robert G. Main at the Appellate Division (54 AD2d 450).

Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    The People of the State of New York, Respondent, v Hamburg Chrysler Plymouth, Inc., Appellant.
    Argued October 3, 1977;
    decided November 15, 1977
    APPEARANCES OF COUNSEL

      John F. Humann for appellant.

      Edward C. Cosgrove, District Attorney (Judith Blake Manzella of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the County Court should be affirmed.

The defendant was convicted for intentionally misrepresenting the actual mileage of an automobile sold from its used car lot in violation of section 392-e of the General Business Law. It is a misdemeanor under this statute to sell a vehicle when the odometer mileage is known to display less than the car has actually traveled, unless the transfer form accompanying the sale is marked with the entry "True mileage unknown”.

Appellant urges that its conviction must fall without proof of intent to deceive or mislead the purchaser. By its terms, however, and given the reasonable relationship between the statute and its objective, the People are only required to prove that the seller intended to commit the proscribed act (see People v Munoz, 9 NY2d 51; People v Bunis, 9 NY2d 1).

This element of the offense is established by the record. At the time defendant received the automobile its original owner advised the dealer that the vehicle’s broken odometer had already registered over 80,000 miles, as confirmed by the dealer’s own records. Yet at the time of resale two months later, a replaced odometer indicated only 36,000 miles. Whether or not this misrepresentation amounted to deceit is beside the point. The violation and conviction rests on the proven fact that the defendant never afforded the unwary purchaser the minimum disclosure mandated by the statute.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order affirmed in a memorandum.


text:
    In the Matter of Edith De Vito et al., Appellants, v Ewald B. Nyquist, as Commissioner of Education of the State of New York, et al., Respondents.
    Argued October 5, 1977;
    decided November 15, 1977

      APPEARANCES OF COUNSEL

      Michael A. Rebell for appellants.

      Lawrence W. Reich and Robert D. Stone for Ewald B. Nyquist, respondent.

      Eugene J. Fox, Corporation Counsel (Arthur J. Doran, Jr., of counsel), for Board of Education of the City of Yonkers, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The Board of Education for the City of Yonkers decided to close seven schools within the district, including School 15. Petitioners appealed the board’s decision to the commissioner (see Education Law, § 310), alleging that the board had failed to consider the safety of pupils forced to travel hazardous routes to reach their reassigned schools. The commissioner, on an adequate record before him, affirmed the board’s decision, which he found to have been "based on a number of factors, including the safety of pupils.”

The standard of judicial review for decisions of the commissioner is now governed by CPLR 7803 (subd [3]) (see L 1976, ch 857, amdg Education Law, § 310, eff Oct. 25, 1976). Of the three grounds for overturning agency action within that subdivision, the only issue now before us is whether the determination made by the commissioner was arbitrary and capricious (see Matter of Colton v Berman, 21 NY2d 322, 329). We agree with the Appellate Division that the commissioner’s affirmance possesses the requisite degree of rationality and was neither arbitrary nor capricious (see Matter of 330 Rest. Corp. v State Liq. Auth., 26 NY2d 375; Matter of Taub v Pirnie, 3 NY2d 188, 194-195).

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order affirmed, with costs, in a memorandum.