author: Cooke, J. (dissenting).

text:
    Patricia M. Batton, Appellant, v Agadgan Elghanayan et al., Doing Business as Bailey Gardens Co., Respondents.
    Argued January 4, 1978;
    decided February 14, 1978

      APPEARANCES OF COUNSEL

      George H. Mortimer for appellant.

      William F. McNulty, Harold M. Foster and Anthony J. McNulty for respondents.
   OPINION OF THE COURT

Memorandum.

The order appealed from should be reversed, with costs, and the case remitted to Supreme Court, Westchester County, for a new trial. Unlike the situation in Mooney v Turner (35 AD2d 674), the five photographs in this case, the accuracy of which has not been challenged, are sufficiently clear and precise to create an issue of fact as to constructive notice of the defect which is best submitted to and evaluated by the jury. We note that these photographs were taken the day after the accident, that the plaintiff has testified that they are a fair and accurate representation of the scene of the accident as of the time of the accident, and that the hole is in a basement floor. Although reasonable men might well differ on the proper inference to be drawn, it would not be unreasonable for a jury to infer from the condition of the defect, as indicated by the discoloration of the concrete-like substance shown in the photographs, that the hole in the basement floor had been there a sufficiently long time that the landlord should have known of the defect.

It is not to be taken that proof of the condition at the scene of an accident such as this (thus permitting an inference as to the duration of the condition) may always be made by the use of photographs. In this case, we cannot say as a matter of law, that these photographs were insufficient for this purpose.

Cooke, J. (dissenting).

I dissent and vote to uphold the determinations of the majority of the Appellate Division and that of the trial court that the insufficiency of plaintiff’s proof required dismissal of the complaint at the close of her case.

Although notice would not be an essential element of a cause of action when the hazardous condition, such as a defect in workmanship, had been created by a defendant, or by his agent or employee whose conduct and knowledge are imputable to him, common-law liability may generally not be imposed upon a landlord for such a condition existing in the common passageways and demised areas over which he has retained control absent notice, actual or constructive (Putnam v Stout, 38 NY2d 607, 612; Pratt, Hurst & Co. v Tailer, 186 NY 417, 421; Mirabel and Levy, Law of Negligence, § 565; 2B Warren’s Negligence, Landlord and Tenant, § 6.01, see, also, § 6.04).

Here, there was no proof either that defendants or anyone on their behalf created the "defective condition of the floor and threshold” alleged by plaintiff or that actual notice was given to defendants. Thus, as conceded by plaintiff in her brief, "[t]he only issue * * * is whether plaintiff’s evidence [was] sufficient to prove constructive notice.” More specifically, the pivotal issue is whether five photographs in evidence, taken the day after the accident in question and authenticated by testimony that they were fair and correct representations of the area in which and at the time plaintiff fell, were adequate in themselves to establish constructive notice.

Constructive notice in this respect means such notice as the law imputes from the circumstances of the case, so that where a defective condition has existed for such a length of time that knowledge thereof should have been acquired in the exercise of reasonable care by a landlord, then such a party will be held to have known what he should have known as a result of such care (see Todd v City of Troy, 61 NY 506, 509; Magid v City of New York, 234 App Div 38, 42, affd 259 NY 618; 2B Warren’s Negligence, Landlord and Tenant, § 6.01; 1 Shear-man and Redfield, Negligence [rev ed], pp 46-47; cf. MacArthur v Coxon Real Estate, 28 AD2d 1191, mot for lv to app den 21 NY2d 643). It is thus at once obvious that a period of time is an essential ingredient of this species of notice, since the mere existence of a dangerous condition on premises will not charge a landlord with negligence unless there was notice (6 Schwartz, Trial of Accident Cases, § 6041, p 6:21-5; cf. Wollsteiner v Ohrbach’s, Inc., 1 AD2d 946).

Plaintiff having testified that certain photographs accurately represented the condition of the place where and at the time she claims she caught her foot and fell and the description of that place at that time being relevant, there is no question but that those photographs were admissible insofar as they related to that subject (Richardson, Evidence [Prince-10th ed], § 137, pp 109-110). (For this discussion, no opinion need be expressed as to the admissibility of plaintiff’s exhibit "3”, a photograph received over objection and purportedly being a fair and correct representation of the area of the accident but also showing a young man holding what appears to be a yardstick at or near the spot of the fall [see 3 Wigmore, Evidence (Chadbourn rev), § 798; 29 Am Jur 2d, Evidence, § 793; see, also, Photographs-Authentication, Ann., 9 ALR2d 899, 926 et seq.].)

On the other hand, these black and white photographs, unsupported by testimony as to duration, were insufficient per se to establish such an abstract dimension as the length of time the condition portrayed had existed (see Valle v City of New York, 22 Mise 2d 985, 986; Rotker v City of New York, 124 NYS2d 231, 233, affd NYLJ, Jan 21, 1955, p 6, col 4; but see, also, Shapiro v Hotel Corp. of Amer., 25 AD2d 828; Gibbons v City of New York, 200 Mise 699, 700, 701; Fisch, New York Evidence [2d ed], § 142, p 83; 29 Am Jur 2d, Evidence, § 785, p 859). Granted that certain photographs may reveal the existence of defects for sufficiently long periods so as to furnish a basis for constructive notice (see McDermot v City of New York, 287 F2d 49, 50; Valle v City of New York, 22 Mise 2d 985, 987-988, supra), these do not. There are darker areas and lighter areas depicted, referred to by the majority as "the discoloration of the concrete-like substance shown”. If the floor surface was of concrete or some similar material, the lighter areas might well signify a fresh rupture caused by the dropping or dragging of a heavy object, such as a trunk, piece of machinery or cleaning appliance. There are no indications or proof of continued wear, growth or decay and, for all that appears, the depression may have been of very recent origin or even created immediately prior to the accident. To infer from the exhibits the cause of the indentation or the length of its existence would be an exercise in speculation. Thus, there was insufficient proof to establish that the landlord had constructive notice and the complaint was properly dismissed.

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

Order reversed, etc.

      . It has been stated that under the doctrine of res ipsa loquitur, not applicable here, no notice need be proven (see Dittiger v Isal Realty Corp., 290 NY 492, 494; Griffen v Manice, 166 NY 188, 193, 196; Katz v Goldring, 237 App Div 824; 1 Shearman and Redfield, Negligence [rev ed], § 56; 6 Schwartz, Trial of Accident Cases, § 6041, p 6:21-5; Kramer, Rules of Evidence in Negligence Cases [3d ed], p 35).

      . During the oral argument of defendants’ motion to dismiss, the Trial Justice asked plaintiff’s counsel, "So how do we satisfy that requirement [constructive notice]?”, to which said counsel responded, "I feel, your Honor, that requirement is satisfied by the photographs which were identified as existing, as the condition as it existed on May 29th, 1965 [the date of the accident].” The dissent at the Appellate Division recognized that "[t]he present factual pattern does not provide evidence, aside from the photographs, to establish constructive notice” (55 AD2d, at p 667).


source: Caselaw Access Project

author: Fuchsberg, J. (dissenting).

license: Public Domain

text:
    The People of the State of New York, Appellant, v Robert McLaurin, Respondent.
    Argued January 6, 1978;
    decided February 14, 1978

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (Richard M. Seltzer, Peter L. Zimroth and Robert M. Pitler of counsel), for appellant.

      Carol Berkman and William E. Hellerstein for respondent.
   OPINION OF THE COURT

Order reversed on the dissenting opinion by Mr. Justice Emilio Nunez at the Appellate Division (56 AD2d, at pp 84-85; see, also, People v Kinlock, 43 NY2d 832) and the case remitted to the Appellate Division, First Department, for review of the facts.

Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Cooke. Judge Fuchsberg dissents and votes to affirm in the following opinion.

Fuchsberg, J. (dissenting).

In my view, the order of the Appellate Division, which suppressed the avails of an illegal search and seizure, did no more than correctly , enforce constitutional safeguards designed to prevent unreasonable trespasses on the liberties which mark us as a free people. Believing, therefore, that today’s reversal lowers the barriers and, by doing so, impermissibly substitutes a deeper dependence on the grace and discretion of those in authority for the much more secure protections of proved principle, I would vote to affirm.

This case grows out of an anonymous telephone message received by the police and then relayed to the officer on a radio run. Only about a year and a half ago in People v La Pene (40 NY2d 210, 224), we expressly stated that "Tips of this nature”—conveyed by an unknown, unseen, and unidentified individual through a nonpersonal medium—are among the "weakest sort” of justifications for police action. Such calls are notoriously false and malicious; even in instances where they include some descriptive details that would help identify the particular persons against whom anonymous communications are directed, much more often than not they "expose innocent persons to harassment by pranksters and irresponsible meddlers” (People v Green, 35 NY2d 193, 196). Moreover anyone who ultimately undertakes to act on a tip which he or she did not receive firsthand will be handicapped by lack of exposure to the informer’s voice, facial expressions, gestures, and other evidence of emotion, mind or motive which ordinarily are so essential to our estimates of the reliability of what we are told by even nonanonymous strangers. It is therefore no surprise that a recent Vera Institute of Justice report entitled Felony Arrests: Their Prosecution and Disposition in New York Courts (xi-xii [1977]) indicates that as many as 90% of such tips may prove to be unfounded.

In the recent past, this high order of unreliability has caused us, rightly I think, to impose a twofold caution on those who proceed on the basis of an anonymous tip whose source cannot be verified or held to account. First, if practical, there should be a careful search for indicia of reliability in the caller and his story. Second and more important, in the manner and extent of any intrusion on person and privacy precipitated by such a call there must be an exercise of restraint compatible with the limited nature of the verification that has taken place and the inherent unreliability of a person who will not disclose who he is.

The anonymous information here was that an armed man walking with a limp and wearing a red jacket and sneakers had just been seen entering a "red front building” on Fifth Avenue near 115th Street in Manhattan. It is notable that there was no suggestion that the man had ever committed or was about to commit a crime or that he had otherwise demonstrated a disposition to use the weapon he carried, a gun, for such a purpose (cf. People v Green, supra, p 196). Repairing to the scene on that limited information alone, a police officer saw the defendant Robert McLaurin. It is conceded that what McLaurin was then doing was innocuous enough: he was walking in the street. It appears that the area was well lit. There was nothing furtive or unusual in his manner. Nor was there the slightest indication that he would be other than completely and placidly responsive to the police. There was no weapon in his hands and no revealing, or even, suspicious, "bulge” in his clothes to suggest that he was in fact armed (cf. People v La Pene, supra, pp 210, 226). Only one other person was on the street at the time; there was nothing remarkable about him either.

Nevertheless the policeman paused for no preliminary inquiry whatsoever. He did not even attempt to engage Mc-Laurin in conversation, though the defendant had shown no inclination to leave the scene and though the officer expected two fellow officers who had entered a nearby building to join him in seconds.

Instead, gun in hand, and without any attempt at "verbal and visual inquiry” (People v Stewart, 41 NY2d 65, 69) he proceeded first to forcibly stop and then to begin to search McLaurin, in the course of which the latter readily admitted possessing the revolver which became the subject of the suppression motion. In so approaching him, the policeman employed a gesture more forceful than the "bear hug” we condemned in People v Bronk (31 NY2d 995, affg on opn at App Term 66 Mise 2d 932).

In sum the officer’s intrusion far exceeded what the circumstances would have permitted. Initially, at least, a lesser measure, such as a stop to inquire, had to be employed (see People v Townes, 41 NY2d 97, 101). Significantly, in other cases in which this court has upheld searches that followed upon tips reporting possession of a gun there was no display of arms (see People v Stroller, 42 NY2d 1052 [though defendant unresponsive to officer’s questions]; People v Williams, 41 NY2d 65 [despite prior official encounters with defendant and presence of suggestive bulge]; see, also, People v Kinlock, 43 NY2d 832).

In the end, the result in a case such as this one must depend on whether there is a reasonable basis to act on the assumption that the individual targeted by the anonymous caller is armed with a gun and would use it against the officer. It is then a matter of where and how we draw the line. If our liberties are not to be dissolved, the line must not be fixed by reaction to exaggerated public fears or to the hysteria of the moment. Surely, if we hearken to such cries too easily, more lawbreakers will be apprehended. But then far, far larger numbers of lawabiding people will be readily and regularly exposed to insult and intrusion, as will the quality of our society. Both our State and Federal Constitutions were intended to keep that from happening.

Order reversed, etc.


text:
    Ruby M. Johnson, as Administratrix of the Estate of Irving Johnson, Deceased, Appellant, v Cleveland A. Hickson et al., Respondents, et al., Defendants.
    Argued January 4, 1978;
    decided February 14, 1978

      APPEARANCES OF COUNSEL

      Richard Gralicer and Carmine Marasco for appellant.

      Donald A. Mead and Richard L. Magro for Humble Leasing Co. and Cleveland A. Hickson, respondents.

      Arthur R. Calger for Jimmy Gadson, respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff’s intestate was killed as the result of a 1969 motor vehicle accident on the New York State Thruway. Defendant Threatt, in whose vehicle decedent was a passenger, stopped to aid defendant Gadson whose car had a flat tire and was stopped in the extreme left-hand lane of three lanes of pavement. A third car, operated by defendant Hickson and owned by Humble Leasing Co., struck the rear of the Gadson vehicle propelling it forward and upon decedent. The car driven by Hickson rebounded into the middle lane where it came into contact with defendant Dworkin’s car. At the trial of this action instituted to recover for wrongful death and conscious pain and suffering, the complaint was dismissed as against Dworkin at the close of plaintiff’s case and subsequently the jury returned a verdict in favor of the remaining defendants.

On the subject of contributory negligence, the jury was charged in effect that, as to all defendants except Gadson, decedent was required to exercise the same degree of care that a reasonably prudent person would have exercised for his own safety under the same circumstances. However, as to Gadson, the jury was instructed in substance that if an emergency situation existed decedent’s actions would have to be found rash and wanton in order to constitute contributory negligence.

Without determining whether an emergency situation existed here, it should be recognized that "[wjhether a plaintiff was contributorily negligent depends only on his conduct under the circumstances, including any emergency which may have confronted him, and should not depend upon whether any particular individual apart from himself created that emergency or affected his conduct” (Raimondo v Harding, 41 AD2d 62, 65; see, also, Hart v Scribner, 44 AD2d 59, 64; Restatement, Torts 2d, § 472, Comment b). In special findings made by the jury, it was found: (1) as to defendants Humble Leasing Co. and Hickson, that plaintiff established they were negligent and that defendants established decedent was contributorily negligent; (2) as to defendant Gadson, that plaintiff established he was negligent and that defendants established decedent was contributorily negligent; and (3) as to defendant Threatt, that plaintiff did not establish said defendant was negligent. It is obvious that the jury recognized the basic issues for what they were—factual determinations of whether under the circumstances the respective defendants were negligent and whether decedent was contributorily negligent. Since decedent was found to be contributorily negligent under the lesser standard of care applicable to him with respect to defendant Gadson, plaintiff was not prejudiced by the charge as to the greater standard of care applied to decedent with respect to defendants Hickson and Humble Leasing Co. Thus, regardless of which standard of care was appropriate, the jury’s finding of rash and wanton conduct by decedent precluded plaintiff’s recovery against all defendants. Although the charge was not a model of clarity on certain subjects, its infirmities do not warrant reversal under the circumstances, and we find no reversible error in the remaining contentions of appellant.

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

Order affirmed.


author:
      Per Curiam.
     Chief Judge Breitel (dissenting).

text:
    Anthony A. Castellano et al., Appellants, v State of New York et al., Respondents.
    (Claim No. 54477.)
    Argued November 14, 1977;
    decided February 14, 1978

      APPEARANCES OF COUNSEL

      Morton N. Wekstein for appellants.

      L. Victor Vaccaro for Yonkers Realty Associates, respondent.

      Louis J. Lefkowitz, Attorney-General (Vernon Stuart and Ruth Kessler Toch of counsel), for State of New York, respondent.
   OPINION OF THE COURT

Per Curiam.

In June, 1970, pursuant to sections 30 and 349-c of the Highway Law, the State appropriated a portion of two adjacent parcels in the City of Yonkers in Westchester County. Parcel I was owned in fee by claimants Castellano and leased to Yonkers Realty Associates. The latter owned Parcel II. A building housing an S. Klein Department Store straddled the two parcels. Following the taking: claimants Castellano filed a claim as fee owners of Parcel I (Claim No. 54477); and Yonkers Realty filed two claims, one as lessee of Parcel I (Claim No. 54102) and the other as fee owner of Parcel II (Claim No. 54106). This appeal concerns a dispute between the Castellanos, as fee owners, and Yonkers Realty, as lessee, with respect to amounts awarded for Parcel I.

The Court of Claims denied the State’s motion for consolidation of the three claims, but ordered that its motion for a joint trial be granted. Based on a taking of 19,103+ square feet in Parcel I and permanent and temporary easements, the court found that Parcel I suffered direct and consequential damages amounting to $180,034. In considering how this sum should be apportioned between the owner and lessee, the court rejected the landlords’ argument that correction of an alleged typographical error in clause (d) of paragraph 12 of the land lease established that the landlords were entitled to the entire proceeds of the award, concluding that the proof presented was insufficient and further that the court lacked jurisdiction to reform the lease. Instead, the court awarded the Castellanos $16,675, representing their reversionary interest as fee owners and the present worth of the rental loss, and awarded the balance of the damages, approximately $164,000, to lessee Yonkers Realty. These awards were embodied in separate judgments.

Cross appeals were taken to the Appellate Division, which found no error in amount of damages determined or in the result reached in allocating said amount. That court held, however, that the Court of Claims improperly rejected the State’s attempt to introduce partial payment agreements into evidence solely for the purpose of proving that there should be a suspension of interest on the amounts stated in said agreements as of 30 days after the State sent closing papers to the claimants pursuant to the agreements. Hence, it modified by reversing so much of the judgments as provided for interest on the awards and remitted the matter for a determination of the question of interest.

The fee owners, the Castellanos, appealed pursuant to CPLR 5601 (subd [d]) from the judgment of the Court of Claims entered following the remittal by the Appellate Division. On this court’s own motion, Yonkers Realty Associates was joined to this appeal pursuant to CPLR 1003.

There should be a reversal. It is a fundamental principle that the Court of Claims has jurisdiction, and indeed an obligation, to make an award in compliance with the terms of an agreement between a landlord and a tenant and that in so doing it may exclude one of the parties from part or all of an award to which it might otherwise be entitled (see Traendly v State of New York, 51 AD2d 489, affd 43 NY2d 804; Cooney Bros, v State of New York, 24 NY2d 387; Matter of City of New York [Allen St], 256 NY 236). In the instant matter, the owners made at least a prima facie case for their entitlement to the award by showing that the use of the word "Lessor” in a part of clause (d) of paragraph 12 of the lease was grammatically inconsistent with the rest of the lease. Further proof was offered, but it is unnecessary to detail it here. The point is that from the outset the case was not capable of proper resolution because of the failure to explore fully how this interpretation of clause (d) of paragraph 12 might affect the allocation of damages.

It was asserted that a reformation of the lease was sought and that the Court of Claims lacked jurisdiction for such an undertaking. The fact is, however, that what was requested was an interpretation rather than what might be characterized as a reformation. To carry out the intention of a contract, words may be transposed, rejected, or supplied, to make its meaning more clear (Bintz v City of Hornell, 268 App Div 742, 747; Potthoff v Safety Armorite Conduit Co., 143 App Div 161, 163; see, also, Long Is. R. R. Co. v Northville Inds. Co., 41 NY2d 455, 463; Castelli v Burns, 156 App Div 200). This was a question of interpretation properly within the jurisdiction of the Court of Claims.

At trial, proof was offered to show what was intended in clause (d) of paragraph 12 of the lease, but the trial court’s resolution of this issue was impeded because it assumed that the relief sought was reformation and that the court lacked jurisdiction to grant this remedy. If the court had been of the view that it could substitute one word for another in order to make clear the meaning of the lease, the proof offered may have furnished additional support for the interpretation urged by the Castellanos. To focus on this issue, the case should be remitted for further proceedings so that such proof may be considered in the context of a trial at which the court recognizes that it may determine that the parties intended to use the word "Lessee” in the relevant portion of clause (d) of paragraph 12. The court may thus explore all that may be offered to show what is the proper interpretation of clause (d) of paragraph 12 and how it might relate to the other provisions of the lease. When examining the condemnation clauses, however, the court should be mindful that there may be a distinction between how the award should be judicially allocated and the manner in which the parties have agreed to apply it (see Traendly v State of New York, 43 NY2d 804, supra).

In conclusion, by remitting, this court does not open up or touch upon the judgment in favor of the claim made by Yonkers Realty (Claim No. 54102). Since the State has failed to appeal from the judgment on that claim, this court may not interfere with or disturb that judgment, even if the State is required to pay twice for the same damage. In future cases, to avoid procedural difficulties, ordinarily claims of this sort should be consolidated and, if consolidation is not ordered, to avoid a potential duplication of liability, the State should appeal from all judgments relating to claims in respect to the same property.

Accordingly, the judgment appealed from and the order of the Appellate Division brought up for review should be reversed, without costs, and the case remitted to the Court of Claims for further proceedings in accordance with this opinion with respect to the allocation of damages to claimants-appellants for the property in question.

Chief Judge Breitel (dissenting).

I dissent and vote to affirm. The trial court’s conclusion that it lacked power to reform the lease, even if erroneous, does not require remittal because the court also concluded, correctly, that, aside from any absence of power, there was insufficient proof to support the lessors’ contention that the lease contained a typographical error. By implication, inferable from its memorandum, the Appellate Division reached the same conclusion with respect to the insufficiency of the proof. Since the trial court’s apportionment of damages, affirmed by the Appellate Division, was in accordance with the terms of the lease, there should be an affirmance.

Determinative of the allocation of the award in eminent domain are, of course, the terms of the lease from the Castellanos, as lessors, to Yonkers, the current lessee (see Matter of City of New York [Allen St.], 256 NY 236, 242-243). Paragraph 12 of the lease deals with the respective rights of the parties in the event of a taking in éminent domain. Clauses (a) and (b) of paragraph 12 refer to the effect on the lease itself of a total or partial taking. It is the next two clauses, (c) and (d), dealing with apportionment of condemnation awards, that are of concern in this litigation.

Clause (c) of paragraph 12 defines the lessee’s right to compensation in eminent domain: "(c) It is expressly understood and agreed that no part of any award, however, shall belong to the Lessee except that part of any award relating to the value of the building or buildings taken and Lessee’s interest in leasehold if any award is made therefor, less depreciation. No such depreciation shall be deemed to take place during the first two years of this lease. Thereafter, such depreciation shall be conclusively presumed to be at the rate of one (1%) per cent per year and the Lessee’s award shall be reduced accordingly. Subject to the foregoing provisions it is expressly agreed that the Lessee shall be entitled to any award made for the building or buildings, and for the Lessee’s interest in the leasehold, if any is awarded by the Court.” Thus, the lessee is entitled to recover for the value of its leasehold, that is, the capitalized excess of market rental value over the rent reserved, and for the value of the buildings. The language dealing with depreciation provides an adjustment for valuing the buildings, but would have no economic or legal application to valuing the leasehold. A leasehold does not depreciate in the sense that term is normally used; a leasehold’s value may decline but the declination is a function of capitalizing the excess of the market rent over the reserved rent for the balance of the lease period.

Clause (d) allocates the remainder of any condemnation award to the lessors: "(d) Awards for the value of the land and the value of the buildings and improvements as of the end of the term herein, and the Lessors’ interest in and to the value of its leasehold, if any is awarded, are hereby assigned to the Lessors and they are given complete authority to collect the same.” One must note that the reference in clause (d) to the lessors’ right to the award for the land, the buildings, and improvements is limited to what they would have received, in the words of the clause, "as of the end of the term” of the lease. On the other hand, the lessee is entitled under clause (c) to the value of its "interest in leasehold”; namely, as stated earlier, the capitalized excess of market rental value over the rent reserved. The lessors are, therefore, entitled to the value of the reversion in the land, building, and improvements, and the value of their interest in the lease, which is limited to the capitalized value of the rent reserved. Thus, clauses (c) and (d), taken together, account for all the value in the property.

The difficulty, if there be difficulty, arises from a single grammatical error in clause (d). The lessors, a group of three brothers, are granted their interest "in and to the value of its leasehold”, rather than their leasehold. On this mistake, the lessors’ entire case is based. They contend that the linguistic inconsistency resulted not from a grammatical slip, but from a typographical error substituting "lessors” for "lessee”. In other words, they interpret the clause to grant to the lessors "the lessee’s interest in and to the value of its leasehold.”

As principal support for this position, plaintiffs note that nowhere else in the lease was this grammatical error repeated. This absence of repetition of error has little probative force—certainly no more than would a failure to repeat the alleged typographical error.

Aside from the lack of evidence presented, plaintiffs’ argument is intrinsically unpersuasive. First, the occasion for the grammatical error involved is easily understood. One need only think of the landlord as a single entity rather than three brothers to see how the error could have been committed. In fact, the very same grammatical error appears in the Court of Claims opinion, referring to the Castellanos’ rental loss as "its rental loss.” Second, and more important, the change suggested by plaintiffs is not in harmony with the other terms of the lease. Were plaintiffs’ contention accepted, clause (c) would award the value of the lessee’s interest in the leasehold to the lessee, and clause (d) would award that same interest to the lessor.

It is true that grammatical construction is often a "reliable signpost” in discovering the intention of the parties. But it is also true that "[a]t times the language of a contract, read as a whole * * * may disclose an intention which would be thwarted by a strict grammatical construction. We refuse to follow a signpost when it appears that it points in the wrong direction.” (Wirth & Hamid Fair Booking v Wirth, 265 NY 214, 219 [Lehman, J.].) In this case, the lessors’ grammatical argument places undue emphasis on a single phrase, rather than reading that phrase as it must be read, in the context of the writing as a whole (see Empire Props. Corp. v Manufacturers Trust Co., 288 NY 242, 248).

Thus, the trial court made no error in finding plaintiffs’ proof insufficient to support the contention of typographical error. It matters not that the court also concluded, independently, and erroneously, that it lacked power to correct such an error. That error does not affect the finding on sufficiency of proof. The trial court had a full record before it, without exclusion of any material proof proffered by plaintiffs. The proof consisted almost exclusively of opinions elicited or sought to be elicited on cross-examination of the witnesses for Yonkers and a lawyer witness for the Castellanos who gave his opinion as an expert with respect to the existing language of the condemnation clause. There is no reason to believe that a new trial would produce any additional evidence on this point. In the absence of the exclusion of other admissible evidence offered, and there was none, a pure question of law is presented which can be and should be resolved by this court.

What remains is to consider the Court of Claims’ distribution of the condemnation award in light of the lease terms. The lessors, the Castellanos, were awarded the value of their reversionary interest, together with "the present worth of its rental loss” (meaning "their” rental loss) under the lease. This is precisely the amount to which they were entitled under clause (d) of paragraph 12 of the lease, as developed above. Hence the court’s apportionment of the award was correct.

Moreover, substantial economic justice, a factor important and, arguably, determinative of the grammatical error, supports the result reached by the Court of Claims. The significant economic cause of the controversy is, of course, the large increase in the value of the property since the lease was first made in 1958. The land value of the entire Castellano parcel, before the taking, as found by the trial court, was about 2.5 million dollars. Yet, the rent reserved under the Castellano lease at the time of the taking was only $30,000 per year. Hence, the lease terms had become quite unfavorable to the Castellanos. Of course, the courts are and should be powerless to correct an intentional bargain which turns out to be unfavorable for one side, as it might have turned out for the other side.

Once the value of Yonkers’ leasehold interest is subtracted, the Castellanos’ fee interest in property subject to a 102-year lease, with 90 years of the term remaining, is not very valuable. An award for more than loss of the rent reserved under the lease and the reversion interest would significantly overcompensate the Castellanos.

In summary, the award was apportioned as the lease provides explicitly; the apportionment is in accord with the economic sense of the transaction; and there is no ambiguity in the lease requiring construction or interpretation beyond the obvious change from a singular to a plural possessive adjective. Most important, the trial revealed no proof or offer of proof by the lessors to establish their unlikely contention. The issue gave no trouble to the courts below and it is strange that it gives trouble to this court.

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

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

Judgment appealed from and order of the Appellate Division brought up for review reversed, without costs, and the case remitted to the Court of Claims for further proceedings in accordance with the opinion herein.


text:
    Mollendo Equipment Co., Inc., Appellant, v Sekisan Trading Co., Ltd., Respondent.
    Submitted January 11, 1978;
    decided February 16, 1978

      APPEARANCES OF COUNSEL

      Louis C. Jones and Nicholas M. Cherot for appellant.

      Benjamin E. Haller and John P. Love for respondent.
   OPINION OF THE COURT

Memorandum.

Order affirmed, with costs. As the pleadings and affidavits were framed, the Appellate Division was entitled to find, as it did, that New York is an inconvenient forum for this litigation. It would also have been entitled to find otherwise, especially since any forum would have been inconvenient for court and parties. But the Appellate Division has been granted considerable discretion in this area, and, on the record made by the parties, it cannot be said that the discretion was abused as a matter of law (Irrigation & Ind. Dev. Corp. v IndagS. A., 37 NY2d 522, 525).

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

Order affirmed.


text:
    Information Sciences, Inc., Appellant, v Mohawk Data Science Corp., Respondent.
    Argued January 9,1978;
    decided February 16,1978

      APPEARANCES OF COUNSEL

      Eric M. Alderman and Bernard Samuels for appellant.

      Grant E. Johnson and Earle C. Bastow for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs. Mohawk Data Sciences (Mohawk) entered into a contract with Information Sciences (Information) whereby it agreed to replace two of Information’s computers with a modern central processing unit. Information allegedly relied on a representation by Mohawk that certain existing parts would be compatible with the new unit and when the conversion process encountered difficulties, Information returned the Mohawk components without payment. The present dispute then arose.

The contract contained the following arbitration clause: "The parties hereto agree that any controversy or claim arising out of this Agreement, other than default in the payment of any charges due hereunder, or any dispute arising out of the interpretation or application of this Agreement, which the parties hereto are unable to resolve, shall be settled by arbitration in Utica, New York, with the American Arbitration Association”. Mohawk served a demand for arbitration asserting that there was an unjustified cancellation of the contract and a failure to comply with the contract terms, including certain payment provisions. Information instituted this proceeding to stay arbitration alleging that the dispute was not covered by the arbitration clause and that the clause itself was invalid because the entire contract was induced by fraud.

The agreement to arbitrate covered "any controversy or claim arising out of this Agreement * * * or any dispute arising out of the interpretation or application of this Agreement”. The clause also included an exclusion for matters involving "default in the payment of any charges due hereunder”. This exclusion does not encompass every claim or dispute which is evidenced by failure to make payment, else the exclusion would engulf the agreement to arbitrate, leaving it without meaning. This exclusion must be deemed to refer only to collection matters which arise after all the terms of the contract have been filled except payment. Read in this light, as indeed it must be, the demand for arbitration clearly presents a claim covered by the arbitration agreement.

This court has held that where the parties have agreed to a broad arbitration clause, the issue of fraud in the inducement is one for the arbitrator (Matter of Weinrott [Carp], 32 NY2d 190). Where the parties have agreed generally to submit to arbitration all disputes arising out of the contract or any dispute relating to the meaning and interpretation of the underlying agreement, they have adopted a broad arbitration clause (Nationwide Gen. Ins. Co. v Investors Ins. Co. of Amer., 37 NY2d 91, 95). As noted above, the exclusion clause must be read as bearing only on collection questions and, as such, it has at best a de minimus impact as a limitation on the agreement. The exclusion has effect only after performance of all the basic terms of the contract except payment, for only then is the matter purely one involving default in payment. Thus, the exclusion applies only to default in payment for reasons other than nonperformance of the sales and service contract provisions, at which point there would be little reason to use arbitration as a collection procedure. Given the limited applicability of this exclusion, the language of the agreement to arbitrate is otherwise unrestrictive and thus sufficiently broad so as to permit the application of the general principles governing the submission of disputes under such "broad” arbitration clauses (Matter of Macy & Co. [National Sleep Prods.] 39 NY2d 268, 271); and, accordingly, the issue of fraud in the inducement is for the arbitrator.

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

Order affirmed.


text:
    Shirley Polykoff Advertising, Inc., Respondent, v Houbigant, Inc., Appellant.
    Argued January 10, 1978;
    decided February 16, 1978
    APPEARANCES OF COUNSEL

      Ronald J. Offenkrantz and Kenneth Gliedman for appellant.

      Peter M. Messer and Frederick E. Winkler for respondent.
   OPINION OF THE COURT

Memorandum.

The order appealed from should be reversed, defendant’s cross motion granted, summary judgment entered in favor of defendant, and the certified question answered in the negative. The issue presented on this appeal is whether the alleged oral contract is within the Statute of Frauds in that "[b]y its terms [it] is not to be performed within one year from the making thereof’ (General Obligations Law, § 5-701, subd a, par 1). We hold that it is.

Plaintiff designed an advertisement for defendant, and has been paid some $42,500. In addition, plaintiff alleges an "understanding” that defendant would pay plaintiff $5,000 a year for every year in which defendant uses the advertisement. Since this alleged oral agreement is not evidenced by any writings, it is void if it comes within the Statute of Frauds.

This contract is not one which by its terms can be performed within a year. If it were, it would be without the statute even if, as a practical matter, it were well nigh impossible of performance within a year (see Freedman v Chemical Constr. Co., 43 NY2d 260). Nor is it a contract involving alternative performances, one of which is fully performable within a year (see Coinmach Inds. Corp. v Domnitch, 37 NY2d 889). Finally, this agreement is not similar to that discussed in North Shore Bottling Co. v Schmidt & Sons (22 NY2d 171), for the court found the contract involved in that case to be susceptible of termination by the defendant within a year without breach of the contract. In this case, defendant has allegedly promised plaintiff, as a part of the consideration for designing the advertisement, that defendant will pay plaintiff an additional fee for every year in which the advertisement is used. Defendant is not obliged to use the advertisement, and can incur no liability for not using it. Defendant’s failure to use the advertisement for any period of time, however long, does not, of course, terminate the contract. Clearly, defendant could not have terminated his contractual obligations by simply waiting a year before using it. Similarly, defendant could not terminate the contract by temporarily suspending use of the advertisement for a year. In fact, it would appear that there is no way in which defendant could unilaterally terminate the contract. Thus, the contract cannot by its own terms be performed within a year, and is within the Statute of Frauds.

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

Order reversed, with costs, and defendant’s cross motion for summary judgment granted in a memorandum. Question certified answered in the negative.


author: Jasen, J. (dissenting).

text:
    Frank L. Canino, as Commissioner of Finance of the City of Syracuse, Appellant, v Ahleen Engelstein, as Executrix of David Engelstein, Deceased, Respondent.
    Argued January 12, 1978;
    decided February 16, 1978

      APPEARANCES OF COUNSEL

      David M. Garber, Corporation Counsel (James L. Gelormini of counsel), for appellant.

      Donald J. Ball for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division is affirmed, with costs. In City of Buffalo v Cargill, Inc. (44 NY2d 7 [decided herewith]), this court reaffirmed our holding in Matter of Ueck (286 NY 1) that when a taxing district acquires its own tax sale certificate following a sale held pursuant to statute, the personal liability of the taxpayer has been extinguished. The Syracuse Tax Act (L 1906, ch 75, as amd) is practically indistinguishable from the statutes considered in the above cases. Under the Syracuse Tax Act, when taxes remain unpaid, the treasurer will "advertise and sell such real estate * * * for the payment of such taxes” (§ 21) and the notice of sale shall state that the real estate will be sold "to pay the taxes” (§ 22). The purchaser must pay the amount of his bid which must equal the amount of unpaid taxes and charges (§§ 22, 23) and the tax certificate issued after sale shall state that the property "was sold for unpaid city taxes” (§ 23). Under these provisions there can be no doubt that the purchase of the tax sale certificate evidences payment of the taxes as a matter of law and extinguishes the personal liability of the taxpayer, while the holder of the certificate obtains all the rights which attach thereto (City of Buffalo v Cargill, Inc., supra).

Jasen, J. (dissenting).

I would reverse the order of the Appellate Division and grant summary judgment in favor of the City of Syracuse.

The facts are not in dispute. Defendant owned real property in the City of Syracuse. During the years 1971-1974, although defendant retained possession, control and title to this property, he failed to pay the assessed real property taxes. In accordance with the Syracuse Tax Act (L 1906, ch 75, as amd), the city conducted a tax sale. As required by the act, the premises were bid in by the commissioner of finance on behalf of the city for the amount of the unpaid taxes, fees and expenses. Tax sale certificates were then issued to the city.

At the expiration of the prescribed period of redemption of the certificates, defendant had neither paid the delinquent taxes nor redeemed the certificates. Rather than taking a deed to the property or foreclosing its tax lien, the city commenced this action to enforce defendant’s personal liability for the delinquent taxes. Relying on our decision in Matter of Ueck (286 NY 1), Special Term dismissed the city’s complaint. The Appellate Division affirmed.

I believe that Ueck was wrongly decided and should be overruled. (See City of Buffalo v Cargill, Inc. 44 NY2d 7 — [dissenting opn, Jasen, J.] [decided herewith].) I would also add, however, that, in my view, the Syracuse Tax Act may be distinguished from the tax statutes considered by this court in Ueck.

In reaching the conclusion that the Syracuse Tax Act is indistinguishable from the tax statutes considered by this court in Ueck, the majority fails to recognize a significant difference between these statutes. In contrast to the Erie County Real Property Tax Law and the Buffalo City Charter before the court in Ueck, the Syracuse Tax Act provides, inter alia, that where a tax sale certificate is not redeemed, the commissioner of finance "shall institute proceedings in the name of the city of Syracuse to foreclose the lien of said taxes upon said real estate”. (§ 22 [emphasis added].) The act further provides for a procedure to foreclose a tax lien and with respect to the passage of title states: "A conveyance upon a sale made pursuant to a final judgment in an action to foreclose the lien of a tax vests in the purchaser all the right, title and interest and equity of redemption in and to said premises so sold”. (§ 44.)

This language, I believe, clearly demonstrates that the city does not acquire title at a tax sale, but only obtains a lien interest. Conveyance of title to the property awaits expiration of the redemption period and the foreclosure of the lien. Consequently, I would hold that the purchase of tax sale certificates by the City of Syracuse did not extinguish the delinquent taxpayer’s personal liability.

Chief Judge Breitel and Judges Gabrielli, Jones and Wachtler concur in memorandum; Judge Jasen dissents and votes to reverse in a separate opinion in which Judge Cooke concurs; Judge Fuchsberg taking no part.

Order affirmed.


text:
    In the Matter of Lyndon Gibson, Appellant, v Board of Education of the Norwood-Norfolk Central School, Respondent.
    Submitted January 23, 1978;
    decided February 16, 1978
   Motion to dismiss the appeal herein denied (see Matter of Equity Props. Corp. v Joy, 38 NY2d 766).


author: Per Curiam.

text:
    Holly S. Clarendon Trust, Respondent, v State Tax Commission, Appellant.
    Argued January 13, 1978;
    decided February 22, 1978

      APPEARANCES OF COUNSEL

      Louis J. Lefkowitz, Attorney-General (Francis V Dow and Ruth Kessler Toch of counsel), for appellant.

      Eugene Parrs for respondent.
   OPINION OF THE COURT

Per Curiam.

Judgment affirmed, with costs. Facile categorization of taxable transactions as "voluntary” or "involuntary” does not progress the analysis. Even property taxes and income taxes involve voluntary acts—the decision to own property or to earn, rather than to forego, income.

Retroactivity provisions in tax statutes, if for a short period, are generally valid, but the constitutional analysis must involve a balancing of equities. Arbitrariness in a tax statute, it has been held, deprives taxpayers of property without due process of law (People ex rel. Best & Co. v Graves, 265 NY 431, 436). Although a close question is presented, the apparent absence of a persuasive reason for retroactivity, with its potentially harsh effects, offends constitutional limits, especially when the tax imposed is one which might exert significant influence on personal or business transactions (cf. Welch v Henry, 305 US 134, 147, and cases cited, reh den 305 US 675; People ex rel. Best & Co. v Graves, 265 NY 431, 436, supra). Also somewhat influential, but hardly determinative, is the lapse of an entire legislative session before the apparent "error” was corrected (cf. Welch v Henry, 305 US 134, 150-151, supra).

Reference (inaccurately) to the new, higher, tax rate in the instruction booklet for the 1972 fiduciary income tax return does not help the Tax Commission. At best, the instructions provided potential taxpayers with notice to look to the statutes, which imposed no increase. The legislative error, if that it was, could be corrected only by further legislation, not by self-serving publication in an instruction booklet.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur in Per Curiam opinion.

Judgment affirmed.


text:
    Laura Donigi, Appellant, v American Cyanamid Company, Respondent.
    Argued January 12, 1978;
    decided February 22, 1978

      APPEARANCES OF COUNSEL

      Augustin J. San Filippo and Steven Jon Levine for appellant.

      Joseph M. Costello for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs to respondent. Although the order of the Appellate Division is appealable, it is not reviewable. Appellant raises only a question of fact as to the weight of the evidence. Since no question of law is presented, the order of the Appellate Division lies beyond our power of review. (Pfohl v Wipperman, 34 NY2d 597; Armstrong v Campbell, 30 NY2d 704; Indiere v Strickroth, 28 NY2d 513; see Cohen and Karger, Powers of the New York Court of Appeals [rev ed], § 148, p 588.)

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

Order affirmed.


text:
    Anthony Randazzo, Plaintiff, v Thomas Cunningham et al., Appellants, and Ohio Fast Freight, Inc., Respondent.
    Argued January 13, 1978;
    decided February 22, 1978

      APPEARANCES OF COUNSEL

      Victor A. Rossetti, Arthur A. Herdzik and Raymond T. Miles for appellants.

      Gerald Bouvier for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (56 AD2d 702).

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


text:
    Greatex Realty Company, Respondent, v Foodmaker Inc., Appellant.
    Argued January 13, 1978;
    decided February 22, 1978

      APPEARANCES OF COUNSEL

      John P. Bracken for appellant.

      Samuel Sumner Goldberg for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (56 AD2d 775).

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


text:
    Cathedral Academy, Appellant, v State of New York, Respondent.
    (Claim No. 56557.)
    Submitted February 9, 1978;
    decided February 22, 1978
   OPINION OF THE COURT

On reargument: Order affirmed, with costs (State of New York v Cathedral Academy, 434 US 125, 96 S Ct 340, Dec. 6, 1977).

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


text:
    Regina Gibbons, Appellant, v Harris W. Hantman et al., Defendants, and Morris Appelman, Respondent.
    Submitted January 13, 1978;
    decided February 22, 1978

      APPEARANCES OF COUNSEL

      Robert A. Forte for appellant.

      Robert Devine, Stephen W. O’Leary and Stephen W. O’Leary, Jr., for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Mr. Justice Frank D. O’Connor at the Appellate Division (58 AD2d 108).

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


text:
    The People of the State of New York, Respondent, v John J. Ranellucci, Appellant.
    Argued January 13, 1978;
    decided February 22, 1978

      APPEARANCES OF COUNSEL

      Frank H. Penski for appellant.

      Sol Greenberg, District Attorney (George H. Barber of counsel), for respondent.
   OPINION OF THE COURT

Order reversed and the indictment dismissed on the dissenting opinions by Mr. Justice T. Paul Kane and Mr. Justice J. Clarence Herlihy at the Appellate Division (53 AD2d, at pp 385-386, 386-391).

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


text:
    The People of the State of New York, Respondent, v Leo Moulton, Appellant.
    Submitted January 9, 1978;
    decided February 22, 1978

      APPEARANCES OF COUNSEL

      Robert S. Katz and William E. Hellerstein for appellant.

      Eugene Gold, District Attorney (Cynthia Kean of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order should be affirmed.

The role of a Trial Judge in a criminal case is not merely that of an observer or even that of a referee enforcing the rules of a game (see People v De Jesus, 42 NY2d 519, 523). In fulfillment of its broader obligation to ensure the defendant a fair and impartial trial (People v Crimmins, 36 NY2d 230, 238), a court is not without power, to be exercised with judicious restraint, to keep the proceedings within the reasonable confines of the issues and to encourage clarity rather than obscurity in the development of proof (see People v Knapper, 230 App Div 487, 489-490; People v Perrin, 224 App Div 546, 550, affd 251 NY 509).

For these purposes, the court may put appropriate questions to witnesses and, of course, make such rulings, evidentiary and otherwise, as the proper conduct of the case and the range of discretion entrusted to it for that purpose require. But it goes without saying that these functions must not be carried out in language and in a manner from which a jury will gain the impression of existence of an opinion on the part of the court as to the credibility of the" testimony of any witness or the merits of any issue in the case (People v Carter, 40 NY2d 933, 934; People v Budd, 38 NY2d 988; People v Mendes, 3 NY2d 120; People v Ohanian, 245 NY 227). Among other things relevant to the questions raised on the appeal before us, the court also must scrupulously avoid denigrating counsel and thereby undermining a party’s right to his or her effective assistance (People v De Jesus, supra, p 524).

In the present case, it is clear that the Trial Judge did not fully measure up to these ideals and, regrettably, we cannot say that the concern expressed by the dissenters at the Appellate Division was without foundation. Our review of the record as a whole convinces us, however, that despite the trial court’s departures, including a penchant for sometimes intrusive, though most often innocuous remarks that would better have been left unsaid, the jury was not prevented from arriving at an impartial judgment on the merits (People v Gonzalez, 38 NY2d 208, 210; cf. People v Rodriguez, 38 NY2d 95, 102).

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

Order affirmed.


text:
    Herbert G. Martin, Inc., Respondent, v City of Yonkers et al., Defendants and Third-Party Plaintiffs-Appellants. Stewart M. Muller Construction Company, Inc., Third-Party Defendant-Respondent. Michael Harmonay Corp., Respondent, v City of Yonkers et al., Defendants and Third-Party Plaintiffs-Appellants. Stewart M. Muller Construction Company, Inc., Third-Party Defendant-Respondent.
    Argued January 4, 1978;
    decided February 22, 1978
   Appeals dismissed, without costs, upon the ground that the stipulation for judgment absolute is illusory (see Goldberg v Elkom Co., 36 NY2d 914).


text:
    Lucy G. Childs, Respondent, v Theodore Q. Childs, Appellant.
    Submitted January 30, 1978;
    decided February 22, 1978
   Motion to dismiss the appeal herein granted and the appeal dismissed, with costs and $20 costs of motion, upon the grounds that the appellant is not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]), and that no substantial constitutional question is directly involved.


text:
    County of Erie, Respondent, v James A. Bourne et al., Appellants, and Buffalo Savings Bank, Respondent.
    Decided February 22, 1978
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution and upon the further ground that the order appealed from involves the exercise of discretion of the type not reviewable by the Court of Appeals.


text:
    Joseph Lanzi, Appellant, v Arthur Brooks, Respondent.
    Submitted February 13, 1978;
    decided February 22, 1978
   Return of remittitur requested and, when returned, it will be amended by adding thereto the following: "This determination is without prejudice to an application by appellant to Supreme Court for leave to serve an amended complaint, such application to include a copy of the proposed amended complaint accompanied by a disclosure of the evidentiary facts which would support the claim set forth in the proposed amended complaint and would justify the granting of such leave (cf. CPLR 3211, subd [d]).” [See 43 NY2d 778.]


text:
    In the Matter of Charles J. Hynes, as Deputy Attorney-General of the State of New York, Respondent, v Charles E. Sigety, Doing Business as Florence Nightingale Nursing Home, Appellant.
    Decided February 22, 1978
   Appeal dismissed, without costs, by the Court of Appeals sua sponte upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution. Any motion by appellant for leave to appeal pursuant to CPLR 5514 (subd [a]) "shall be made on or before March 9, 1978.


text:
    In the Matter of the Trust of Elmer B. Tyrrel, as Grantor. B. Harold Tyrrel, Appellant-Respondent; Manufacturers Hanover Trust Company, as Successor Trustee, Respondent-Appellant.
    Submitted January 16, 1978;
    decided February 22, 1978
   On the court’s own motion, appeal taken as of right by Manufacturers Hanover Trust Company, dismissed, without costs, upon the ground that the modification at the Appellate Division is not in a "respect, which is within the power of the court of appeals to review” (CPLR 5601, subd [a], par [iiy).


text:
    Sylvia A. Stryker, Respondent, v Richard A. Stryker, Appellant.
    Submitted January 3, 1978;
    decided February 22, 1978
   Motion, insofar as it seeks leave to appeal from the November 16, 1977 order of the Appellate Division which denied defendant’s motion for reargument or for leave to appeal to the Court of Appeals, 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 upon the further ground that it involves the exercise of discretion of a type not reviewable by the Court of Appeals.


text:
    Carl A. Morse, Inc., Respondent, v Rentar Industrial Development Corp. et al., Appellants, et al., Defendants.
    Argued February 6, 1978;
    decided March 21, 1978

      APPEARANCES OF COUNSEL

      Edward L. Sadowsky, Richard Kaye and Mona D. Shapiro for appellants.

      John G. McGarrahan, C. Stephen Heard, Jr., Peter J. Kiernan, Mitchell A. Gilbert and Burt Neuborne for respondent.

      Louis J. Lefkowitz, Attorney-General (A. Seth Greenwald and Samuel A. Hirshowitz of counsel), in his statutory capacity under section 71 of the Executive Law.
   OPINION OF THE COURT

Order affirmed, with costs, on the opinion by then Presiding Justice Frank A. Guxotta. In addition, it is observed that the dissenting opinion at the Appellate Division confuses the impact of a lien on property which does not disposses the owner with the line of cases in the Supreme Court of the United States involving precisely such dispossession by seizure without preliminary judicial determination. Question certified anWered in the affirmative.

Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Cooke. Judge Fuchsberg dissents and votes to reverse in the following memorandum: For the reasons set forth in the dissenting opinion of Mr. Justice J. Irwin Shapiro at the Appellate Division, I believe that New York State’s mechanic’s lien law (Lien Law, §3 et seq.), in the form in which it presently seeks to protect lienors unnecessarily and unconstitutionally deprives lienees of valuable property rights without due process of law. I would, therefore, vote to reverse and grant the motion for partial summary judgment.


text:
    In the Matter of City of Albany et al., Appellants, v Public Employment Relations Board, Respondent, and Council 66, American Federation of State, County and Municipal Employees, AFL-CIO, et al., Intervenors-Respondents.
    Argued February 7, 1978;
    decided March 21, 1978

      APPEARANCES OF COUNSEL

      John E. Roe, Corporation Counsel (Vincent J. McArdle, Jr., of counsel), for appellants. Jules L. Smith and Bernard T. King for intervenors-respondents.

      Anthony Cagliostro and Martin L. Barr for respondent.
   OPINION OF THE COURT

Judgment affirmed, with costs, on the opinion by Mr. Justice Robert G. Main at the Appellate Division (57 AD2d 374).

Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg. Taking no part: Judge Cooke.


text:
    Grid Realty Corp. et al., Appellants, v Morris Winokur et al., Doing Business as New Island Investors, Respondents, et al., Defendants.
    Submitted February 8, 1978;
    decided March 21, 1978

      APPEARANCES OF COUNSEL

      Joseph D. Stim for appellants.

      Harold Freund for respondents.
   OPINION OF THE COURT

Memorandum.

Order modified to reinstate the second cause of action, and otherwise affirmed, without costs.

On the first cause of action, the only issue that need be resolved is whether the notice of pendency was constructive notice to Travitsky of the mortgage foreclosure action. Angelo Sardo was properly made a party defendant in the foreclosure action, and the purchase of Sardo’s fee interest at the Sheriffs sale, which occurred after the filing of the notice of pendency, charged Travitsky with constructive notice of the foreclosure action, and he became bound by the foreclosure action to the same extent as if he had been made a party (CPLR 6501). Hence, so long as the foreclosure sale was properly conducted it extinguished Travitsky’s rights in the property.

It cannot be said, however, on a motion directed to the sufficiency of the complaint, that plaintiffs second cause of action must fall, at least to the extent that it alleges a conspiratorial postponement of the foreclosure sale. The largely general allegations of conspiracy to discourage bidders by postponing the foreclosure sale would not withstand summary judgment unless evidentiary support is advanced, but, again, for purposes of a motion to dismiss based on insufficiency as a pleading, they do state a cause of action.

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

Order modified, without costs, in accordance with the memorandum herein and, as so modified, affirmed.


text:
    State Division of Human Rights, Appellant, v City of Syracuse et al., Respondents.
    Argued February 9, 1978;
    decided March 21, 1978

      APPEARANCES OF COUNSEL

      James I. Meyerson and Nathaniel R. Jones for appellant.

      David M. Garber, Corporation Counsel (James L. Gelormini and Thomas M. Carnrike of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, on the opinion by Mr. Justice Richard D. Simons at the Appellate Division (57 AD2d 452).

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


text:
    Monroe R. Davis, on Behalf of Himself and All Others Similarly Situated, et al., Respondents, v Sullivan County Democratic Committee et al., Appellants.
    Argued February 8, 1978;
    decided March 21, 1978

      APPEARANCES OF COUNSEL

      George H. Rosen for appellants.

      Stephen L. Oppenheim and Monroe R. Davis, respondents pro se.

   OPINION OF THE COURT

Memorandum.

Order affirmed, without costs. Internal affairs of political parties may be regulated by the State. They are not private associations, but associations with public and quasi-official status performing a governmental, or at least quasi-governmental, function in the electoral process. Moreover, most of the internal activities of the political party are relevant to the role it performs in nominating and electing candidates.

In order to implement the "one-man one-vote” principle, the Legislature could have used either the number of enrolled members or the gubernatorial vote to measure the effective influence which committeemen should have. In choosing the gubernatorial vote, the Legislature was free to go beyond Federal constitutional principles as elaborated by the Supreme Court.

Defendants argue unpersuasively that section 12 of the Election Law permits non-Democrats to interfere in the internal affairs of the party. Only Democrats are eligible to be committeemen, and only Democrats are entitled to vote for them. Section 12 simply determines the weighted vote the committeemen should have. That weighted vote, the Legislature has determined, is measured not by the number of enrolled members, but by the effectiveness of the party in running up the Democratic vote for Governor in the district.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur in memorandum; Judge Cooke taking no part.

Order affirmed.


text:
    Dorothy C. Cimino, as Administratrix of the Estate of Jacquino Cimino, Deceased, Appellant, v City of New York, Respondent, et al., Defendant. (And Third-Party and Fourth-Party Actions.)
    Submitted February 6, 1978;
    decided March 21, 1978

      APPEARANCES OF COUNSEL

      Robert A. Ross and Charles Tauber for appellant.

      William F. Larkin and Peter M. Pryor for Joseph Cory Delivery Services, Inc., third-party and fourth-party defendant-respondent.
   OPINION OF THE COURT

Order affirmed, with costs to respondent filing brief, on the memorandum at the Appellate Division (54 AD2d 843) for all the reasons relevant to the issues on this appeal.

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


text:
    Anne Manos, Plaintiff, v James Manos, Appellant. Grid Realty Corp. et al., Respondents.
    Submitted February 8, 1978;
    decided March 21, 1978

      APPEARANCES OF COUNSEL

      Meyer Scheps for appellant.

      Joseph D. Stim for Grid Realty Corp., respondent.

      William Gitelman, County Attorney (Natale C. Tedone of counsel), for Michael P. Seniuk, Sheriff of Nassau County, respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (57 AD2d 548).

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


author: Chief Judge Breitel (dissenting).

text:
    Jack Sobel, as the Sole Surviving General Partner of Great River Country Club Associates, Respondent-Appellant, v John Bess et al., Appellants-Respondents.
    Argued February 9, 1978;
    decided March 21, 1978

      APPEARANCES OF COUNSEL

      John M. Delehanty, Jack C. Auspitz and Barrington D. Parker\ Jr., for appellants-respondents.

      Jacob Oliner for respondent-appellant.
   OPINION OF THE COURT

Memorandum.

On the first appeal, the Appellate Division concluded that the settlement agreement reached by the parties was equivocal in its written form and referred the case to Mr. Justice David L. Glickman for clarification (43 AD2d 733). Judge Glickman, before whom the original stipulation of settlement had been made, after receiving extensive testimony interpreted the settlement agreement in a carefully considered opinion. Our examination of the record discloses substantial evidence to support his interpretation. We find insufficient warrant in law for the subsequent excision and reversal by the Appellate Division. If its decision be perceived as a factual determination we are persuaded that the decision of Mr. Justice Glickman more nearly conforms to the weight of the evidence in this case (Schine v Schine, 31 NY2d 113; Matter of City of New York [Boston-Secor Houses—Rusciano], 25 NY2d 430, 432).

Accordingly, on defendants’ appeal, judgment appealed from and Appellate Division order thereby brought up for review, reversed, with costs to defendants, and the order of Supreme Court, Suffolk County, dated October 8, 1974 reinstated. On plaintiffs cross appeal order, insofar as appealed from, affirmed; question certified, insofar as applicable to plaintiffs appeal, answered in the affirmative.

Chief Judge Breitel (dissenting).

The stipulation of settlement, which in law constituted an enforceable contract, provided, in relevant part: “John M. Bess is the beneficial owner of the common stock of Timber Point Country Club, which stock shall be transferred to John M. Bess as receiver and trustee of Great River Country Club Associates by the present recorded owners of said stock.” Given the history of this protracted litigation, none of the trial testimony is entitled to be accorded much credibility, even assuming, dubiously, that the disputed provision in the stipulation warranted explanation by parol evidence.

The stipulation was drafted by lawyers, and it must be assumed that the lawyers used words of art as they are understood in common legal usage. The agreement provided for transfer to Bess “as receiver and trustee”. Had the drafters intended that Great River’s interest in the stock be terminated upon payment by Bess of whatever was owed as a result of the accounting, they could easily have so provided. They did not. Despite the unsatisfactory and contradictory explanations as to why an escrow was not used, an escrow would not necessarily have impaired Bess’ freedom to use the stock for permissible purposes. An escrow can be conditioned, and conditioned escrows are exceedingly common.

Moreover, the provision suffers from no inconsistency requiring excision or rejection of any words or clauses. Instead, the clause relied upon by defendants—"John M. Bess is the beneficial owner of the common stock of Timber Point Country Club”—obviously was intended only to distinguish Bess’ interest from the record ownership of the stock by Bess’ son and his friend.

Accordingly, I dissent and vote to affirm.

Judges Jasen, Gabrielli, Jones and Wachtler concur in memorandum; Chief Judge Breitel dissents and votes to affirm on both appeals in a separate opinion in which Judges Fuchsberg and Cooke concur.

On defendants’ appeal: Judgment appealed from and order of the Appellate Division brought up for review reversed, with costs to defendants, and the order of Supreme Court, Suffolk County, dated October 8, 1974 reinstated.

On plaintiff’s cross appeal: Order, insofar as appealed from, affirmed, with costs. Question certified, insofar as applicable to plaintiff’s appeal, answered in the affirmative.


text:
    PPX Enterprises, Inc., Appellant, v Scepter Records, Inc., Respondent.
    Submitted February 9, 1978;
    decided March 21, 1978

      APPEARANCES OF COUNSEL

      Sherman P. Rothman for appellant.

      Robert K. Ruskin and Jeffrey L. Liddle for respondent.
   OPINION OF THE COURT

Memorandum.

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

After obtaining an original order for attachment in the amount of $30,000, the validity of which was upheld by the Appellate Division (48 AD2d 1017), plaintiff obtained a supplemental order of attachment in an additional amount of $56,-000. On a motion to vacate or to modify the second attachment, vacatur was denied but the issue of "whether or not the amount prescribed by the supplemental attachment is excessive” was referred to a referee to hear and report with recommendations. Following five days of hearings which consisted of testimony by certified public accountants for both parties and by plaintiff’s president and produced over 800 pages of transcript and 43 exhibits, the referee reported in a summary description of the accounts between the parties that "as of March 31, 1975 [the day before issuance of the second attachment], the maximum amount of the claim of PPX for attachment purposes proven before me is $17,638.” On that basis he recommended that the supplemental order of attachment be vacated. Supreme Court granted defendant’s motion to confirm the report of the referee, vacated the supplemental order of attachment and also reduced the amount of the original attachment from $30,000 to $17,638. The Appellate Division modified by deleting the reduction of the first attachment on the ground that the validity and amount of that attachment had not been before Supreme Court or the referee, and otherwise affirmed.

On the appeal to us, plaintiff does not challenge the details, analysis or computation of the accounting reported by the referee. Rather plaintiff asserts that the reference should have been limited to inquiry and report as to the "good faith” of plaintiff’s claim and that it was therefore error on the part of the referee to give a nonbinding advisory opinion on the merits of the controversy without opportunity for pretrial discovery and production of witnesses.

The record fails to disclose any objection by plaintiff to the generality of the reference to the referee, any application to the court or to the referee to make the terms of the reference more specific, or any attempt prior to receipt of the report of the referee to limit the scope of the reference as it is now contended should have been done. In these circumstances we conclude that the contention of error, if any, presently advanced has not been preserved for appellate review.

Chief Judge Breitel (dissenting).

I dissent and vote to reverse and reinstate the supplemental attachment.

Concededly, the reference to the Special Referee was solely to determine whether the supplemental attachment was excessive. Possible constitutional strictures derivable by implication from Carey v Sugar (425 US 73) were not, and are not, applicable to this case, because of Special Term’s determination in the order of reference that, pursuant to the agreements, trust funds were involved. Indeed, the referee in his report stated that he was bound by the holding that trust funds held for the benefit of plaintiff were involved provided they had been received.

The underlying claims involve running accounts, not only between plaintiff and defendant, but between defendant and its overseas licensees. What was owed and what was received were sharply disputed, as disputed as are the briefs submitted on this appeal. It may even be agreed that, as to many of the items, plaintiff, credibility aside, failed to establish by a preponderance of the evidence that it would succeed. On the other hand, as to such disputed issues, and particularly as to those claims where the referee juxtaposed the contradictions between plaintiff’s former principal, Chalpin, and defendant’s principal, Goff, it cannot be said that in the action yet to be tried plaintiff must fail (see Regnell v Page, 82 Misc 2d 506, 510-511 [Fein, J.], decided after the holding Sugar v Curtis Circulation Co., 383 F Supp 643; see, generally, 7A Weinstein-Korn-Miller, NY Civ Prac, par 6223.01 et seq., discussing New York’s attachment statutes in the light of the cloud cast on them by Sugar v Curtis Circulation Co., supra, and Carey v Sugar, supra, especially pars 6223.01, 6223.05, 6223.09).

The point is, as appellant has argued apparently in vain, that the reference was not to determine the case on the merits but, in effect, only to determine whether the attachment was excessive in amount, or, as appellant states it, perhaps mistakenly, whether the attachment was in "good faith”. In so determining, the referee and the courts below should have been sensitive to the preliminary nature of this determination under CPLR 6223; the action had not progressed; there had been no discovery; and complicated interdependent running accounts were involved as to many or most of which plaintiff would be without knowledge of the facts until they had been further explored. An attachment will be of limited use as a provisional remedy if an attaching creditor must, on motion to vacate the attachment, summarily establish his case as if it had been fully tried and determined. That trial and determination was not the referee’s function. He was only to determine whether the supplementary attachment was excessive because the support for it was baseless and plaintiff’s claim must inevitably have failed. Instead, the referee granted the equivalent of summary judgment in a case where there were disputed issues of fact and no pretrial discovery.

It is true that on this appeal plaintiff has argued that the reference was to determine its "good faith” in obtaining the supplemental attachment. That misuse of words of art, of course, is an unfortunate characterization of the reference to determine excessiveness. In fact, however, an intentionally excessive attachment is one taken in "bad faith”. Plaintiff’s linguistic imprecision, if that it be, should not becloud the real issue.

Accordingly, I dissent and vote to reverse and reinstate the supplemental attachment.

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

Order affirmed, with costs, in a memorandum. Question certified answered in the affirmative.


text:
    In the Matter of Margo J. Simpson, Respondent, and Margaret A. Skeels et al., Appellants, v North Collins Central School District, Respondents.
    Argued February 6, 1978;
    decided March 21, 1978
    APPEARANCES OF COUNSEL

      Richard E. Casagrande and Bernard F. Ashe for appellants.

      Robert B. Conklin and Robert P. Martin for respondent.
   OPINION OF THE COURT

Order affirmed, with costs (Matter of Cohoes City School Dist, 40 NY2d 774; Matter of Candor Cent. School Dist. [Candor Teachers Assn.], 42 NY2d 266).

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


text:
    St. Paul Fire and Marine Insurance Company, Respondent, v United States Fidelity and Guaranty Company, Appellant.
    Argued February 7, 1978;
    decided March 21, 1978

      APPEARANCES OF COUNSEL

      Edward L. Milde, John J. Stewart and John J. Stewart, Jr., for appellant.

      William F. Larkin for respondent.
   OPINION OF THE COURT

Memorandum.

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

Although an insurance company in exclusive control of its insureds’ defense cannot be compelled to concede liability and settle a questionable claim before proof has been developed on all sides (e.g., Knoblock v Royal Globe Ins. Co., 38 NY2d 471), the defendant in this case refused to settle a claim in excess of its policy limits after liability had already been determined solely on factual issues by a jury (see Di Tomasso v Brookhattan Utilities, 40 AD2d 989, mot for lv to app den 32 NY2d 609). Under these circumstances, with liability having been established at trial, the excess carrier alone was placed at further risk due to the defendant’s intractable opposition to any settlement of the claim.

Given a record which adequately supports these affirmed findings, amounting to a breach of the defendant’s implied obligation to manage its insureds’ defense in good faith (see, e.g., Gordon v Nationwide Mut. Ins. Co., 30 NY2d 427, cert den 410 US 931; cf. Insurance Law, § 40-d, added by L 1970, ch 296, § 1), the imposition of liability for the excess judgment borne by the plaintiff was appropriate (see Kulak v Nationwide Mut. Ins. Co., 40 NY2d 140; Decker v Amalgamated Mut. Cas. Ins. Co., 35 NY2d 950).

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

Order affirmed.


text:
    Village of Brockport, Appellant, v County of Monroe Pure Waters Division et al., Respondents.
    Argued February 8, 1978;
    decided March 21, 1978

      APPEARANCES OF COUNSEL

      Samuel F. Prato and Frank A. Aloi for appellant.

      William J. Stevens, County Attorney (William D. Sheldon, III, and Sergeant W. Wise of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, without costs, on the opinion by Mr. Justice Richard J. Cardamone at the Appellate Division (58 AD2d 216).

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


text:
    In the Matter of Ralph R. Harper, Appellant, v Zoning Board of Appeals of the Town of Lima et al., Respondents.
    Argued February 6, 1978;
    decided March 21, 1978

      APPEARANCES OF COUNSEL

      Robert J. Stanton for appellant.

      Benjamin P. Whitaker, Jr., for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Mr. Justice Richard D. Simons at the Appellate Division (55 AD2d 405) which are relevant to the issues presented on this appeal.

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


text:
    Frederick Margolin, Appellant, v Lawrence Friedman, Defendant, and 670 Coney Island Avenue, Inc., et al., Respondents.
    Argued February 9, 1978;
    decided March 21, 1978

      APPEARANCES OF COUNSEL

      Thomas Moore and Norman E. Frowley for appellant.

      Robert H. Tell and Solomon M. Cheser for Crown Car Wash, Inc., respondent.

      Douglas A. Boeckmann for 670 Coney Island Avenue, Inc., respondent.
   OPINION OF THE COURT

Memorandum.

This accident occurred when an automobile driven by a patron of the car wash went out of control. The only basis for liability against defendants, one which constructed and the other which operated the car wash, are the allegations that the premises were improperly designed and maintained, and that there was an absence of a warning sign. The courts have rejected attempts by plaintiffs in similar circumstances to show a causal connection between the design or maintenance of the premises and negligent operation of a vehicle (see, e.g., Weber v City of New York, 24 AD2d 618, affd 17 NY2d 790; Tauraso v Texas Co., 275 App Div 856, affd 300 NY 567; cf. Pulka v Edelman, 40 NY2d 781). In essence, the accident happened as a result of the driver’s failure to control his vehicle. The premises "merely furnished the condition or occasion for the occurrence of the event rather than one of its causes” (Sheehan v City of New York, 40 NY2d 496, 503; see Rivera v City of New York, 11 NY2d 856).

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

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Cooke concur in memorandum; Judge Fuchs-berg taking no part.

Order affirmed.


text:
    Foelly Crane, Individually and as Administrator of the Estate of Rita Crane, Deceased, Respondent, v Long Island College Hospital et al., Appellants, et al., Defendants.
    Argued February 6, 1978;
    decided March 21, 1978

      APPEARANCES OF COUNSEL

      Joseph D. Ahearn for Long Island College Hospital, appellant.

      Arthur Seiff and Anthony L. Schiavetti for Lucy S. Warren, as executrix of Robert F. Warren, deceased, appellant.

      Samuel J. Sussman for respondent.
   OPINION OF THE COURT

Memorandum.

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

In determining whether the plaintiff established a prima facie case of negligence against the defendants, testimony offered at the trial should be considered in the light most beneficial to plaintiff, alllowing every favorable inference which can reasonably be drawn from such testimony. (Sagorsky v Malyon, 307 NY 584.) The evidence in this malpractice action, by admission and expert testimony, reveals that the injury sustained by the decedent was tourniquet paralysis of the left arm brought about by excessive pressure applied to the arm, causing an injury of the nerves. No evidence was offered by the defendants to rebut this conclusion. Since the jury could reasonably find, as it did, that the injury sustained was brought about by the defendants, while acting in concert during the course of the operation, the verdict should not have been set aside and it was, therefore, properly reinstated by the Appellate Division. (Cooke v Drigant, 289 NY 313.)

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

Order affirmed.


text:
    Lisbon Contractors, Inc., et al., Respondents, v County of Monroe et al., Appellants, and Louis J. Lefkowitz, as Attorney-General of the State of New York, Intervenor-Appellant.
    Submitted February 21, 1978;
    decided March 21, 1978
   A direct appeal does not lie where questions other than the constitutional validity of a statutory provision are involved. (NY Const, art VI, § 3, subd b, par [2]; § 5, subd b; CPLR 5601, subd [b], par 2; Matter of Bartsch v State of New York, 33 NY2d 938.)


author: Jasen, J.

text:
    The People of the State of New York, Respondent, v Thomas F. Mullen, Appellant.
    Argued January 6, 1978;
    decided February 14, 1978

      POINTS OF COUNSEL

      Thomas J. Neidl and J. Raymond Fisher for appellant.
    Was the absence of defendant from the Trial Judge’s chambers during the proceeding concerning the qualifications of a juror a denial of due process and violation of CPL 260.20 and thus reversible error? (People ex rel. Lupo v Fay, 13 NY2d 253; People v Anderson, 16 NY2d 282; People v Merrihew, 9 AD2d 981; People v Saccomanno, 25 AD2d 528; People v Insogna, 28 AD2d 771; Evans v United States, 284 F2d 393; United States v Neal, 320 F2d 533; United States v Schor, 418 F2d 26.)

      Sol Greenberg, District Attorney (Melissa L. Campbell of counsel), for respondent.
    The absence of defendant from the trial court’s chambers during the questioning of a juror was not reversible error. (People v Merrihew, 9 AD2d 981; Evans v United States, 284 F2d 393; United States v Neal, 320 F2d 533; United States v Schor, 418 F2d 26; People v Anderson, 16 NY2d 282; People v Insogna, 28 AD2d 771; People v Saccomanno, 25 AD2d 528; People ex rel. Lupo v Fay, 13 NY2d 253; People v Tebsherany, 34 AD2d 1045; People ex rel. Fein v Follette, 61 Misc 2d 826.)
   OPINION OF THE COURT

Jasen, J.

The question presented on this appeal is whether the in-chambers questioning of a seated juror for possible disqualification to serve, conducted by the Trial Judge in the presence of the prosecutor and defense counsel but in the absence of the defendant, constitutes a violation of CPL 260.20 or a denial of due process.

Defendant was indicted by the Albany County Grand Jury and accused in four counts with criminal possession of dangerous drugs in the third degree (Penal Law, § 220.20, subd [b], par [ii]); criminal use of drug paraphernalia in the second degree (Penal Law, § 220.50, subd 2); criminal possession of a hypodermic instrument (Penal Law, § 220.45); and criminal possession of dangerous drugs in the sixth degree (Penal Law, § 220.05).

During the voir dire and selection of the jury, and after eight jurors had been selected and sworn, the first juror selected voluntarily stated in the presence of the panel that he thought the defendant looked familiar to him and that he remembered him from another case. At this point, the prosecutor asked the juror whether he remembered the defendant from another case on which he sat as a juror. The juror responded: "No, I didn’t sit on it. I was working in a place that was broken into.” The court then reminded the prosecutor that the juror had already been sworn and directed resumption of the selection of the jury.

After the entire jury had been impaneled and sworn, the court recessed, at which point the court called the first juror, the prosecutor and defense counsel to the bench. Immediately after this off-the-record discussion, the court conducted a hearing in chambers to consider whether the juror was qualified to remain a member of the jury. Although the prosecutor and defense counsel were present at the hearing, the defendant was not. In response to the court’s inquiry as to whether the juror’s knowledge of defendant would influence his decision in the case, the juror informed the court that it would not affect his verdict in any way — that he just wanted to be fair. Defense counsel chose not to question the juror.

At the conclusion of the hearing, the Trial Justice stated that he did not believe the situation required statutory disqualification. In response to the Trial Justice’s inquiry as to counsels’ opinion on this question, both the prosecutor and defense counsel stated that they agreed with the court’s conclusion. At no time did either defendant or his counsel seek to challenge the juror.

Following defendant’s trial, the jury returned a verdict finding defendant guilty of criminal possession of dangerous drugs in the third degree and criminally using drug paraphernalia. The Appellate Division unanimously affirmed the judgment of conviction.

CPL 260.20 provides that "[a] defendant must be personally present during the trial of an indictment”. Of critical importance to the interpretation of this provision is the meaning of the term "trial”. Certainly such important proceedings as the impaneling of the jury, the introduction of evidence, the summations of counsel, and the court’s charge to the jury must be deemed a part of the trial. (Maurer v People, 43 NY 1, 3.) Similarly, any further instructions given to the jury after they have retired to deliberate constitute the court’s charge and are, therefore, viewed as a part of the trial. (People ex rel. Bartlam v Murphy, 9 NY2d 550, 553.) All of these proceedings are deemed part of the trial because the presence of the defendant is considered "essential to the attainment of justice and the protection of the innocent.” (Maurer v People, 43 NY, at p 3, supra.)

Apart from our statutory provision, due process requires the presence of a defendant at his trial "to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.” (Snyder v Massachusetts; 291 US 97, 108.) His presence is required only where his absence would have a substantial effect on his ability to defend. (Snyder v Massachusetts, 291 US, at pp 105-106, supra; People ex rel. Lupo v Fay, 13 NY2d 253, 256-257, cert den 376 US 958; see, generally, 4 Zett, New York Criminal Practice, § 29.2, subd [2]; Impanelling Jury — Accused’s Absence, Ann., 26 ALR2d 762.)

Thus, whether the mandate requiring the presence of a defendant at the trial of his indictment stems from due process or statute, literal application of its directive is not demanded. Common sense dictates that substantial performance of its terms is sufficient. (People v Bragle, 88 NY 585, 590; People ex rel. Lupo v Fay, 13 NY2d, at p 256, supra.)

Applying this guide to our statutory provision, we held in People ex rel. Lupo v Fay (supra) that a defendant’s absence from the courtroom during his counsel’s argument for discharge of the jury did not affect a substantial right of the defendant requiring invalidation of his conviction. (13 NY2d, at p 257, supra.) In the same vein, and particularly pertinent to the present case is People ex rel. Fein v Follette (61 Misc 2d 826, affd 34 AD2d 835, mot for lv to app den 27 NY2d 486, cert den 401 US 954), in which the appearance in a morning newspaper of an article concerning the defendant’s trial was brought to the court’s attention. To inquire as to the effect this article might have upon the jury, the court ordered the jury to retire to the jury room. There, in the presence of the prosecutor and defense counsel, but in the absence of the defendant, the court proceeded to question the jury.

In discussing the defendant’s claim that the trial court’s actions denied defendant the right to be present at his trial, the court stated that the defendant’s absence from the jury room during the questioning of the jury did not affect any substantial right of the defendant. The court concluded that the questioning of the jury did not constitute a material part of the trial. (61 Misc 2d, at pp 831-833, supra; People v O’Keefe, 281 App Div 409, 416, affd 306 NY 619, cert den 347 US 989 [defendant’s right not violated where neither defendant nor his counsel were present at court’s questioning of juror].)

Turning to an analysis of the present case, we conclude that the Trial Justice’s questioning of the juror in chambers under the circumstances present here did not constitute a material part of the trial. (People ex rel. Fein v Follette, 61 Mise 2d, at pp 831-833, supra.) The court’s inquiry was informal; it occurred after the entire jury had been selected and sworn — a procedure throughout which the defendant was present. Since jury selection had already been completed, the inquiry cannot be said to have been a part of the formal impaneling of the jury. Most important, the defendant’s absence during this questioning did not have a substantial effect upon his opportunity to defend. Certainly, the presence of counsel at a hearing having nothing to do with guilt or innocence was sufficient to afford the defendant a "fair and just hearing”. Nothing more is required.

The order of the Appellate Division should be affirmed.

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

Order affirmed.