text:
    New York Public Interest Research Group, Inc., et al., Appellants, v Governor’s Advisory Commission to Make Findings and Recommendations About Problems Relating to Liability Insurance et al., Respondents.
    Submitted February 29,1988;
    decided April 28, 1988
   Motion for leave to appeal denied. Motion by Newsday, Inc., et al., for leave to appear as amici curiae dismissed as academic. The Court of Appeals restates the rule that denial of a motion for leave to appeal is not equivalent to an affirmance and has no precedential value (see, e.g., Matter of Marchant v Mead-Morrison Mfg. Co., 252 NY 284, 297-298 [Cardozo, Ch. J.]; Two Assocs. v Brown, 70 NY2d 792).


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York ex rel. Richard Winkler, Appellant, v Carmine Marasco, as Judge of the County Court, Westchester County, Respondent.
    Submitted March 7, 1988;
    decided April 28, 1988
   Motion for leave to appeal, etc., dismissed as academic. [See, 71 NY2d 592.]


text:
    The People of the State of New York ex rel. Richard Winkler, Appellant, v James Sullivan, as Superintendent of Sing Sing Correctional Facility, Respondent.
    Submitted January 25, 1988;
    decided April 28, 1988
   Motion for leave to appeal, etc., dismissed as academic. [See, 71 NY2d 592.]


text:
    In the Matter of George F. Petri, as President of the Police Benevolent Association of the Village of Hempstead, Inc., et al., Appellants, v George Milhim, as Mayor of the Incorporated Village of Hempstead, et al., Respondents.
    Decided April 28, 1988
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601).


text:
    490 Ocean Associates, Appellant, v Robert Abrams, as Attorney-General of the State of New York, Respondent.
    Argued April 21, 1988;
    decided May 3, 1988

      APPEARANCES OF COUNSEL

      Jerome R. Halperin and Alice Slater for appellant.

      Robert Abrams, Attorney-General (Gary R. Connor, O. Peter Sherwood and Donna Miller of counsel), respondent pro se.

   OPINION OF THE COURT

Memorandum.

The appeal should be dismissed, without costs, because no motion to dismiss was made by the Attorney-General.

The issue presented for review on this appeal was rendered moot when defendant accepted plaintiffs proposed offering on October 31, 1986. Acceptance of the offering occurred before the trial court ruled, apparently in ignorance of that fact, and manifestly before the Appellate Division affirmed, without opinion, and granted plaintiff leave to appeal to this court. Notwithstanding defendant’s acceptance of the proposal, plaintiffs counsel neither advised this court of the resolution of its client’s dispute nor offered any reason or argument why we should apply an exception to the mootness doctrine and address the merits (see, Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-715).

Additionally we note, as we have previously (see, Babi gian v Wachtler, 69 NY2d 1012; Matter of Pollock, 64 NY2d 1156, 1158), that this court and the appellate process are better served when an intermediate court that sees fit to grant leave to appeal in a particular case sets forth the reasons for the result it has reached. Had the Appellate Division done so here, it might indeed have discovered that the case was moot and realized that further appeal was pointless unless there were articulable reasons for excepting this case from the mootness doctrine.

Appeal dismissed, without costs, in a memorandum.


text:
    In the Matter of Leroy T. Malverty, Appellant, v Waterfront Commission of New York Harbor, Respondent.
    Decided May 3, 1988

      APPEARANCES OF COUNSEL

      Leroy T. Malverty, appellant pro se.

      David B. Greenfield and Gerald P. Lally for respondent.
   OPINION OF THE COURT

Memorandum.

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

Petitioner commenced this article 78 proceeding to review a determination of respondent Waterfront Commission of New York Harbor denying his application for restoration to the longshoremen’s register as a checker, contending that respondent had erroneously ignored the relevant provisions of article 23-A of the Correction Law (i.e., Correction Law §§ 752, 753). Respondent denied the application, in part, because of the serious nature of petitioner’s four felony convictions arising out of two schemes to defraud two Las Vegas casinos and because, as a result of these two deliberate schemes, petitioner lacked the good character and integrity needed for the sensitive position of checker. Supreme Court granted the petition to annul respondent’s determination but the Appellate Division reversed and dismissed, reasoning that a rational basis existed for denying petitioner’s application (133 AD2d 558, 559-561).

We agree with the Appellate Division, for the reasons stated in its memorandum, that a rational basis exists for respondent’s determination under the Waterfront Commission Act (see also, Matter of Sudano v Waterfront Commn., 87 AD2d 633, ajfd for reasons stated below 56 NY2d 1026). We add, however, with respect to an issue not considered by that court, that the provisions of article 23-A of the Correction Law do not apply to the New York/New Jersey Waterfront Commission.

The Waterfront Commission was established by Interstate Compact, approved by Congress (67 US Stat 541), contained in Laws of 1953 (ch 882), title 29 of McKinney’s Unconsolidated Laws of NY (§§ 9801-9937). Part I of title 29 (§§ 9801-9873) is the Interstate Compact between New York and New Jersey; parts II and III (§§ 9901-9937, respectively) consist of implementing provisions which were not part of the Interstate Compact approved by Congress but which were enacted by both the New York and New Jersey Legislatures pursuant to explicit congressional authority to amend and supplement the Compact in the manner provided (see, McKinney’s Uncons Laws of NY §§ 9870, 9937; American Sugar Ref. Co. v Waterfront Commn., 55 NY2d 11, 17, n 1, 27). Parts I and II of the Waterfront Commission Act contain provisions detailing the Commission’s power to regulate the employment of longshoremen on the New York/New Jersey waterfront (see, e.g., McKinney’s Uncons Laws of NY §§ 9828-9829, 9912, 9918).

New York and New Jersey have agreed, and Congress has authorized the two States, to amend and supplement the Interstate Compact, to implement the purposes thereof, by legislative action of either State concurred in by legislative action of the other State (McKinney’s Uncons Laws of NY § 9870). Pursuant to sections 9806 and 9905 (7), the "Compact” between the two States includes the Interstate Compact approved by Congress and any duly enacted amendments or any supplements thereto. In the past, the New York Legislature has expressly stated that certain legislation was amending a certain portion of the "Compact” and that the new law would take effect upon the enactment into law by New Jersey of legislation having an effect identical to New York’s legislation, unless New Jersey had already done so, in which case the amendment would take effect immediately.

In the present case, the absence from the text and legislative history of article 23-A of any reference to the Waterfront Commission, coupled with the absence of an express statement that the Legislature was amending or supplementing the provisions of the "Compact” and that article 23-A would take effect upon the enactment by New Jersey of legislation of identical effect, if it had not already done so, indicates that the New York Legislature never intended article 23-A to apply to the Waterfront Commission. That the two States have evinced the same, or similar, public policy regarding employment opportunities for former inmates by enacting similar "antidiscrimination” laws (see, NJ Stat Annot § 2A-168A-1 et seq. ["Rehabilitated Convicted Offenders Act”]) is not sufficient under the express terms of the "Compact” to render it properly amended or supplemented such that the Commission would be subject to the provisions of article 23-A. Respondent, therefore, did not err in failing to apply article 23-A in denying petitioner’s application for restoration of his checker registration.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

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


text:
    Ella Freidus, Respondent, v Dorothy Eisenberg, as Trustee in Bankruptcy of Todem Homes, Inc., Appellant.
    Submitted March 23, 1988;
    decided May 3, 1988

      APPEARANCES OF COUNSEL

      Israel G. Seeger for appellant.

      Jeffrey G. Stark and Michael A. Ciaffa for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by reinstating so much of the judgment as awarded damages to defendant on her counterclaim for use and occupancy and, as so modified, affirmed, with costs.

It is well settled that "parties to a civil litigation, in the absence of a strong countervailing public policy, may consent, formally or by their conduct, to the law to be applied” (Martin v City of Cohoes, 37 NY2d 162, 165). Thus, an "agreement on a theory of damages at trial, even if only implied, must control on appeal” (T. W. Oil v Consolidated Edison Co., 57 NY2d 574, 587). Here, by her conduct at trial, plaintiff consented to the submission to and consideration by the jury of defendant’s hypothetical rental value as a valid theory for measuring the damages for wrongfully withheld use and occupancy. Plaintiff, therefore, is precluded from arguing on appeal that such theory is not cognizable under law. Accordingly, the Appellate Division erred in setting aside the verdict and reducing the judgment on plaintiffs proffered rationale. We have considered defendant’s other contentions and conclude they are without merit.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Hancock, Jr., and Bellacosa concur; Judge Titone taking no part.

Order modified in accordance with the memorandum herein and, as so modified, affirmed, with costs to appellant.


author: Hancock, Jr., J.

text:
    Insurance Company of North America, Respondent-Appellant, v City of New York, Appellant-Respondent, and Bernard B. Cohen, as Receiver, Respondent.
    Argued March 25, 1988;
    decided May 3, 1988
    APPEARANCES OF COUNSEL

      Ira J. Greenhill for respondent-appellant.

      Peter L. Zimroth, Corporation Counsel (Anshel David, Glenn Newman and Stanley Buchsbaum of counsel), for appellant-respondent.

      Mitchell Steinberg for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs only to the City of New York against defendant-respondent Cohen, and judgment should be granted declaring that defendant City is entitled to payment of the proceeds of the insurance policy and that defendant Cohen is not entitled to recovery.

Plaintiff issued a fire insurance policy to defendant Cohen as court-appointed receiver of Bronx premises subject to a foreclosure proceeding. A fire loss occurred in 1984 and plaintiff paid the $20,400 proceeds of the policy to the City of New York, since the City had a real estate tax lien on the property in the sum of $58,395.02. The payment was made pursuant to Administrative Code of the City of New York § 11-2801 (3) (replacing § C17-3), providing in pertinent part: "Prior to the payment of any proceeds of a policy of insurance for damages caused by fire to real property, which policy insures the interest of an owner and is issued on real property located within the city, and following notification to the commissioner by an insurer of the filing of a claim for payment of such proceeds, the commissioner shall claim, by serving a certificate of lien, against such proceeds to the extent of any lien (including interest and penalties to the date of the claim) thereon, which claim when made and perfected in the manner provided for in section twenty-two of the general municipal law and section three hundred thirty-one of the insurance law, shall constitute a special lien against such proceeds and shall, as to such proceeds, be prior to all other liens and claims except the claim of a mortgagee of record named in such policy. Notice of the service of the certificate of the special lien shall be given to the insured by certified mail” (emphasis added).

Supreme Court and the Appellate Division, holding that the policy in favor of the receiver did not "insure the interest of the owner”, declared in this interpleader action that the receiver was thus personally entitled to the fire insurance proceeds and that the insurer was entitled to a return from the City of the "erroneously” paid proceeds so they could be paid over to the receiver.

The receiver of this property, appointed by a court in 1980, has fiduciary responsibilities which embrace, among many, standing in the stead of the financially defaulting owner of property. To this extent, and we need decide no more, the receiver, for these fire insurance purposes under the particular statute, also stands in the same relationship to the tax lienor municipality as the owner does.

The ordinary reading and construction of the pertinent Administrative Code provision plainly warrants our treating this policy, secured by the receiver, as one which insures the interest of an owner at least for purposes of satisfaction of this prioritized municipal tax lien. Arguments to the contrary require more strained construction since they would require the proceeds, possibly diminished or lost entirely, to pass through the receiver’s hands first. The protection for direct, accelerated and nondiscounted payment of the proceeds is, equally with arson fraud prevention, what this statute was designed to accomplish based on the letter and history of the authorizing provision, General Municipal Law §22 (3) (see, Letter from Assemblyman Koppell to Governor, July 28, 1977, and Mem of Secretary of State to Counsel to Governor, July 25, 1977, both in Bill Jacket, L 1977, ch 738).

Nothing inherent in the role of the receiver is contrary to or undermined by this sensible construction and result. Indeed, a separate subdivision, Administrative Code § 11-2801 (6) (replacing § C17-6) authorizes an owner — here, the receiver— to request and recoup the fire insurance proceeds from the City if used to restore the property.

Hancock, Jr., J.

(dissenting). Under both General Municipal Law § 22 (2) and Administrative Code of the City of New York § C17-3, the City may assert a claim for real estate back taxes against the proceeds of a fire insurance policy, only where the policy "insurfes] the interest of an owner [emphasis added]” in the property. Because I believe that the insurance policy in question, issued to a court-appointed receiver, does not insure the interest of an "owner” within the meaning of the statutes, I would affirm and hold that Cohen, not the City, is entitled to the insurance proceeds. Accordingly I dissent.

In 1980, defendant Bernard Cohen was appointed the receiver by Supreme Court in a mortgage foreclosure proceeding involving a parcel of realty improved by a one-story structure housing seven stores. Pursuant to his duties, Cohen purchased from plaintiff a fire insurance policy to cover loss to the property during his receivership. The policy listed Cohen as the sole "named insured”.

On May 29, 1984, the premises were damaged by fire to the extent of $20,400. The City filed a certificate of special lien on the policy for unpaid property taxes and plaintiff, pursuant thereto, paid the entire proceeds to the City. When Cohen also demanded payment on the policy, plaintiff commenced this action to determine who is entitled to the proceeds. Both the City and Cohen cross-moved for summary judgment. Supreme Court held that neither General Municipal Law §22 nor Administrative Code § C17-3 (recodified as § 11-2801 [3]) authorized the City to claim against the policy. The Appellate Division affirmed, without opinion.

The fire insurance policy here plainly does not insure the interest of an owner. The sole named beneficiary is Cohen. As a court-appointed receiver, he obtained possession of the property, not title (see, Stokes v Hoffman House, 167 NY 554, 559-560; Kenney v Home Ins. Co., 71 NY 396, 401). Since this mere possessory interest in the premises as receiver clearly does not constitute ownership, the policy does not, on its face, insure the interest of an owner. The City argues, and the majority apparently holds, however, that a receiver is, among other things, a fiduciary on behalf of the owner and, therefore, an insurance policy for the benefit of a receiver should be treated as one "insuring the interest of the owner” (see, majority mem, at 985).

I disagree. It is well settled that a receiver is not an agent of the individual parties (see, Atlantic Trust Co. v Chapman, 208 US 360, 370-371; Matter of Schwartzberg v Whalen, 96 AD2d 974, 975; Kaplan v 2108-2116 Walton Ave. Realty Co., 74 AD2d 786; Jamaica Sav. Bank v Florizal Realty Corp., 95 Misc 2d 654, 656). Rather, a receiver is an officer of the court who acts solely at its direction and on its behalf. (See, Atlantic Trust Co. v Chapman, supra; Matter of Schwartzberg v Whalen, supra; 49 NY Jur, Receivers, §§ 1, 4.) While in a sense a receiver is a fiduciary who must act for the benefit of all parties interested in the property (see, Matter of Schwartzberg v Whalen, supra, at 975), a receiver must be "indifferent” between them (Atlantic Trust Co. v Chapman, supra, at 370), owing "allegiance only to the court and not to” any particular party (Jamaica Sav. Bank v Florizal Realty Corp., supra, at 656). In short, a receiver, such as Cohen, acts as an agent of the court for the benefit of the parties collectively — not in interest of the titled owner or any particular party. Hence, I cannot agree with the majority that a receiver "stands in the same relationship to the tax lienor municipality as the owner does.” (Majority mem, at 985.)

The City contends, nevertheless, that the policy must insure the owner’s interest in the property because a receiver does not himself have any insurable interest in it. Again I disagree. In Scarola v Insurance Co. (31 NY2d 411), we stated the rule that: " Tn general a person has an insurable interest in the subject matter insured where he has such a relation or connection with, or concern in, such subject matter that he will derive pecuniary benefit or advantage from its preservation, or will suffer pecuniary loss or damage from its destruction, termination, or injury by the happening of the event insured against. Great liberality is indulged in determining whether a person has anything at hazard in the subject matter of the insurance, and any interest which would be recognized by a court of law or equity is an insurable interest.’ ” (31 NY2d, at 413, supra, quoting 44 CJS, Insurance § 175 [b].) (See also, 30 NY Jur, Insurance, § 752.) It is, therefore, not necessary that the party obtaining insurance have title to the covered property (see, Scarola v Insurance Co., supra, at 412-413; Riggs v Commercial Mut. Ins. Co., 125 NY 7, 12-13). It is sufficient if the party may be held liable, either personally or in his official capacity, for damage to property entrusted to him. For this reason a receiver has an insurable interest in the property under his control and may, therefore, obtain insurance for his own benefit (see, 149 Clinton Ave. N. v Grassi, 51 AD2d 502, 503, 506-507; 30 NY Jur, Insurance, § 759; 49 NY Jur, Receivers, §§ 64, 66).

Moreover, even assuming that the phrase "insuring the interest of an owner” could be considered ambiguous, I find nothing in the language of General Municipal Law § 22, Administrative Code § C17-3 or the legislative history which suggests that permitting the City to claim the proceeds of a fire policy issued to a receiver would further the underlying statutory purpose. On the contrary, memoranda of officials concerned with the drafting and adoption of the legislation leave no doubt that the only purpose was to discourage owners of tax delinquent properties from burning their buildings, collecting the insurance proceeds and leaving the City with no assets from which to recoup the cost of demolition or collect the back taxes (see, e.g., Bill Jacket, L 1977, ch 738, Mem in support of legislation and news release of Senator John Flynn [Senate sponsor]; Mem in Support of Assemblyman Leonard Silverman [Assembly sponsor]; Letter of Assemblyman G. Oliver Koppell [initially a cosponsor in Assembly] to Governor, dated July 28, 1977; Mem of Secretary of State Mario Cuomo to Governor, at 3, dated July 25, 1977; Letter from Department of Commerce to Governor, dated Aug. 5, 1977).

Depriving a receiver of his right to the insurance policy proceeds would certainly not serve the purpose of deterring other arson-minded property owners from their misdeeds. Nor is such a step necessary to preserve the fund since — unlike the arsonist-owner who decamps with the insurance money — the court-appointed receiver has a sworn duty to keep the fund intact. I find nothing in the legislative history supporting the statement that the purpose of the statute is to provide a municipality with "protection for direct, accelerated, and non-discounted payment of the proceeds” (majority mem, at 985). While the Legislature might choose to give a municipality a priority claim to insurance proceeds, it has not done so in this statute.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Bellacosa concur in memorandum; Judge Hancock, Jr., dissents and votes to affirm in an opinion.

Order reversed, etc.

      . Indeed, a receiver may obtain insurance only upon the court’s approval (see, 149 Clinton Ave. N. v Grassi, 51 AD2d 502, 503; Investors Ins. Co. v Gorelick, 108 Misc 2d 353, 355; see also, CPLR 6401 [b]). If the receiver fails to maintain insurance as directed or procures unauthorized insurance, he may be held personally liable for damages or the premiums, respectively (see, 149 Clinton Ave. N. v Grassi, supra, at 506-507; Investors Ins. Co. v Gorelick, supra, at 355).

      . In Assemblyman Silverman’s memorandum in support of the legislation the purpose of the bill was stated as follows: "Arson is an increasing problem within the state, and studies indicate that a significant number of fires are set for profit. This bill is an effort to remove some of the profit by limiting the proceeds of insurance policies to those sums in excess of the amount already due but unpaid to the municipalities of the state on real property taxes. In addition, the cost to the municipality for removal of a safety hazard by demolition is to be recaptured from the proceeds.” In his letter to the Governor the Commissioner of Commerce stated: "The bill will enable taxing districts to collect taxes due where a fire destroys taxed premises, and will prevent owners of such premises from collecting all the insurance, then abandoning it, leaving it to the taxing district to pay for its eventual wrecking and removal.”


text:
    In the Matter of Sara Black, Respondent, v Metropolitan Tobacco et al., Respondents. Workers’ Compensation Board, Appellant.
    Argued March 16,1988;
    decided May 3, 1988
    APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Howard B. Friedland, O. Peter Sherwood, Jane Lauer Barker and Theresa E. Wolinski of counsel), for appellant.

      Robert W. Manning for Metropolitan Tobacco and another, respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the decision of the Workers’ Compensation Board reinstated.

The decision of the Board, that decedent’s fatal heart attack was a compensable accident, was supported by substantial evidence and, therefore, should not have been disturbed (see, Matter of Gates v McBride Transp., 60 NY2d 670). There was evidence that the decedent had a history of heart disease and hypertension and that, on the day before his death, he was severely distraught because he had been told by his employer that he was being dismissed. Additionally, there was expert testimony that decedent’s notification of dismissal "was a major stress factor” resulting in "ventricular instability, subsequent fibrilation” and, ultimately, death. Based on the foregoing, the Board could find that decedent’s fatal heart attack constituted an accident arising out and in the course of his employment (see, Matter of Snyder v New York State Commn. for Human Rights, 31 NY2d 284; Matter of Klimas v Trans Caribbean Airways, 10 NY2d 209).

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur in memorandum.

Order reversed, etc.


text:
    Melinda Merrill, an Infant, by Her Mother and Natural Guardian, Frances Merrill, et al., Respondents, v Albany Medical Center Hospital et al., Defendants, and Martin E. McKneally, Appellant.
    Argued March 24, 1988;
    decided May 3, 1988

      APPEARANCES OF COUNSEL

      John B. McCrory and Domenick L. Gabrielli for appellant.

      Mark B. Wiesen for respondents.

      Thomas R. Newman and Howard R. Cohen for FOJP Service Corporation and others, amici curiae.

      Brian J. Shoot and Arnold L. Kleinick for New York State Trial Lawyers’ Association, amicus curiae.

   OPINION OF THE COURT

Appeal dismissed, with costs. Jurisdiction for the appeal is predicated upon CPLR 5601 (a), which requires that, at the Appellate Division, there be "a dissent by at least two justices on a question of law in favor of the party taking [the] appeal”. Although the dissent in the present case purports to address questions of law, an examination of the full record reveals that the arguments upon which the dissent is predicated were not raised by appellant in the trial court. While the Appellate Division has jurisdiction to address unpreserved issues in the interest of justice, the Court of Appeals may not address such issues in the absence of objection in the trial court. Accordingly, the dissent was not on a question of law which would be reviewable by the Court of Appeals and the appeal must be dismissed (see, Sam & Mary Hous. Corp. v Jo/Sal Mkt. Corp., 62 NY2d 941; Guaspari v Gorsky, 29 NY2d 891).


text:
    Kyle Crawford, an Infant, by His Mother and Natural Guardian, Romaine Crawford, et al., Plaintiffs, v Hospital of the Albert Einstein College of Medicine et al., Defendants. (And a Third-Party Action.) Yeshiva University, Fourth-Party Plaintiff-Respondent, v Argonaut Insurance Company, Fourth-Party Defendant-Appellant.
    Submitted February 22, 1988;
    decided May 3, 1988
   Motion for leave to appeal dismissed for mootness.


text:
    In the Matter of Henia Friedland, Appellant, v Gordon Ambach, as Commissioner of Education of the State of New York, et al., Respondents.
    Decided May 3, 1988
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no appeal lies as of right from the unanimous Appellate Division order, absent the direct involvement of a substantial constitutional question. (CPLR 5601.)


text:
    In the Matter of Walter D. Kirkland, Appellant, v State Division of Human Rights et al., Respondents.
    Decided May 3, 1988
   Appeal from Appellate Division order dated October 16, 1986 dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no substantial constitutional question is directly involved. Appeals from Appellate Division orders dated December 4, 1986 and November 9, 1987 dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the orders appealed from do not finally determine the proceeding within the meaning of the Constitution. Appeal from the nonfinal Supreme Court order dated December 2, 1987 dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that it does not lie. (CPLR 5601.)


text:
    In the Matter of Harold W. Schwartz, Appellant, v New York City Transit Authority, Respondent.
    Decided May 3, 1988
   Appeal from so much of the Appellate Division order as dismissed petitioner’s appeal from the May 7, 1987 order of Supreme Court and affirmed the June 24, 1987 order of Supreme Court, dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that that portion of the order appealed from does not finally determine the proceeding within the meaning of the Constitution. Appeal from the remainder of the Appellate Division order dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Louis J. Rotunno et al., Respondents, v City of Rochester, Defendant, and New York State Liquor Authority, Appellant.
    Argued April 19,1988;
    decided May 26, 1988

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Peter J. Dooley, O. Peter Sherwood and Peter H. Schiff of counsel), for appellant.

      Paul J. Yesawich, III, and David W. Lippitt for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Presiding Justice Michael F. Dillon at the Appellate Division (120 AD2d 160).

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa.


text:
    The People of the State of New York, Respondent, v Larry B. Denno and Frederick A. Springer, Appellants.
    Argued April 21, 1988;
    decided May 26, 1988

      APPEARANCES OF COUNSEL

      Jeffrey T. Canale for Larry B. Denno, appellant.

      Elan Y Cherney for Frederick A. Springer, appellant.

      Gordon M. Hemmett, Jr., District Attorney, for respondent.
   OPINION OF THE COURT

Order affirmed for reasons stated in the opinion by Justice Howard A. Levine at the Appellate Division (127 AD2d 250).

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa.


text:
    Joseph T. Gallea et al., Appellants, v Hess Realty Corporation, Respondent.
    Argued April 19, 1988;
    decided May 26, 1988

      APPEARANCES OF COUNSEL

      Richard S. Mayberry for appellants.

      Donald A. W. Smith for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Justice John F. Lawton at the Appellate Division (128 AD2d 274).

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa.


text:
    Frances G., Respondent, v Vincent G., Appellant.
    Argued April 20, 1988;
    decided May 26, 1988
    APPEARANCES OF COUNSEL

      Vincent G., appellant pro se.

      Lynn J. Maier for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the case remitted to the Appellate Division for determination of the factual issues, if any, raised on the appeal to that court.

Plaintiff sought a divorce, on the ground of constructive abandonment. At trial, she testified that she and her husband had not engaged in sexual relations for more than one year prior to the commencement of the action, and that he refused to discuss the issue or attend counseling. Defendant, on the other hand, testified that plaintiff said she hated him, and was not interested in sexual relations with him. The jury found in favor of defendant, in effect determining that plaintiff was not entitled to a divorce based on constructive abandonment because she consented to a sex-limited relationship (see, Domestic Relations Law § 170 [2]; Hammer v Hammer, 34 NY2d 545, 546; Schine v Schine, 31 NY2d 113, 119, rearg denied 31 NY2d 805). The trial court subsequently granted plaintiff’s motion for judgment as a matter of law (CPLR 4404 [a]), and awarded her a divorce on the ground of constructive abandonment. A divided Appellate Division affirmed.

Judgment as a matter of law may be granted to a party after a contrary jury verdict only if "there is simply no valid line of reasoning and permissible inferences which could possibly lead rational [jurors] to the conclusion reached by the jury on the basis of the evidence presented at trial” (Cohen v Hallmark Cards, 45 NY2d 493, 499). In this case, defendant’s testimony provided a rational basis for the jury’s verdict. Hence, plaintiff was not entitled, as a matter of law, to a divorce on the ground of constructive abandonment. However, because plaintiff also sought a new trial on the ground that the verdict was against the weight of the evidence, we deem it appropriate to remit this case to the Appellate Division for determination of the factual issues, if any, raised on the appeal to that court.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order reversed, with costs, and case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the memorandum herein.


text:
    The People of the State of New York, Respondent, v Gerald Moore, Appellant. The People of the State of New York, Respondent, v Eddie Hall, Appellant. The People of the State of New York, Respondent, v Pierre Davis, Appellant.
    Argued April 22, 1988;
    decided May 26, 1988

      APPEARANCES OF COUNSEL

      Jennifer S. Brand and Philip L. Weinstein for appellant in the first above-entitled action.

      John Gemmill and Philip L. Weinstein for appellant in the second above-entitled action.

      Marsha Taubenhaus and Philip L. Weinstein for appellant in the third above-entitled action.

      Robert M. Morgenthau, District Attorney (Catherine M. Cook and Amy jane Rettew of counsel), for respondent in the first above-entitled action.

      John J. Santucci, District Attorney (Ivan Vogel of counsel), for respondent in the second above-entitled action.

      Robert M. Morgenthau, District Attorney (Ann M. Donnelly and Amyjane Rettew of counsel), for respondent in the third above-entitled action.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division in each case should be affirmed.

The defendants in these three cases challenge the use of prior convictions, obtained on guilty pleas, as the basis for sentencing them as predicate felons. Each defendant argues that the facts adduced at the plea allocutions were insufficient to establish the elements of the crime.

Initially, we note that defendants may challenge predicate convictions in this context only on constitutional grounds (CPL 400.21 [7] [b]). A guilty plea may be involuntary, and therefore unconstitutionally obtained, either because the defendant did not voluntarily and intelligently waive the protections afforded by the Constitution or because the defendant did not know the nature of the charges against him (Henderson v Morgan, 426 US 637, 645, n 13). However, merely showing that the defendant did not expressly admit a particular element of the crime in the factual allocution is not sufficient, by itself, to raise a constitutional claim; all of the circumstances surrounding the plea must be considered to determine whether the defendant understood the nature of the charges against him (People v Nixon, 21 NY2d 338, cert denied sub nom. Robinson v New York, 393 US 1067).

In People v Moore, defendant contends that his 1983 plea to criminal possession of stolen property in the second degree was insufficient because he never admitted that he knew the property was stolen. However, the record indicates that defendant agreed to plead to this charge on advice of counsel after his suppression motion was denied, that he was aware of the charge, and that he admitted possessing credit cards which did not belong to him. Since it can be inferred from defendant’s admission that he knew the credit cards were stolen (cf., People v McGowen, 42 NY2d 905, 906), he understood the nature of the charge, and the elements of the crime to which he pleaded were established. Therefore, the 1983 conviction can be used as a basis for sentencing defendant as a predicate felon.

In People v Hall, defendant contends that his 1975 plea to attempted criminal possession of a weapon in the third degree was insufficient because the allocution contained no facts showing that he possessed a loaded firearm or that the gun was operable. The record indicates that defendant told the court, upon inquiry, that the police "found a .38 on him”. Although this inquiry did not establish that defendant possessed a "loaded firearm”, an element of criminal possession of a weapon in the third degree (see, Penal Law § 265.02 [4]; § 265.00 [15]), or that the gun was operable, since defendant pleaded guilty to a lesser crime than the one charged in the indictment, a factual basis for the plea was unnecessary (see, People v Clairborne, 29 NY2d 950, 951; People v Fooks, 21 NY2d 338, 350). Therefore the omission in the factual inquiry is irrelevant in this case and the 1975 conviction can be used as a basis for sentencing defendant as a second violent felony offender.

In People v Davis, defendant contends that his 1977 plea to robbery in the second degree was insufficient because he never admitted or acknowledged that he used force in committing the crime. However, the record indicates that defendant agreed to plead to this charge on advice of counsel, that the prosecutor stated, without dispute, that defendant "used knives” and "stole money” from the complainant, and that, upon inquiry by the court, defendant agreed that he "stole property” from the complainant. This inquiry, coupled with the unrefuted statements of the prosecutor, sufficiently established that defendant did use force, and that he understood the nature of the charges. Therefore, the 1977 conviction can be used as a basis for sentencing defendant as a predicate felon.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

In each case: Order affirmed in a memorandum.


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    The People of the State of New York, Respondent, v Lyman Green, Appellant.
    Argued April 19, 1988;
    decided May 26, 1988

      APPEARANCES OF COUNSEL

      Alan E. Kudisch for appellant.

      John J. Santucci, District Attorney (Kenneth Appelbaum of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted of robbery in the second degree (Penal Law § 160.10 [1]) and assault in the second degree (Penal Law § 120.05 [6]). Defendant argues that, because the jury acquitted his codefendant of the robbery as an accomplice pursuant to Penal Law § 20.00, the verdict is repugnant. He contends that the jury necessarily made the contradictory findings that, in committing the robbery, the defendant was "aided by another person actually present” and that, for accomplice liability purposes, the codefendant, the other person present, did not aid him.

A determination of whether a verdict is repugnant is based solely on a review of the trial court’s charge regardless of its accuracy (see, People v Hampton, 61 NY2d 963, 964; People v Tucker, 55 NY2d 1, 7). An examination of the instructions given to the jury here reveals that the trial court, in defining the phrase "aided by another person actually present” for purposes of Penal Law § 160.10 (1), did not instruct the jury that the actions and mental state of the other person had to be sufficient to convict that person as an accomplice under Penal Law § 20.00. Accordingly, we conclude that the jury’s verdict was not inherently contradictory (cf, People v Hampton, supra). We note, however, that the Appellate Division erroneously viewed the verdicts as not being repugnant both by going beyond the elements of the crimes as charged and by making a factual analysis of the evidence (People v Tucker, supra, at 4).

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed in a memorandum.


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    In the Matter of Judith Mack, Appellant, v County of Rockland, Respondent. Workers’ Compensation Board, Respondent.
    Argued April 22, 1988;
    decided May 26, 1988

      APPEARANCES OF COUNSEL

      David MacRae Wagner for appellant.

      Henriette Frieder and Hugh O’Boyle for County of Rockland, respondent.
   OPINION OF THE COURT

Memorandum.

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

Claimant, a psychiatric social worker, suffered an aggravation of a preexisting eye disorder while in respondent’s employ as a result of exposure to cigarette smoking in a poorly ventilated room. The Workers’ Compensation Board, reversing the decision of the Administrative Law Judge in claimant’s favor, determined that the claimant’s condition was not an "occupational disease” within the meaning of the section 3 (2) of the Workers’ Compensation Law. The Appellate Division affirmed.

It is settled that an "occupational disease”, under the statute as it existed at the time of claimant’s injury and claim, is restricted to medical conditions resulting from the ordinary and generally recognized risks incident to a particular occupation. An "occupational disease” derives from the very nature of the employment, not a specific condition peculiar to the employee’s place of work (see, Matter of Paider v Park E. Movers, 19 NY2d 373, 377; Matter of Goldberg v 954 Marcy Corp., 276 NY 313, 318-319). Because claimant’s injury was caused solely by the environmental conditions of her work place, not by any distinctive feature of the occupation of a psychiatric social worker, the Board had a proper legal basis to deny her claim.

This claim arose prior to the enactment of an amendment to section 2 (15) of the Workers’ Compensation Law which added a definition of "occupational disease” to the statute (L 1984, ch 659). We do not decide what, if any, change in the definition the amendment has effected.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed, with costs, in a memorandum.


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    The People of the State of New York, Respondent, v Kenny Ali, Also Known as Lamburt Kumansineh, Appellant.
    Argued April 22, 1988;
    decided May 26, 1988
    APPEARANCES OF COUNSEL

      John B. Garrity, Jr., Public Defender (Gerald V. Hayes of counsel), for appellant.

      William V. Grady, District Attorney (Alfred T. Tallakson of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

State Troopers, responding to a report of an automobile accident, found defendant injured and lying near the vehicle on Route 44 in Pleasant Valley. The police recovered from the car a vial of cocaine and a marihuana cigarette, in plain view. Defendant was arrested for driving while his ability was impaired and for possession of narcotics and was taken to a local hospital for treatment. While in the emergency room, defendant volunteered information about a machine gun in the trunk of the car and about additional drugs located in the motel in Poughkeepsie where he was staying with a friend. The police searched the trunk of the car and recovered the machine gun and some cocaine. Meanwhile, the friend arrived at the hospital to visit defendant. After the State Troopers confronted her with the evidence, she agreed to take them to the motel room registered in her name and to permit them to search for the additional drugs. Six small plastic bags of cocaine were seized from a canvas bag that was located in the closet.

In a pretrial suppression hearing, defendant challenged the woman’s consent to the warrantless search of their motel room, the closet and defendant’s canvas bag. While asserting that defendant had no standing to contest that issue, the hearing court denied the motion to suppress, finding that the friend had voluntarily consented to the search. The Appellate Division affirmed, disagreeing with the suppression court on the standing issue but upholding the denial of suppression, nevertheless, partly on the consent ground. The Appellate Division, however, inappropriately applied the alternative rationale found in People v Middleton (54 NY2d 474) and concluded that defendant had himself relinquished any expectation of privacy in the bag in the closet in the motel room as an additional basis for its result.

Stripped to its essentials, the only decisive issue in this case is the consent by defendant’s friend to the warrantless search. While defendant had standing to contest the search, the consent to it is supported by evidence in the record and by undisturbed findings.

Defendant’s remaining contentions are without merit.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed in a memorandum.


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    Army & Navy Supply Stores Corp. et al., Appellants, v Consolidated Edison Company of New York, Inc., Respondent.
    Submitted March 7, 1988;
    decided May 26, 1988
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order as affirmed Supreme Court’s order denying plaintiffs’ motion for leave to serve a second amended complaint, dismissed upon the ground that that part of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


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    The People of the State of New York, Respondent, v Carl Collier, Appellant.
    Submitted May 9, 1988;
    decided May 26, 1988
   Motion insofar as it seeks a stay denied; motion insofar as it seeks a calendar preference denied as unnecessary, the appeal having already been set down for the May-June session of this court.


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    The People of the State of New York, Respondent, v Eric Ellis, Appellant.
    Submitted March 28, 1988;
    decided May 26, 1988
   Motion to dismiss appeal granted and appeal dismissed upon the ground that the criminal prosecution has abated by reason of defendant’s death (People v Parker, 71 NY2d 887; People v Pacheco, 67 NY2d 631; People v Jackson, 66 NY2d 1034; People v Mintz, 20 NY2d 753, 770).


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    Patricia Lotz, Appellant, v Walter B. Lotz, Respondent.
    Submitted March 7, 1988;
    decided May 26, 1988
   Motion to dismiss the appeal granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division, absent the direct involvement of a substantial constitutional question (CPLR 5601 [a], [b]).


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    Irving A. Mandel, Individually and as a Partner of Mandel & Grunfeld, Appellant, v Harold M. Grunfeld et al., Respondents.
    Decided May 26, 1988
   Appeal from the December 18, 1986 order of the Appellate Division dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.

Appeal from the March 17, 1988 order of the Appellate Division dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that as to defendants Mitchell, Klestadt, Scher and Loring, no substantial constitutional question is directly involved, and as to the remaining defendants, upon the ground that the order does not finally determine the action within the meaning of the Constitution.

Chief Judge Wachtler taking no part.


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    In the Matter of State Farm Mutual Automobile Insurance Company, Respondent, v Aetna Casualty and Surety Company, Appellant.
    Decided May 31, 1988

      APPEARANCES OF COUNSEL

      Eileen E. Buholtz for appellant.

      Michael A. Reddy for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (132 AD2d 930).

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacos a.


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    The People of the State of New York, Respondent, v Rita M. Strempack, Appellant.
    Decided May 31, 1988
    APPEARANCES OF COUNSEL

      Jeremiah M. Flaherty for appellant.

      Michael Kavanagh, District Attorney (Joan Lamb of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defense counsel’s failure to make a suppression motion prior to negotiating a plea bargain for his client does not, on this record, constitute ineffective assistance of counsel. Although defendant might have prevailed on such a motion, success was by no means certain. Had the suppression motion been denied, it is doubtful that the favorable bargain counsel obtained for defendant would still have been available. Thus, defense counsel’s representation was consistent with a legitimate and ultimately successful strategy (see, People v Benn, 68 NY2d 941, 942; People v Rivera, 71 NY2d 705).

Defendant’s remaining contentions are without merit.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

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


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    The People of the State of New York, Respondent, v William Russell, Appellant.
    Argued April 19, 1988;
    decided May 31, 1988

      APPEARANCES OF COUNSEL

      Stephen A. Brusch and Gilbert A. Holmes for appellant.

      Denis Dillon, District Attorney (Douglas Noll and Anthony J. Gírese of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Appellant and a codefendant, Floyd Bailey, were each charged with two counts of rape, sodomy and unlawful imprisonment of a 14-year-old female. Originally, codefendant Bailey and another man, Darryl Schermerhorn, were arrested in connection with the crimes. Bailey confessed, implicating himself and appellant Russell, at which point Schermerhorn was released and Russell was arrested.

A joint jury trial was held and Bailey’s redacted confession, which referred to himself and "another person”, was introduced without objection. Defendant was convicted on all counts. The Appellate Division modified by reversing defendant’s conviction for unlawful imprisonment and dismissing that count of the indictment (127 AD2d 805).

Appellant now challenges the conviction on the rape and sodomy counts by maintaining that because Bailey’s redacted confession was admitted at trial, the denial of his motion to sever is reversible error. The purposes and requirements of the preservation rules are not satisfied by intertwining and piggy-backing distinct procedural steps of the criminal proceeding, as for example severance motions and evidentiary submissions. Defendant failed, therefore, to preserve the claim with respect to the admission of the codefendant’s redacted statements because no objection whatsoever was made as to that at the appropriate time, that is, when it was offered into evidence.

To be sure, a pretrial motion to sever the trials of the respective defendants was made by appellant’s counsel. But this was before the admissibility of the codefendant’s statement had even been determined. The trial court denied that motion expressly as "premature” and "without prejudice to renew”. On the eve of the trial, after the codefendant’s statement was found to be admissible in a Huntley hearing, appellant’s counsel sought a "verification” that the court would not grant a severance of trial. The Trial Judge verified that and added that the codefendant’s statement would be redacted to remove any reference to appellant by name. Counsel registered no complaint whatever, failed to state that a redaction was objectionable, and did not renew the motion to sever in the specific light of and with reference to the ruling on the admissibility of the codefendant’s confession and how it was going to be qualifiedly admitted into evidence. Instead, trial counsel acquiesced, proceeded with trial and waited until after the court had instructed the jury; only then did he for the very first time question the efficacy of the redaction and renew the motion for the severance. That was too late for preservation purposes in any event.

Appellant also claims that the admission of certain other evidence pointed to him as the "other person” referred to in codefendant Bailey’s confession, thus negating any protection afforded by the redaction. Virtually all the evidence appellant now contends linked him to Bailey’s confession was admitted without objection, and whatever is preserved for review is so inconsequential as not to amount to prejudicial error, if error at all.

Appellant’s remaining contentions are also either without merit or unpreserved.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed in a memorandum.


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    The People of the State of New York, Respondent, v Kenneth Walker, Appellant.
    Argued April 19, 1988;
    decided May 31, 1988

      APPEARANCES OF COUNSEL

      George Grun and John F. Middlemiss, Jr., for appellant.

      Patrick Henry, District Attorney (Emily A. Constant of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant and two codefendants, Darrell and Michael Bossett, were jointly tried before a jury in connection with the stabbing death of Donald McGirth. The prosecution’s theory of the case was that the Bossett brothers and defendant, acting together, murdered McGirth as revenge for the shooting of Leslie "Lay Lay” Covington, who had been shot by rival drug dealers with whom McGirth was associated.

The first joint trial resulted in a mistrial. A second joint trial was held during which a civilian witness testified that when told of McGirth’s death, Darrell Bossett responded, "Really, that’s good. They would all pay. We did it for Lay Lay.” When asked if he knew who killed McGirth, the same witness testified that Darrell responded, "We did it.” Defendant Walker was convicted of murder, second degree, and the Appellate Division affirmed (129 AD2d 658).

On appeal defendant contends that the trial court erred in refusing to grant his motion for a severance of trial and that his right to confrontation was violated by the denial of that motion (US Const 6th Amend; People v Cruz, 66 NY2d 61, 66, revd on other grounds 481 US —, 107 S Ct 1714, on remand 70 NY2d 733; Bruton v United States, 391 US 123).

Appellant Walker’s motion to sever was made orally prior to the commencement of the first trial. It was not renewed prior to commencement of the second trial, nor for that matter at any time during the second trial, and that is a fatal procedural defect based on sound preservation principles. Orderly and fair procedure requires that the trial court be given timely and adequate opportunity to rule on and explain claims in the context of the trial and trial record which has relevance to the issue advanced. There was no assertion on the pertinent issue in the only trial of any legal import and, thus, it is not preserved for our review.

Moreover, our requirement for this preservation threshold here is fortified by People v Cruz (66 NY2d 61, 66, revd on other grounds 481 US —, 107 S Ct 1714, on remand 70 NY2d 733, supra) itself, where the first trial also resulted in a mistrial but defendant’s original motion to sever was renewed prior to the second trial.

Defendant’s other contentions are either without merit or unpreserved.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed in a memorandum.


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    Department of Housing Preservation and Development of the City of New York, Respondent, v Valer Fersedy et al., Appellants.
    Submitted March 28, 1988;
    decided May 31, 1988
   Motion dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain a motion for leave to appeal from the nonfinal order of the Appellate Division entered in a proceeding commenced in the Civil Court of the City of New York (NY Const, art VI, § 3 [b] [6], [7]; CPLR 5602 [a] [1] [i]).


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    Department of Housing Preservation and Development of the City of New York, Respondent, v Valer Fersedy et al., Appellants.
    Submitted April 4, 1988;
    decided May 31, 1988
   Motion dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain a motion for leave to appeal from the nonfinal order of the Appellate Division entered in a proceeding commenced in the Civil Court of the City of New York (NY Const, art VI, § 3 [b] [6], [7]; CPLR 5602 [a] [1] [i]).


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    In the Matter of Cleo K. Kim H. et al., Appellants; Commissioner of Social Services of the City of New York, Respondent.
    Submitted May 16, 1988;
    decided May 31, 1988
   Motion denied insofar as it seeks leave to appeal from so much of the order of the Appellate Division as denied the CPLR article 78 relief sought. Motion otherwise dismissed upon the ground that the remainder of the order of the Appellate Division does not finally determine an action or proceeding within the meaning of the Constitution.


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    In the Matter of Lee Pokoik, Respondent, v Department of Health Services, County of Suffolk et al., Appellants.
    Submitted May 23, 1988;
    decided May 31, 1988
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution and that it is not the type of nonfinal order within the meaning of CPLR 5602 (a) (2). Cross motion to vacate statutory stay dismissed as academic.


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    Bernard Siegel, Respondent, v Adele Siegel, Appellant.
    Decided May 31, 1988
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601 [a], [b]).


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    Sutton Fifty-Six Company et al., Respondents, v Robert L. Garrison, as Administrator of the Estate of James Garrison, Deceased, et al., Appellants.
    Submitted April 4, 1988;
    decided May 31, 1988
   Motion dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain a motion for leave to appeal from an order of the Appellate Division entered in a proceeding commenced in the Civil Court of the City of New York (NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a] [1] [i])-


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    In the Matter of the T. Children. Commissioner of the New York City Department of Social Services et al., Respondents; Miguel T., Appellant.
    Submitted May 16, 1988;
    decided May 31, 1988
   Motion denied insofar as it seeks leave to appeal from so much of the order of the Appellate Division as denied the CPLR article 78 relief sought. Motion otherwise dismissed upon the ground that the remainder of the order of the Appellate Division does not finally determine an action or proceeding within the meaning of the Constitution.


author: Alexander, J.

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    George W. Purdy, Appellant-Respondent, v Public Administrator of County of Westchester, as Administrator of the Estate of Emily Shaw, Deceased, Respondent, et al., Defendant, and Bethel Methodist Home, Respondent. George W. Purdy, Appellant-Respondent, v Elio Argenziano, Respondent. Public Administrator of County of Westchester, as Administrator of the Estate of Emily Shaw, Deceased, Third-Party Plaintiff-Respondent-Appellant, v Elio Argenziano, Third-Party Defendant-Respondent.
    Argued April 20, 1988;
    decided May 31, 1988

      POINTS OF COUNSEL

      Raymond J. Keegan and Norman Bard for George W. Purdy, appellant-respondent.
    I. The Bethel nursing home and its medical director, Dr. Argenziano, Emily Shaw’s private physician, as a matter of public policy, owed a reasonable duty to Emily Shaw to protect her from injuring herself and others by preventing her or advising her, under the circumstances, not to drive her car which advice, if given, as a model patient, she would have followed. (Cartier v Long Is. Coll. Hosp., 111 AD2d 894; Eiseman v State of New York, 70 NY2d 175; Killeen v State of New York, 66 NY2d 850; Hirsch v State of New York, 8 NY2d 125; Comiskey v State of New York, 71 AD2d 699; Horton v Niagara Falls Mem. Med. Center, 51 AD2d 152; Robertson v Towns Hosp., 178 App Div 285; Schrempf v State of New York, 66 NY2d 289; Williams v State of New York, 308 NY 548; Santangelo v State of New York, 103 Misc 2d 578; Robilotto v State of New York, 104 Misc 2d 713.) II. Plaintiff established proximate cause. The danger to be avoided by the negligence of defendants was the "blacking out or fainting” of Emily Shaw. Emily Shaw herself stated that she blacked out before the accident. (Dunham v Village of Canisteo, 303 NY 498; Calvaruso v Our Lady of Peace R. C. Church, 36 AD2d 755; Wingerter v State of New York, 79 AD2d 817; Derdiarian v Felix Contr. Corp., 51 NY2d 308; Taype v City of New York, 82 AD2d 648; Kallenberg v Beth Israel Hosp., 45 AD2d 177, 37 NY2d 719; Bell v New York City Health & Hosps. Corp., 90 AD2d 270.) III. The evidence elicited permitted a finding that Bethel Methodist Home had the right to control the activities of Emily Shaw sufficient to prevent her from driving a car. The trial court committed reversible error in not permitting the testimony of the exercise of that control postaccident. (Putnam v Stout, 38 NY2d 607; Scudero v Campbell, 288 NY 328; Antonsen v Bay Ridge Sav. Bank, 292 NY 143; Klatz v Armor Elevator Co., 93 AD2d 633.)

      Carol Ann Weinman, Roger P. McTiernan and Michael Close for Public Administrator of the County of Westchester, respondent and third-party plaintiff-respondent-appellant.
    I. Under the facts of this case, Bethel Methodist Home and Dr. Argenziano owed a duty to warn Emily Shaw against driving her automobile to protect her from injuring herself and others. (Schumacher v Richards Shear Co., 59 NY2d 239; Pulka v Edelman, 40 NY2d 781; Strauss v Belle Realty Co., 65 NY2d 399; Velez v City of New York, 45 AD2d 887; Knapp v Gould Auto. Co., 252 App Div 430; Higgins v Mason, 255 NY 104; Schrempf v State of New York, 66 NY2d 289; Killeen v State of New York, 66 NY2d 850; Zophy v State of New York, 27 AD2d 414, 22 NY2d 921; Horton v Niagara Falls Mem. Med. Center, 51 AD2d 152; Robertson v Towns Hosp., 178 App Div 285.) II. The evidence presented at trial established that respondents’ negligence was the proximate cause of plaintiff-appellant’s injuries. (Derdiarian v Felix Contr. Corp., 51 NY2d 308; Nallan v Helmsley-Spear, Inc., 50 NY2d 507; Maida v Velella, 124 AD2d 561; Vinogradov v Clicquot Club Co., 55 AD2d 489; Mack v Altmans Stage Light. Co., 98 AD2d 468.) III. The trial court’s respondeat superior charge was logically inconsistent with its Dole/Dow charge and should not have been given.

      Kevin M. Loftus and Carolyn A. Chieco for Bethel Methodist Home, respondent.
    I. The court below was correct in its holding that there was no duty running to plaintiff, George W. Purdy, from Bethel Methodist Home as a result of Emily Shaw’s residence there at or as a result of the fact that the Bethel health-related facility did not prevent Emily Shaw from operating her motor vehicle. (Pulka v Edelman, 40 NY2d 781; Strauss v Belle Realty Co., 65 NY2d 399; Thompson v Ange, 83 AD2d 193; Cartier v Long Is. Coll. Hosp., 111 AD2d 894; Brady v Hopper, 751 F2d 329; Vu v Singer Co., 706 F2d 1027; Leedy v Hartnett, 510 F Supp 1125; Doyle v United States, 530 F Supp 1278; Eiseman v State of New York, 70 NY2d 175; Schrempf v State of New York, 66 NY2d 289.) II. The court below was correct in its determination that public policy does not call for the imposition of a duty between Bethel nursing home and the members of the general public. (Lichtenstein v Montefiore Hosp. & Med. Center, 56 AD2d 281.) III. The court below was correct in its affirmance of the trial court Judge’s finding that plaintiff had failed to establish proximate causation. (Santangelo v State of New York, 103 Misc 2d 578; Eiseman v State of New York, 70 NY2d 175; St. George v State of New York, 308 NY 681; Orman v State of New York, 37 AD2d 674; Ulma v Yonkers Gen. Hosp., 53 AD2d 626; Paradies v Benedictine Hosp., 77 AD2d 757.) IV. The trial court was correct in excluding evidence of postaccident events. (Eiseman v State of New York, 70 NY2d 175; Davis v Solondz, 122 AD2d 401.)

      Timothy P. Coon for Elio Argenziano, respondent and third-party defendant-respondent.
    I. The court below was correct in holding that there was no duty owed to plaintiff-appellant to restrain Shaw from operating her motor vehicle. (Cartier v Long Is. Coll. Hosp., 111 AD2d 894; Eiseman v State of New York, 70 NY2d 175; Schrempf v State of New York, 66 NY2d 289; Purdy v Public Adm’r of County of Westchester, 127 AD2d 285.) II. Plaintiff failed to establish, by any evidence, that the alleged deviation from good and accepted medical practice on the part of Dr. Argenziano was a proximate cause of the injuries suffered by plaintiff. (Snider v Snider, 160 NY 151; Kletnieks v Brookhaven Mem. Assn., 53 AD2d 169; Lichtenstein v Montefiore Hosp. & Med. Center, 56 AD2d 281; Canter v Mulnick, 60 NY2d 689; Schneider v Kings Highway Hosp. Center, 67 NY2d 743.) III. To hold that Dr. Argenziano owed a duty to Shaw which inures to the benefit of plaintiff would establish physicians as the insurers of this State’s highways. (D’Amico v Christie, 71 NY2d 76; Pulka v Edelman, 40 NY2d 781.)

      Robert Abrams, Attorney-General (Michael S. Buskus, O. Peter Sherwood and Peter H. Schiff of counsel), for the State of New York, amicus curiae.

    I. The constitutional, statutory and regulatory guarantees of freedom of choice for patients are antithetical to the recognition of a tort duty of care, with its corollary "control”, which would erode those civil rights of patients. (Eiseman v State of New York, 70 NY2d 175; Pulka v Edelman, 40 NY2d 781; D’Amico v Christie, 71 NY2d 76; Maida v Velella, 124 AD2d 561, 69 NY2d 1026; Vogel v West Mountain Corp., 97 AD2d 46; Griffith v City of New York, 123 AD2d 830, 69 NY2d 729; Gill v New York City Hous. Auth., 130 AD2d 256; Palella v Ulmer, 136 Misc 2d 34; Crandall v Kocak, 114 AD2d 713; Jaroszewicz v Facilities Dev. Corp., 115 AD2d 159.) II. This court should reject the analysis of those jurisdictions which have expanded the beneficiaries of a physician’s duty to warn patients of medication risks to an unlimited universe of unidentified potential victims of intervening negligent driving by such a patient. (Wolfgruber v Upjohn Co., 72 AD2d 59, 52 NY2d 768; Eiseman v State of New York, 70 NY2d 175.) III. There is no need to consider, and less reason to adopt, the flawed "special relationship” analysis invented by the California Supreme Court in Tarasoff v Regents of Univ. of Cal. (17 Cal 3d 425, 551 P2d 334 [1976]). (Anthony v United States, 616 F Supp 156; Eiseman v State of New York, 70 NY2d 175; Pulka v Edelman, 40 NY2d 781; D’Amico v

      Christie, 71 NY2d 76; Currie v United States, 644 F Supp 1074; Lipari v Sears Roebuck & Co., 497 F Supp 185; Hasenei v United States, 541 F Supp 999.) IV. Existing New York case law does not support liability. (Schrempf v State of New York, 66 NY2d 289; Williams v State of New York, 308 NY 548; Santangelo v State of New York, 103 Misc 2d 578; Robilotto v State of New York, 104 Misc 2d 713; Tarter v State of New York, 68 NY2d 511; Eiseman v State of New York, 70 NY2d 175.)
   OPINION OF THE COURT

Alexander, J.

In November 1979, plaintiff, while a customer at a gas station in Brewster, New York, was struck by a speeding car that crashed into the gas station and seriously injured him. The car was owned and operated by Emily Shaw, who on the date of the accident, was a 73-year-old voluntary resident of the defendant Bethel Methodist Home with a medical condition that left her susceptible to fainting spells and blackouts. The issue presented on this appeal is whether defendants Bethel and the facility’s admitting physician, Dr. Argenziano, owed to plaintiff — an unidentified member of the public — a duty either to prevent Shaw from driving or to warn her of the dangers of driving given her medical condition. We hold that in the circumstances presented, defendants were under no duty to prevent Shaw from operating a motor vehicle off the premises, or to warn her of any danger of her so doing.

I.

Defendant, Bethel Methodist Home (Bethel), operates as a health-related facility, required by statute to provide its residents with "lodging, board and physical care including, but not limited to, the recording of health information, dietary supervision and supervised hygienic services” (Public Health Law §2801 [4] [b]; 10 NYCRR 414.1 [a] [1]); health-related facilities afford to residents some degree of institutional care and services, but not the degree required of a hospital or a skilled nursing facility (see, Public Health Law § 2801 [2], [4] [a], [b]; 10 NYCRR 414.1 [c] [8]). Shortly before her admission to Bethel on October 10, 1979, Shaw had been hospitalized for a stroke which left her susceptible to fainting spells and blackouts. Indeed, it is not now disputed that the accident was a consequence of her having blacked out at the wheel of her automobile. Pursuant to her contract with Bethel, Shaw became a voluntary resident of the facility and consented to routine medical treatment and inoculations and restraints as ordered by the facility’s physician. She further agreed to allow Bethel "to act in any emergency, in any way it deems necessary for the benefit of the resident”, but insofar as she was a voluntary resident, she did not relinquish general autonomy.

Upon admission to Bethel, Shaw was examined by defendant, Dr. Elio Argenziano, Bethel’s medical director and the physician responsible for overseeing the health care of all the residents. Pursuant to regulations, Dr. Argenziano took Shaw’s medical history and conducted the admission examination (see, 10 NYCRR 741.1 [k]). Dr. Argenziano thereafter issued an order authorizing Shaw to leave Bethel unaccompanied. He did not question her as to whether she owned a car, whether she knew how to drive, or whether she intended to drive while a resident at Bethel.

Plaintiff commenced this action to recover damages for personal injury against Shaw, Bethel and Dr. Argenziano. The crux of plaintiff’s claim against defendants Bethel and Dr. Argenziano is that both were negligent in failing to prohibit Shaw from operating a motor vehicle when they knew or had reason to know that Shaw might, because of her medical condition, blackout at the wheel. Plaintiff also claimed that defendants, and particularly Dr. Argenziano as Shaw’s attending physician, were negligent in failing to warn her of the danger of her driving in her condition. The jury returned a verdict in plaintiff’s favor and apportioned liability in the amount of 10% to the estate of Shaw, 30% to Bethel and 60% to Dr. Argenziano. With respect to defendants Bethel and Dr. Argenziano, the Trial Judge set aside the verdict and directed judgment in their favor, concluding that plaintiff had failed to establish that the breach of any duty owed was the proximate cause of the injuries sustained. The Appellate Division affirmed, holding that neither defendant owed a duty to plaintiff —a member of the public — either to prevent a resident from, or to warn her against, operating a motor vehicle off the facility’s premises. The appeal is here by leave of this court, and we now affirm.

II.

The question of whether a member or group of society owes a duty of care to reasonably avoid injury to another is of course a question of law for the courts (Eiseman v State of New York, 70 NY2d 175, 187; De Angelis v Lutheran Med. Center, 58 NY2d 1053, 1055). In the ordinary circumstance, common law in the State of New York does not impose a duty to control the conduct of third persons to prevent them from causing injury to others; liability for the negligent acts of third persons generally arises when the defendant has authority to control the actions of such third persons (D’Amico v Christie, 71 NY2d 76, 88-89; see, Eiseman v State of New York, 70 NY2d 175, 191, supra; Pulka v Edelman, 40 NY2d 781, 783; see generally, Restatement [Second] of Torts §§ 314, 315). This is so, we have said, even where "as a practical matter” defendant could have exercised such control (D’Amico v Christie, 71 NY2d 76, 88, supra; Pulka v Edelman, 40 NY2d 781, 784, supra).

Of course, there exist special circumstances in which there is sufficient authority and ability to control the conduct of third persons that we have identified a duty to do so. Thus, we have imposed a duty to control the conduct of others where there is a special relationship: a relationship between defendant and a third person whose actions expose plaintiff to harm such as would require the defendant to attempt to control the third person’s conduct; or a relationship between the defendant and plaintiff requiring defendant to protect the plaintiff from the conduct of others (see, Pulka v Edelman, 40 NY2d 781, 783, supra; Harper & Kime, Duty to Control the Conduct of Another, 43 Yale LJ 886, 887-888). Under the appropriate circumstances, the traditional master-servant relationship, the relationship between a parent and child, or the relationship between a common carrier and its passenger are examples of such relationships (see generally, 3 Harper and James, Torts § 18.7, at 732-742 [2d ed]).

Here, plaintiff concedes the lack of any relationship between himself and defendants. Thus, the imposition of a duty on defendants would have to arise out of some special relationship between defendants and Shaw such as would require them to control Shaw’s conduct for the benefit of plaintiff. We conclude, however, that neither Bethel nor Dr. Argenziano had the necessary authority or ability to exercise such control over Shaw’s conduct so as to give rise to a duty on their part to protect plaintiff — a member of the general public (see generally, Eiseman v State of New York, 70 NY2d 175 supra; Schrempf v State of New York, 66 NY2d 289, 296).

Shaw was a voluntary resident at Bethel with no medical reason — as is implicit in Dr. Argenziano’s order — impeding her ability to leave Bethel unaccompanied; Shaw could come and go as she pleased. Plaintiff points to no provision of the Public Health Law or regulation governing health-related facilities that either authorizes or requires defendants to prevent Shaw — in nonemergency situations — from leaving the premises or to control her conduct while she is off the premises. Indeed, the statute and regulations provide for just the opposite — the right of the voluntary resident to make independent personal decisions (10 NYCRR 414.14 [a] [19]), the right to exercise civil and religious liberties (Public Health Law § 2803-c [3] [a]), and the right to be free from physical restraint, except where emergency dictates otherwise (Public Health Law § 2803-c [3] [h]; see, e.g., Cartier v Long Is. Coll. Hosp., 111 AD2d 894; Harland v State of California, 75 Cal App 3d 475, 142 Cal Rptr 201, 205). Nor did the contractual relationship between Bethel and Shaw give defendants the authority in nonemergency circumstances to restrict Shaw from leaving the facility, or to control her conduct while she was away from the facility.

Plaintiff’s alternative theory of liability — that defendants owed plaintiff a duty to warn Shaw that her medical condition impaired her ability to operate a motor vehicle safely — is also unavailing. A physician’s duty of care is ordinarily one owed to his or her patient. With respect to the physician-patient relationship giving rise to a duty owing to members of an indeterminate class of persons, we have only recently stated in the context of a physician reporting to a college admissions office the results of a physical examination of an applicant to the college that "the physician plainly owed a duty of care to his patient and to persons he knew or reasonably should have known were relying on him for this service to his patient”, but that the physician did not "undertake a duty to the community at large” (Eiseman v State of New York, 70 NY2d 175, 188, supra). Plaintiff directs our attention to those jurisdictions that have held that a treating physician’s relationship with a patient was sufficient to impose a duty in favor of unidentified members of the public to warn the patient of the adverse effects of prescribed medication on the safe operation of an automobile (see, e.g., Gooden v Tips, 651 SW2d 364 [Tex] [imposing on treating physician duty to warn but not to control conduct]; Kaiser v Suburban Transp. Sys., 65 Wash 2d 461, 398 P2d 14 [same]; Welke v Kuzilla, 140 Mich App 658, 365 NW2d 205; but see, Kirk v Reese Hosp. & Med. Center, 117 Ill 2d 507, 513 NE2d 387 [no duty in favor of general public]). No such situation is presented here. Dr. Argenziano was not Shaw’s treating physician, and therefore was under no legal obligation to warn her of possible dangers involved in activities in which she chose to engage off the premises of the facility. Nor has plaintiff demonstrated that Shaw’s impaired driving ability was attributable to any medication prescribed to her by Dr. Argenziano without appropriate warnings.

Insofar as plaintiff failed to demonstrate what is essential to the maintenance of this action against these defendants — that defendants owed a duty to plaintiff to prevent Shaw from driving off the premises of their facility — the Appellate Division correctly affirmed the trial court’s setting aside the jury verdict and directing entry of judgment in defendants’ favor.

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

Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed, with costs.

      . Shaw has since died of causes unrelated to the automobile accident, and her estate is represented by defendant Public Administrator.

      . For these reasons, the third-party complaint brought by the Public Administrator against Dr. Argenziano was also properly dismissed.