text:
    Jo A. Barry, an Infant, by Richard J. Barry, Her Parent and Natural Guardian, et al., Respondents, v Gary A. Manglass et al., Defendants, and General Motors Corporation, Appellant. Robert J. McElroy et al., Respondents, v General Motors Corporation, Appellant.
    Argued November 17, 1981;
    decided December 23, 1981

      APPEARANCES OF COUNSEL

      Roy L. Reardon, Otis M. Smith, James P. Barrett and Nicholas M. Cannella for appellant.

      Ralph S. Joseph and Harry A. Fox for Jo Anne Barry and another, respondents.

      Richard Narducci and Clarence A. Baracks for Robert J. McElroy and others, respondents.
   OPINION OF THE COURT

Memorandum.

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

The issue here is whether jury verdicts finding defendant General Motors Corp. liable to plaintiffs on negligence causes of action but not liable on strict liability claims were inconsistent. Given the manner in which the case was presented to the jury, it cannot be said that there was an inconsistency.

This action arose out of an accident that occurred on January 8, 1972 in Rockland County. Gary Manglass, driving alone in a Chevrolet Nova owned by his wife, Janice, made a left turn at a high rate of speed. His car began to weave and struck another car head-on. The crash injured Manglass and the occupants of the other car, Bev- . erly and Margo McElroy and Joanna and Jo Anne Barry. Ultimately, a jury found defendants Manglass and GM liable to the Barrys and McElroys on the negligence causes of action, but found GM not strictly liable. On the negligence claims, the jury apportioned fault 35% to Gary Manglass and 65% to GM. The jury also found against GM for the value of the Nova on Janice Manglass’ negligence and breach of warranty claims.

Before the jury was discharged, GM argued that the verdicts on the strict products liability and negligence causes of action were inconsistent. Inasmuch as an inconsistency exists only when a verdict on one claim necessarily negates an element of another cause of action, it is necessary to examine the trial court’s charge (cf. People v Tucker, 55 NY2d 1). The court here instructed the jury that to find GM liable on the strict products liability claims, it must find not only that the Nova’s left engine mount was defective, but that the Nova was not being misused at the time of the accident. The charge on the negligence causes of action did not impose this requirement of an absence of misuse. Inasmuch as no exception or further request to charge was made with respect to these instructions, they became the law of the case and the alleged inconsistency must be examined in that light (see Passantino v Consolidated Edison Co. of N. Y., 54 NY2d 840). A finding by the jury that Gary Manglass misused the Nova in making the high-speed turn would account for the differing verdicts on the negligence and strict products liability causes of action, and the verdicts were therefore not inconsistent. It should be emphasized that because of the absence of an exception or further request with respect to this aspect of the trial court’s charge, this court has no occasion to address the correctness of the instructions as a general statement of the law. The requirement of a timely exception is not merely a technicality. Its function “is to give the court and the opposing party the opportunity to correct an error in the conduct of the trial” (Delaney v Philhern Realty Holding Corp., 280 NY 461, 467; see 4 Weinstein-Korn-Miller, NY Civ Prac, par 4017.06). Thus, we do not decide whether negligent use may constitute misuse of a product barring recovery for strict products liability.

GM also contends that the verdict for Janice Manglass on her breach of warranty claim was inconsistent with the verdicts on the strict products liability causes of action. GM first raised this claim, however, in connection with a posttrial motion for a new trial. By failing to raise this inconsistency before the jury was discharged, GM afforded the trial court no opportunity to correct the claimed error or, on the attorney’s application, to retain the jury for a reasonable time, in light of the complexities involved, to allow counsel to study the problem and more clearly articulate his objection. This inconsistency could have been called to the court’s attention, either when the initial verdicts were rendered or when the jury later returned with its decision on the apportionment of fault between Manglass and GM. If the inconsistency had been raised, the trial court could have taken corrective action before the jury was discharged, such as resubmitting the matter to the jury. Because the issue was not raised until long after any steps could have been taken by the trial court to cure the inconsistency, it cannot serve as a predicate for a reversal by this court.

Fuchsberg, J.

(dissenting). While I share the majority’s opinion that the parties were bound by the legal instructions in which they acquiesced, we part company on the issue of GM’s preservation of the inconsistency inherent in the complex of verdicts as they were reported by the jury.

The verdicts eventuated from an automobile accident which occurred in a 50-mile per hour zone of a two-lane highway in Ramapo, Rockland County, when, as some of the testimony later was to develop, a Chevrolet Nova, of General Motors Corporation (GM) manufacture, made an unexpected left turn at approximately 55 to 60 miles per hour into the path of opposing traffic. There it crashed with great force into a station wagon registered in the name of Robert McElroy and then operated by his wife, Beverly. At the time, the Nova, owned by Janice E. Manglass, was being driven by her husband, Gary A. Manglass. Mr. Manglass was alone in the car.

A series of lawsuits followed. One, for personal injuries sustained by Joanna Barry and her daughter, Jo Anne, passengers in the McElroy vehicle, was commenced on negligence and strict products liability theories against GM, and against the Manglasses and the McElroys in negligence alone; Richard J. Barry, as husband of Joanna and father of Jo Anne, joined derivative loss of services causes. Actions for their injuries were also initiated by Beverly McElroy and her daughter Margo, who also was a passenger; husband and father Robert here too joined derivative causes, as well as one for the destruction of his station wagon; their cases, brought on like liability theories, named GM and the Manglasses alone. Finally, Gary Manglass, for his personal injuries, and Janice, for the damage to the Nova, sued GM, their actions sounding in negligence and breach of warranty, express and implied.

In essence, the thrust of all the claims against GM was that the Nova’s motor mounts, whose function is to fasten the engine to the frame of a motor vehicle, were so defectively designed that one of them separated, thus causing the engine to lift, the accelerator to jam and its driver to be deprived of control. During the battle between experts which later was to dominate the trial, GM’s position, inter alia, was that, whatever its experience with these motor mounts in other circumstances, in this instance the separation was a consequence rather than a cause of the collision. In any event, by then, all the actions had been joined for trial, of which there now have been two.

The first of these resulted in general verdicts for the Barrys and the McElroys for sums totaling $850,000 and $19,000, respectively. However, the ensuing judgments, which ran against GM and the Manglasses, were short-lived. Vacated by the Appellate Division for trial errors whose details are not pertinent here, the cases were remanded for retrial of the liability and apportionment issues (55 AD2d 1). It is from the second trial that the present appeal emanates. Again, the jury rendered verdicts for the Barrys and the McElroys against both GM and the Manglasses. Concordantly, it had disposed of Gary Manglass’ affirmative negligence and warranty claims against GM by finding verdicts of no cause.

In contrast to the outcome of the case against her husband, in which, as owner of the Nova, Janice Manglass had to be found vicariously liable to the Barrys and McElroys (Vehicle and Traffic Law, § 388), since she was not present in the vehicle when the accident occurred, conceptually she was not thereby precluded from recovering in her affirmative action against GM (Mills v Gabriel, 259 App Div 60, affd 284 NY 755). Obviously hearkening to an appropriate instruction on that subject, the jury decided for her against GM both in negligence and for breach of warranty.

GM did not appeal the Janice Manglass verdict, which, in due course, became final and binding. But, on the premise that the verdicts were fatally incongruous, it took the Barry and McElroy judgments to the Appellate Division. This claim originally had been articulated when, after the jury had announced its verdicts and before it had been directed to pass on the apportionment question, GM’s trial counsel, contending that there were “clearly inconsistencies” in an exoneration of his client in strict products liability while holding it liable for negligence, asked the court to seek “an advisory verdict” via the submission of a special interrogatory on whether the jury found the motor mount defective. This request was denied. Thereafter, GM fared no better when, in a timely posttrial CPLR 4404 (subd [a]) motion for a new trial, it further developed its inconsistency assertion by pointing out that, since the essential components of breach of warranty and strict products liability are alike, the “divergent findings” for Janice Manglass against GM on the former theory vis-avis the one for GM on the latter, being companion to those in the McElroy suits, also “cannot be reconciled”.

On review, these points were rejected by the Appellate Division and the judgments appealed affirmed. Dealing first with GM’s position that the verdicts against it in negligence had to be at odds with those for it in strict liability, the court noted that the trial court’s delineation of the elements essential to establishing a case in strict liability included a showing that the Nova was being used “for the purpose and in the manner normally intended”, a factor which, as such, was not necessary to the proof of negligence. From this it reasoned that, though a jury finding that Gary Manglass was operating the Nova beyond the range of what was “normally intended” would preclude a verdict for the plaintiffs against GM in strict liability, it nonetheless would not bar a verdict in their favor in negligence. As to GM’s contention that, as relevant in this case, the elements on which Janice Manglass had to depend to sustain her recovery against GM on the warranty claim were concomitant with those on which the Barrys and McElroys were unsuccessful against GM in strict liability, the Appellate Division, without disputing this proposition, chose to assume that the warranty on which Mrs. Manglass had recovered was express rather than implied and, presumably, that the components of the one differed from the other.

In now appraising the correctness of these views, I start with the observation that, as distinguished from a criminal case, where, at least since Justice Holmes’ landmark opinion in Dunn v United States (284 US 390), a jury’s exercise of mercy may adequately explain what otherwise could appear to be an inconsistency (see People v Tucker, 55 NY2d 1; People v Pugh, 36 AD2d 845, affd 29 NY2d 909, cert den 406 US 921; see, also, 18 ALR3d 259, § 2, subd Ob], and cases cited thereat), in a civil suit what is required is a verdict which is logically possible as measured by the charge of the court.

In the context of a jury trial, this has long meant that, to obviate a claim of inconsistency, it must be shown that facts which could be found by the jury, when applied to the law as charged by the Trial Judge, can be made to square with the verdicts in question (see Pangburn v Buick Motor Co., 211 NY 228; Reilly v Shapman Realty Corp., 267 App Div 198). For this purpose, where a verdict is a general one, applicable is the principle that, since the “appellate court cannot know with certainty what led the jury to its conclusion; it must assume that the jury took that view of the facts which justifies its verdict” (Cohen and Karger, Powers of the New York Court of Appeals, §§ 118-119, p 503). Moreover, if parties accept the law as it is laid down to the jury, absent countervailing public policy, for this purpose it is irrelevant that the legal course so charted may, in the abstract, be incorrect (Martin v City of Cohoes, 37 NY2d 162, 165-166; Kaplan v City of New York, 269 App Div 856; 8 Carmody-Wait 2d, NY Prac, p 337).

It follows that the claimed inconsistency is not dependent on the legal validity of the instructions that the proof of the way in which Gary Manglass operated the Nova on the occasion of the accident raised a question of fact as to whether it constituted use “for the purpose and in the manner normally intended”. Suffice it to say, since no exception was taken or further request was made with regard to this instruction, and no contravention of policy is apparent, the parties must be deemed to have consented that this was the law to be applied in the trial from which these appeals originate. So, if we assume, as the Appellate Division did, that the jury found that Gary Manglass misused the Nova, standing alone, this would seem to logically account for the failure of the Barry and McElroy strict liability causes. It then indeed could be said, to borrow the language of that court, that “the instructions precluded a verdict in favor of the plaintiffs on strict products liability but nonetheless permitted a verdict against General Motors on negligence”.

But this need only have been true if the strict products liability causes and those which talked in tort terms of negligence were all the jury had decided. Here, instead, there was more, for Janice Manglass’ recovery in warranty introduced a discordant factor which materially affected the intermingled negligence-strict liability equation to whose imbalance GM’s counsel had directed the trial court’s attention.

Specifically, as the record shows, while the trial court told the jury that it could find in her favor for breach of either an express or an implied warranty, in fact the charge it delivered spelled out identical elements for both, again without exception. As applicable to both express and implied warranty, the jury thus was advised that it must find “that at the time of the occurrence plaintiff, Manglass, was using the product, the vehicle, for the purpose and manner intended.” Accordingly, on its face, the jury’s warranty verdict for Janice Manglass could be said to represent an implicit finding that no misuse had occurred.

Yet, this could have been in direct conflict with the finding against GM on the strict liability counts for, there too, in which, for practical purposes, was a duplication of the language it employed in its warranty instructions (see Codling v Paglia, 32 NY2d 330, 342), the court informed the jurors that they could not decide for Janice or the McElroys unless they were convinced that, “at the time of the occurrence, the accident, this Nova, was in fact being used for the purpose and in the manner normally intended”. Further analysis, however, does not dictate an assumption that the verdicts for GM in strict liability had to be based on a finding of misuse. Alternatively, a jury determination of no misuse could be harmonized with Janice’s verdict, if we hypothesize that the jury found that either the alleged defect or its causative role had not been established. After all, since the court had charged that the three disputed elements essential to the plaintiffs’ strict liability case were a defective product, causation and absence of misuse, failure to satisfy the jury on any one of these would offer an equally logical explanation for GM’s success on this phase of the case.

From all this, logic also compels us to conclude that, if the jury was not persuaded that the motor mount was defective or that the defect was a proximate cause of the accident, this, in turn, would be inconsistent with the verdict against GM in negligence, the court having correctly charged that each of these was a sine qua non for a plaintiffs’ recovery under this rubric. Consequently, while any attempt to synchronize the strict liability verdicts with the one for Janice Manglass in warranty inevitably discloses a flagrant inconsistency, if, instead, one juxtaposes the strict liability verdicts against those in negligence, as GM did when it initially presented the problem, an equally hopeless inconsistency emerges. For, as we have seen, whether one enters the discussion of these inextricably confused verdicts through the portal of the McElroy v GM causes in negligence and strict liability or that of Janice Manglass v GM in negligence and warranty, the ultimate finding must be one of legally intolerable inconsistency.

Under these circumstances, the requirement which the majority would impose, that counsel have explored all facets of the inconsistency in the immediacy of the reporting of the verdict, is unreal. This was not a case in which written interrogatories had been submitted to the jury; then, perhaps, some might expect counsel to discern from the jury’s answers whether its findings are consistent with each other or with the general verdict (see CPLR 4111, subd [c]). But, in this case, involving nine parties, three separate theories of recovery and a general verdict, such a requirement is patently unreasonable. To expect counsel, at the peril of his client’s rights, to fathom the myriad lines of reasoning which the jury might have followed in reaching their conclusions, all in the spontaneity of the tension-filled moments after the pronouncements of the verdicts, is to make our preservation practice a test of gamesmanship rather than a fair procedural device. That counsel did not immediately seize upon the exact analysis is no more than practicably could have been anticipated. That he perceived an inconsistency and promptly articulated it as best he could at the moment is to his credit.

Indeed, the additional time granted by the trial court to make postverdict motions indicates an intent to permit the parties to undertake a more studied presentation. The issue of inconsistency between the Janice Manglass warranty verdict and those for the McEÍroys in negligence and strict liability having been fully explored at that time, a reasonable reading of the Civil Practice Law and Rules in any event would find it reviewable on this appeal (CPLR 4404, 5501, subd [a], par 2; cf. CPLR 4017, 5501, subd [a], pars 3, 4; see, also, Pangburn v Buick Motors, 211 NY 228, supra; see, also, 8 Carmody-Wait 2d, NY Prac, § 58.18; 4 Weinstein-Korn-Miller, NY Civ Prac, par 4404.22).

In fine, that the permeating inconsistency here exists is now no longer controverted. That the announcement of the verdicts in which it inhered had to have come as a surprise, if not as a shock, to GM’s counsel is unquestionable. That the full extent of the inconsistency was not likely to be appreciated is proved by the cold fact that, given the multiple opposing parties and the varying causes of action, the number of verdict combinations that were possible was 65,536 (2 to the 16th power). The neutral Trial Judge, whose exposure to the case stretched over a trial of some three weeks, did not appreciate the inconsistency, either when first raised, or when the apportionment verdicts came in, or when fully presented on the formal CPLR 4404 motion. The Appellate Division, after extensive appellate review, did not perceive its existence. And, our court, in the relatively unhastened and contemplative collegial setting of a court of highest jurisdiction, having afforded the inconsistency some judicial perception for the first time, nevertheless is reduced to holding conscientious counsel to the hindsight of a mental and emotional Gargantua. As such, he is now held, for the first time in any reported case, to have had the savoir faire to have “applied to retain the jury for a reasonable time, in light of the complexities involved, to allow counsel to study the problem and more clearly articulate his objection”. If all this is not a denial of fundamental fairness, it certainly smacks of it.

For all these reasons, I believe the order of the Appellate Division should be reversed, the liability judgments appealed from vacated and the case remitted to the Supreme Court for further proceedings.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Meyer concur in memorandum; Judge Fuchsberg dissents and votes to reverse in an opinion.

Order affirmed.

       Although GM’s counsel did mention inconsistent verdicts at trial, his comments then focused on the claimed inconsistency between the negligence and strict liability verdicts and he made no mention of the warranty verdict for Janice Manglass.

      . The Barrys’ action as against the McElroys was dismissed at trial.

      . As part of their case, plaintiffs introduced portions of recall letters GM sent to Chevrolet owners some time after this accident. The letters warned of the possibility of separation of the engine mounts.

      . The governing doctrine at the time of this accident was contributory rather than comparative negligence. In the apportionment phase of its deliberations, the jury ascribed 65% of the negligence to General Motors and 35% to the Manglasses.

      . Prior to delivering his original charge to the jury, the Trial Judge thought it best to exercise his discretion by abandoning a plan to submit the case on written interrogatories when he could not persuade' the parties to agree on the language in which these should be framed. (See CPLR 4111; 8 Carmody-Wait 2d, NY Prac, p 328.) It is not claimed in this case that the failure to submit interrogatories was an abuse of discretion as a matter of law.

      . The 15-day limit for making the CPLR 4404 (subd [a]) motion was extended by the trial court to give the parties 30 days (CPLR 4405; 4 Weinstein-Korn-Miller, NY Civ Prac, par 4405.05; see Justice Arthur Spatt’s interesting opn on this subject in Ace Wire & Cable Co. v Transamerica Ins. Group, NYLJ, Dec. 8, 1981, p 14, col 2).

      . On the distinction between unforeseeable use and contributory negligence, see Hilton, The Strict Products Liability Case — Complaint, Defenses and Instructions (48 Ore L Rev 192, 203). “Contributory negligence is not the same thing as abnormal use; and although the two frequently coincide, one may exist without the other” (Prosser, Torts [4th ed], § 102, p 670, and cases cited in n 79 thereat).

      . For this reason, I am in accord with the majority that we need not now decide whether, as a matter of law, the conduct of Barry Manglass in the operation of the automobile here could be found to constitute product misuse.

      . In submitting a list of the various parties and causes of action to the jury, in response to a request from that body, the trial court also described Janice’s warranty cause as simply one for “warranty”. The jury subsequently so reported its verdict without distinguishing between express and implied warranty.

      . None of this is any less so because the unappealed Janice Manglass warranty verdict is now final and binding. Whatever this finality portends by way of issue preclusion at a new trial, for present purposes we treat only with the part this verdict played in the skein of inconsistency which runs through these verdicts as a whole as of the time they were rendered.

      . The record shows that counsel prefaced his remarks to the court with the statement: “Judge, I think everybody ought to think very clearly before we let this jury go in this posture. *** I think I am correct in analyzing the verdict, at least the limited time I have had to think about it, in saying there are clearly inconsistencies” (emphasis, of course, added).

      . As already indicated (n 10) when the verdicts were reported counsel stated both his concern about “inconsistencies” and “the limited time I have had to think about it”, which, unless one strains for hypertechnicality, must be taken to evidence a desire for more time, which the Trial Judge could hardly have failed to have in mind when he extended the statutory time limit for a CPLR 4404 motion.


source: Caselaw Access Project

author: Jasen, J.

license: Public Domain

text:
    In the Matter of Roosevelt Haynes, Appellant, v County of Chautauqua et al., Respondents.
    Argued November 20, 1981;
    decided December 23, 1981

      APPEARANCES OF COUNSEL

      Clarence H. Snyder for appellant.

      Edwin J. Kuzdale, County Attorney (Bruce K. Carpenter of counsel), for respondent.

      Harvey Randall for New York State Department of Civil Service, amicus curiae.

   OPINION OF THE COURT

Memorandum.

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

Petitioner contends that he was improperly terminated as a medical social worker at the Chautauqua County Home and Infirmary. He received a provisional appointment on April 26, 1976. At that time, no civil service eligible list existed for the position. On October 22, 1979, an eligible list was established, and petitioner, who had taken a competitive civil service examination in April, 1979, was ranked first with two other persons. On November 20,1979, he was notified that his employment would be terminated on December 7, 1979.

Petitioner maintains that he became a permanent probationary employee when the civil service eligible list was established on October 22,1979, and he therefore could not be removed without a hearing during the eight-week minimum probationary period. Under the terms of the statute, however, petitioner remained a provisional employee until he was terminated. Subdivision 3 of section 65 of the Civil Service Law states that a “provisional appointment to any position shall be terminated within two months following the establishment of an appropriate eligible list for filling vacancies in such positions”. For petitioner’s position, the eligible list was established on October 22 and his employment was terminated effective December 7, 1979, well within the two-month period.

Petitioner misses the mark with his contention that subdivision 4 of section 65, as construed in Matter of La Sota v Green (53 NY2d 631), conferred permanent probationary status upon him when the October 22 eligible list was established. That subdivision, by its express terms, applies only where “an examination for a position or group of positions fails to produce a list adequate to fill all positions then held on a provisional basis, or where such list is exhausted immediately following its establishment” (Civil Service Law, § 65, subd 4). Here the list was adequate and was not exhausted. Although it is true that petitioner was continued in his provisional appointment well beyond the maximum nine-month period (Civil Service Law, § 65, subd 2), the statute does not convert such a continuation, by itself, into permanent employment status.

Whatever appeal the argument that such a continuation by itself should transform a provisional appointment to a permanent one has, the fact remains that the Legislature has refrained from so providing. Absent such action by the Legislature, retention of a provisional employee beyond nine months, although proscribed by subdivision 2 of section 65, does not, without more, ripen into a permanent appointment (see Matter of Vazquez v New York City Dept. of Social Servs., 56 AD2d 432, 434, affd 44 NY2d 720).

Jasen, J.

(dissenting). I cannot agree with the majority’s interpretation of section 65 of the Civil Service Law or of the prior case law. Therefore, I dissent and would reverse the order of the Appellate Division and order the petitioner’s reappointment for an appropriate probationary term. The clear intent of this State’s constitutional requirement of a civil service system (NY Const, art V, § 6) is to prevent abusive employment practices while assuring the government a competent and stable work force. The majority’s decision today not only violates that general purpose of the Civil Service Law, but also violates petitioner’s rights under the Civil Service Law.

Petitioner was originally appointed on a provisional basis because no eligibility list existed at that time. A provisional appointment, of course, does not entitle the appointee to the full panoply of protections under the Civil Service Law (Koso v Greene, 260 NY 491), but neither is it authorization to disregard the required procedures for hiring and dismissing employees.

Section 65 of the Civil Service Law governs provisional appointments. By its terms, such appointments cannot exceed nine months in duration. In this case, the county, in clear violation of the statute, retained petitioner as a provisional appointee for over three years.

Petitioner contends that under subdivision 4 of section 65 he is entitled to permanent appointment as of the date his name appeared among the top three candidates on the eligibility list. The majority interprets this remedy to be limited to appointees who are retained as provisional appointees beyond nine months because the eligibility list was exhausted. The statute, however, after authorizing successive provisional appointments in cases where the eligibility list has been exhausted, provides that “a current or former provisional appointee *** who becomes eligible for permanent appointment to any such position shall, if he is then to be continued in or appointed to any such position be afforded permanent appointment to such position.” Petitioner, by taking the requisite examination the first time it was offered and by placing among the top three candidates became eligible for permanent appointment. The county, by virtue of retaining him in that position after his name appeared on the civil service eligibility list, was required to make the appointment permanent.

This is precisely the interpretation of section 65 which this court applied in Matter of La Sota v Green (53 NY2d 631, 632). In that case, this court held that the petitioner “who was retained over a month beyond the nine-month statutory term of his provisional appointment *** attained permanent status when he was continued in his position subsequent to his name appearing on an eligible list”. Such an interpretation of this statute is more appropriate given its clear prohibition against extending provisional appointments beyond nine months.

Thus, I would hold that petitioner became a permanent appointee when he was retained, after his name appeared on the eligibility list, in the position to which he had originally been provisionally appointed.

This is not to say he would not be required to complete the probationary term required of all permanent employees. However, during the probationary term, petitioner would be entitled to the procedural protections of the Civil Service Law and the rules promulgated thereunder. In this case, then, petitioner should have been given the benefits of the required evaluations of his work (4 NYCRR 4.5 [a] [5] [in]) and at least the minimum probationary period of eight weeks (4 NYCRR 4.5, as amd by Chautauqua County Classified Civil Service Rule XIII, § 1 [a]; Matter of Albano v Kirby, 36 NY2d 526). Although it is possible that the county would have reason for not continuing petitioner in his position after the minimum probationary term, it is difficult to conceive of what problems would arise with petitioner’s job performance during that period which had not arisen during the extended period of his provisional appointment.

This case presents the type of manipulation of the Civil Service Law which should not be sanctioned. Accordingly, I would reverse the order of the Appellate Division and order the petitioner reinstated as a permanent appointee subject to an eight-week probationary term.

Chief Judge Cooke and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum; Judge Jasen dissents and votes to reverse in an opinion.

Order affirmed.


text:
    The People of the State of New York, Respondent, v Joseph Murphy, Appellant.
    Decided December 23, 1981

      APPEARANCES OF COUNSEL

      Elaine Platt for appellant.

      Eugene Gold, District Attorney {.Michael J. Halberstam of counsel), for respondent.
   OPINION OF THE COURT

On summary consideration, order affirmed. We cannot say, as a matter of law, that defendant did not consent to having the police enter his apartment. The presence of the four uniformed officers, the fact that one officer placed his hand on the door to the apartment, and the fact that defendant was clad in his underwear at the time in question are only factors to be taken into account when determining whether consent was voluntarily given. (People v Kuhn, 33 NY2d 203, 208-209.) Under the circumstances of this case, the record before us offers no reason to disturb the affirmed determination that defendant voluntarily consented to the police entry into his apartment.

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


text:
    The People of the State of New York, Respondent, v Peter Klass, Appellant.
    Argued November 18, 1981;
    decided December 23, 1981
    APPEARANCES OF COUNSEL

      Herbert S. Siegel and Alex P. Siegel for appellant.

      Robert M. Morgenthau, District Attorney (Mary Cheasty Kornman, Robert M. Pitler and Norman Barclay of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

At the hearing held on defendant’s motion to suppress, Police Officer Morgan testified without contradiction that on the evening of April 17,1978 he and his partner were on routine foot patrol duty in a New York City apartment project; that on the sidewalk in front of one of the buildings in the project they were approached by an unidentified passerby who informed them there was a man with a gun, which he had seen, in the first floor hallway of the adjacent building and that the man was white, 20 to 22 years of age, wearing a brown short-waisted jacket; that within 20 seconds of receiving that information the officers ran the 30 feet into the hallway where they saw defendant, the only person in the hallway, who matched the description they had just been given; that when asked to identify himself defendant said nothing; that they then asked him what he was doing there and again he said nothing; that defendant was then “patted-down” and a loaded .25 caliber pistol was discovered in his sock.

On the basis of that testimony the suppression court concluded that the officers possessed the requisite degree of reasonable suspicion to justify the actions they had taken. That determination, now affirmed by the Appellate Division, was not erroneous as a matter of law.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur; Judge Meyer concurs in result only.

. Order affirmed in a memorandum.


text:
    A. Juan J. Morales, Respondent, v New York University et al., Appellants.
    Decided December 23, 1981

      APPEARANCES OF COUNSEL

      S. Andrew Schaffer and Ada Meloy for appellants.

      William M. Kunstler for respondent.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division. Question certified answered in the affirmative.

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


text:
    In the Matter of the Holy Spirit Association for the Unification of World Christianity, Appellant, v Tax Commission of the City of New York, Respondent.

      Submitted December 14, 1981;
    decided December 23, 1981
   Motion to dismiss appeal or, in the alternative, to compel appellant to file a further appendix denied in each respect.


text:
    Mary Jonap, Appellant, v Herbert Norwick et al., Respondents, et al., Defendants.
    Submitted December 7, 1981;
    decided December 23, 1981
   Motion to dismiss the appeal granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that the dissent at the Appellate Division is not on a question of law (CPLR 5601, subd [a], par [i]).


text:
    In the Matter of Walter & Samuels, Inc., as Agent, Respondent, v New York City Conciliation and Appeals Board, Appellant.
    Submitted December 14, 1981;
    decided December 23, 1981
   Motion to dismiss the appeal granted and the appeal dismissed as moot, with costs and $20 costs of motion.


text:
    The People of the State of New York, Respondent, v Angel F. Glass, Appellant.
    Decided January 7, 1982

      APPEARANCES OF COUNSEL

      Dominic J. Sichenzia for appellant.

      Denis Dillon, District Attorney (Martin I. Saperstein of counsel), for respondent.
   OPINION OF THE COURT

On summary consideration, order affirmed. Based on the elements of the crime as charged to the jury, we cannot say, as a matter of law, that the jury’s verdict acquitting the defendant of the charges of attempted murder in the second degree and assault in the second degree is repugnant to the verdict convicting defendant of criminal possession of a weapon in. the second degree (People v Tucker, 55 NY2d 1).

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


text:
    In the Matter of Anthony Esposito et al., Appellants, v New York State Department of Civil Service et al., Respondents.
    Decided January 7, 1982

      APPEARANCES OF COUNSEL

      John J. Sweeney for appellants.

      Robert Abrams, Attorney-General (William J. Kogan of counsel), for respondents.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division.

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


text:
    In the Matter of the Arbitration between Empire Mutual Insurance Company, Appellant, and Max Kohulka, as Administrator of the Estate of John Kohulka, Deceased, Appellant, and Insurance Company of North America, Respondent.
    Decided January 7, 1982

      APPEARANCES OF COUNSEL

      Raymond J. MacDonald and Isabella Natale for Empire Mutual Insurance Company, appellant.

      Frank A. Composto and Max Thaler for Max Kohulka, appellant.

      Mary Ellen Burns for respondent.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs. There was sufficient admissible proof of the office practice and procedure followed by respondent Insurance Company of North America and proof that the particular notice was mailed to Morgan to support the Appellate Division finding that Morgan’s insurance policy had been canceled prior to the date of the accident.

Concur: Chief Judge Cooké and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    In the Matter of Clayton Fountain, Respondent, v Ann M. Fountain, Appellant.
    Decided January 7, 1982

      APPEARANCES OF COUNSEL

      Thomas B. Wheeler for appellant.

      Robert E. White for respondent.
   OPINION OF THE COURT

On summary consideration, order affirmed, without costs. On the record in this case, in which neither parent has been found unfit, we cannot say, as a matter of law, that the affirmed findings of the Family Court were without support in the evidence.

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


text:
    The People of the State of New York, Appellant, v John Doe, Respondent. The People of the State of New York, Appellant, v Lou V. Tempera, Respondent.
    Submitted January 5, 1982;
    decided January 7, 1982
   Application for a stay denied.

Judge Meyer taking no part.


text:
    In the Matter of the Estate of Georges Kleefeld, Deceased. Denise Stork, Appellant; Joseph De Mul et al., Respondents.
    Submitted January 4, 1982;
    decided January 7, 1982
   Motion to dismiss the appeal denied.


text:
    Edward Hayden, Appellant, v Comsewogue Union Free School District No. 3, Port Jefferson Station, Respondent. Emmanuel J. Yris, Appellant, v Comsewogue Union Free School District No. 3, Port Jefferson Station, Respondent.
    Decided January 12, 1982

      APPEARANCES OF COUNSEL

      Robert Saperstein for appellant.

      Frederick Block and Joel M. Markowitz for respondent.
   OPINION OF THE COURT

On summary consideration, judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs. The notice of claim provision of section 3813 of the Education Law is applicable to this action to enforce provisions of a collective bargaining agreement. The claims accrued for purposes of this section, when the damages became ascertainable, i.e., at the end of each year in which plaintiffs were contractually entitled to longevity payments (Matter of Board of Educ. [Wager Constr. Corp.], 37 NY2d 283, 290).

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


text:
    In the Matter of Hugh Raiten, Appellant, v New York State Liquor Authority et al., Respondents.
    Decided January 12, 1982

      APPEARANCES OF COUNSEL

      John J. Tierney and Joel M. Markowitz for appellant.

      Warren B. Pesetsky and Stephen D. Kolinsky for respondent.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs. It cannot be said that the authority’s determination was arbitrary or capricious.

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


text:
    Leroy Walker, Doing Business as Walker Trucking, Appellant, v Buffalo Electrical Construction, Inc., et al., Respondents.
    Decided January 12, 1982

      APPEARANCES OF COUNSEL

      Sam C. Bonney for appellant.

      Kalvin Kamien for respondent.
   OPINION of the court

On summary consideration, order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division.

Concur; Chief Judge CooKe and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    Henry Chabot, Appellant, v Kenneth J. Baer, Respondent.
    Decided January 12, 1982

      APPEARANCES OF COUNSEL

      John S. Hall for appellant.

      Jerome K. Frost for respondent.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (82 AD2d 928).

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


text:
    Aubel Claudio, Jr., an Infant, by His Father and Natural Guardian, Aubel Claudio, Sr., et al., Respondents, v New York City Housing Authority, Appellant, et al., Defendant.
    Submitted December 14, 1981;
    decided January 12, 1982
   Motion to dismiss appeal granted and appeal dismissed, with costs and $20 costs of motion, upon the ground that the dissent at the Appellate Division is not on a question of law (CPLR 5601, subd [a], par [i]).


text:
    Dic-Underhill, Consisting of Dic Concrete Corporation and Underhill Construction Corporation, Appellant, v Community Services, Inc., et al., Respondents.
    Submitted November 16, 1981;
    decided January 12, 1982
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed the order denying leave to replead, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion otherwise denied, with $20 costs and necessary reproduction disbursements.


text:
    Diane Dwyer, as Executrix of Peter E. Dwyer, Deceased, Respondent, v Phoenix Mutual Life Insurance Company, Respondent. Phoenix Mutual Life Insurance Company, Interpleading Respondent, v Michael Nicholson, Interpleaded Appellant, and Diane Dwyer, Interpleaded Respondent, et al., Interpleaded Defendant.
    Submitted December 28, 1981;
    decided January 12, 1982
   Motion for a stay dismissed upon the ground that no appeal is pending in the Court of Appeals.


text:
    John D. Picotte, Appellant, v Margaret B. Picotte, Respondent.
    Submitted November 30, 1981;
    decided January 12, 1982
   Motion by plaintiff for leave to appeal dismissed upon the ground that the portion of the Appellate Division order that plaintiff seeks to appeal from does not finally determine the action within the meaning of the Constitution.

Chief Judge Cooke taking no part.


text:
    John D. Picotte, Respondent, v Margaret B. Picotte, Appellant.
    Submitted December 21, 1981;
    decided January 12, 1982
   Motion by defendant for leave to appeal denied.

Chief Judge Cooke taking no part.


text:
    Sandra Zellman, Individually and as Executrix of Robert Zellman, Deceased, Respondent, v Metropolitan Transportation Authority et al., Appellants.
    Submitted December 28, 1981;
    decided January 12, 1982
   Application to withdraw the appeal taken as of right granted and the appeal withdrawn. Motion to dismiss the appeal taken as of right marked “withdrawn as unnecessary”, with costs and $20 costs of motion.


text:
    Arthur Puro, Appellant, v Jacob Puro, Defendant, and Louis Puro et al., Respondents.
    Decided January 14, 1982

      APPEARANCES OF COUNSEL

      Eugene J. Morris for appellant.

      Rosenman, Colin, Freund, Lewis & Cohen for Irving Spanier et al., executors of the estate of Sam Puro, deceased, respondent.

      Schutle, Roth & Zabel for Louis Puro, respondent.

      Milton Davidoff and Ambrose Doskow for Mildred Puro et al., as executors of the estate of Joseph Puro, deceased, respondent.

      Rathheim, Hoffman, Kassel & Levie for Jacob Puro, defendant.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (82 AD2d 749).

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


text:
    Shirley V. Rivenburgh, as Administratrix of the Estate of Frank V. Rivenburgh, Deceased, Appellant, v Viking Boat Co. et al., Respondents. Alco Standard Corporation, Doing Business as Tempo Products Company, Fifth-Party Plaintiff, v Walter A. Braun Co., Inc., Fifth-Party Defendant-Respondent. (And Other Actions.)
    Decided January 14, 1982

      APPEARANCES OF COUNSEL

      Norman H. Dachs for appellant.

      Joseph Emmet Soffey for Viking Boat Co., respondent.

      John E. Long and Martin J. Burgess for Bay Shore Marine Basin, Inc., respondent.

      William F. McNulty for Aleo Standard Corporation, Doing Business as Tempo Products Company, respondent.

      Michael Majewski for Walter A. Braun Co., Inc., fifth-party defendant-respondent.
   OPINION OF THE COURT

On summary consideration, order reversed and a new trial granted with costs to abide the event. A plaintiff in a wrongful death action is not held to as high a degree of proof as a plaintiff in a personal injury action and is entitled to benefit from every favorable inference which can reasonably be drawn from the evidence in determining whether a prima facie case has been made out (see Noseworthy v City of New York, 298 NY 76). In this case, the testimony of the marine mechanic, Albert Sabiston, raised an issue as to the existence of a leak in the fuel tanks of decedent’s boat on the day of the explosion sufficient to warrant sending the case to the jury.

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


text:
    Lottie Tomaszewski et al., Appellants, v William Cleveland, Defendant, and Gloria Martinez, Respondent.
    Decided January 14, 1982

      APPEARANCES OF COUNSEL

      Lawrence A. Shulz for appellant.

      Victor A. Rossetti for respondent.
   OPINION OF THE COURT

On summary consideration, order reversed, with costs, and the motion by defendant Martinez to dismiss the complaint denied. We disagree with the holding of the Appellate Division basing its decision as to defendant Martinez on the invalidity of the order and postattachment procedure, issues which have been waived by defendant’s failure to timely raise them. Defendant also waived her objections to quasi in rem jurisdiction by failing to allege this ground in her answer (see Gager v White, 53 NY2d 475, 489).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtleé, Fuchsberg and Meyer.


text:
    In the Matter of Gertrude Ghignone, Appellant, v Daniel W. Joy, as Commissioner of the Office of Rent and Housing Maintenance, et al., Respondents.
    Decided January 14, 1982

      APPEARANCES OF COUNSEL
    John G. Hall for appellant.

      Harry Michelson and Stephen H. Deutschmeister for respondents.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs. Mrs. Thompson is clearly entitled to “use or possession” of the apartment within the meaning of the decontrol provisions of the rent control statute, and has resided there continually since 1942. Accordingly, there has been no hiatus in possession or actual physical vacancy of the premises by the statutory tenant as would be required to support an order of decontrol.

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


text:
    In the Matter of Leo K. McManus, Deceased. Joseph M. McManus, Sr., Appellant; Virginia A. McManus, as Executrix of Leo K. McManus, Deceased, Respondent.
    Decided January 14, 1982

      APPEARANCES OF COUNSEL

      Terrence P. O’Reilly for appellant.

      Arthur J. Powers for respondent.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs. We agree with the Appellate Division that “[ajpplying fundamental principles of contract law, it is apparent that the petitioner’s letter of December 14,1979 was an unqualified, seasonable expression of acceptance of appellant’s offer of stock at a price to be computed in accordance with the formula contained in the shareholders’ agreements” (83 AD2d 553; see Martin Delicatessen v Schumacher, 52 NY2d 105, 110; 1 Corbin, Contracts, §§ 97-98).

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


text:
    Hugh J. Reynolds, Individually and as Parent of Maureen P. Reynolds, an Infant, Respondent, v Morka Enterprises, Inc., Respondent, and National Presto Industries, Inc., Appellant. National Presto Industries, Inc., Third-Party Plaintiff-Appellant, v Michael Reynolds, Third-Party Defendant-Respondent.
    Submitted December 14, 1981;
    decided January 14, 1982
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed the approval of the settlement as to third-party defendant Michael Reynolds, denied; motion otherwise dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Dennis T. et al., Respondents, v Joseph C., Appellant.
    Submitted January 4, 1982;
    decided January 14, 1982
   Motion by respondent-appellant Joseph C. for reargument of motion to dismiss appeal taken as of right pursuant to CPLR 5601 (subd [b], par, 1) dismissed as untimely. Motion by respondent-appellant Joseph C. for reargument of motion for leave to appeal denied. Cross motion by petitioners Dennis T. et al. dismissed upon the ground that the Court of Appeals has no jurisdiction to grant the relief requested, without prejudice to an application by petitioners in Supreme Court, Queens County, for enforcement. [See 54 NY2d 1024.]


text:
    The People of the State of New York, Respondent, v Victor Parsons, Appellant.
    Decided January 19, 1982

      APPEARANCES OF COUNSEL

      William E. Hellerstein and Anne L. Freedman for appellant.

      Robert Morgenthau, District Attorney (Nathan C. Nasser of counsel), for respondent.
   OPINION OF THE COURT

On summary consideration, order affirmed for the reasons stated in the memorandum of the Appellate Division.

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


text:
    Atkins & Durbrow, Ltd., Appellant, v Home Indemnity Company, Respondent.
    Decided January 19, 1982

      APPEARANCES OF COUNSEL

      Leonard H. Belford for appellant.

      Gregory A. Gates for respondent.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (84 AD2d 637).

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


text:
    In the Matter of Arline Pietranico, Appellant, v Gordon M. Ambach, as Commissioner of Education of the State of New York, et al., Respondents.
    Decided January 19, 1982

      APPEARANCES OF COUNSEL

      Margaret K. Brooks and Paul N. Samuels for appellant.

      Robert Abrams, Attorney-General (.Raymond J. Foley of counsel), for respondents.
   OPINION OF THE COURT

On summary consideration, judgment affirmed, with costs, for the reasons stated in the opinion by Justice Leonard A. Weiss at the Appellate Division (82 AD2d 625), based on the bare record before us.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones and Wachtler. Judges Fuchsberg and Meyer dissent in part and vote to modify by reducing the punishment imposed to censure for the reasons stated in the concurring in part and dissenting in part opinion by former Justice J. Clarence Herlihy at the Appellate Division (82 AD2d 625, 627-628).


text:
    Edmund Schwanke et al., Appellants, v Laci Berghauer et al., Respondents.
    Decided January 19, 1982

      APPEARANCES OF COUNSEL

      Martin Rosenblum and Michael M. Platzman for appellants.

      Joseph C. Spano for respondents.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs. In view of the trial court’s factual findings, which were affirmed by the Appellate Division, we agree that plaintiffs are not entitled to recover compensation from defendants for their claimed losses on any of the theories presented.

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


text:
    In the Matter of Hugo C. Koch, Appellant, v New York State Division of Human Rights et al., Respondents.
    Decided January 19, 1982

      APPEARANCES OF COUNSEL

      Hugo Carl Koch, appellant pro se.

      Ann Thacher Anderson and Adele Graham for respondents.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division.

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


text:
    In the Matter of Edward J. Kiley, Appellant, v Frank Coveney et al., Constituting the Board of Elections of Suffolk County, Respondents, and Marquette L. Floyd, Intervenor-Respondent.
    Decided January 19, 1982

      APPEARANCES OF COUNSEL

      John Braslow for appellant.

      David Gilmartin, County Attorney (Frank J. Johnston, Jr., of counsel), for Suffolk County Board of Elections, respondent.

      Steven Schapiro for Marquette L. Floyd, respondent.
   OPINION OF THE COURT

On summary consideration, order affirmed, without costs, for the reasons stated in the memorandum by former Justices James D. Hopkins and Samuel Rabin at the Appellate Division.

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


text:
    In the Matter of Willie Memminger, Appellant, v Westbury Union Free School District et al., Respondents.
    Decided January 19, 1982

      APPEARANCES OF COUNSEL

      James R. Sandner for appellant.

      Robert F. Mulligan for respondents.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs (Holt v Board of Educ., 52 NY2d 625).

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


text:
    Public Service Mutual Insurance Company, Respondent-Appellant, v Fireman’s Fund American Insurance Companies, Defendant, and Insurance Company of North America, Appellant-Respondent.
    Decided January 19, 1982

      APPEARANCES OF COUNSEL

      Neal M. Glazer, Michael Majewski and Joseph D. Ahearn for appellant-respondent.

      Alvin P. Bluthman and Nathan Cyperstein for respondent-appellant.
   OPINION OF THE COURT

On summary consideration, order affirmed, without costs, for the reasons stated in the opinion by Justice Arnold L. Fein at the Appellate Division (82 AD2d 403).

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


text:
    Olive M. Winant, Appellant, et al., Plaintiffs, v Arnold Winant, Respondent. (Action No. 1.) Arnold Winant, Respondent, v Olive M. Winant, Appellant. (Action No. 2.)
    Decided January 19, 1982

      APPEARANCES OF COUNSEL

      Donald, B. Knight for appellant.

      Carl A. Binder for respondent.
   OPINION OF THE COURT

On summary consideration, orders affirmed, with costs, for the reasons stated in the memoranda at the Appellate Division.

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


text:
    In the Matter of Rynard Gundrum, on Behalf of Ingrid Gundrum, Respondent, v Gordon M. Ambach, as Commissioner of Education of the State of New York, et al., Appellants.
    Decided January 19, 1982

      APPEARANCES OF COUNSEL

      Robert D. Stone and Donald O. Meserve for Gordon M. Ambach, as Commissioner of Education of the State of New York, appellant.

      Thomas J. O’Connor for Board of Education of Berlin Central School District, appellant.

      David L. Gruenberg for respondent.
   OPINION OF THE COURT

On summary consideration, order reversed, with costs, and the petition dismissed. Although petitioner was entitled to review the determination of the board either by appeal to the Commissioner of Education or by a special proceeding under CPLR article 78, he chose to appeal to the commissioner rather than resort to the courts in the first instance. Accordingly, the sole question on this appeal is whether the commissioner’s determination was arbitrary and capricious (Matter of Strongin v Nyquist, 44 NY2d 943); the rationality of the determination by the board is not the focus for appellate review. Applying the proper standard, it cannot be said as a matter of law that the determination of the Commissioner of Education was without a rational basis.

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


text:
    Jacqueline E. Warren, Appellant-Respondent, v James Z. Warren, Respondent-Appellant.
    Decided January 19, 1982

      APPEARANCES OF COUNSEL

      Lynn Hanig for appellant-respondent.

      Noel Tepper for respondent-appellant.
   opinion of the court

On summary consideration, defendant’s cross appeal dismissed, without costs, upon the ground that defendant-appellant is not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]). On plaintiff’s appeal, order, insofar as appealed from, reversed, with costs, and case remitted to the Appellate Division for further proceedings in accordance with this decision. We agree with the Appellate Division that plaintiff’s payment of household expenses from December of 1969 to the commencement of this action in 1976 cannot be considered a transfer to defendant so as to entitle her to impose a constructive trust upon defendant’s bank account (Fischer v Wirth, 38 AD2d 611). The court, however, failed to consider the testimony of the parties regarding deposits into defendant’s savings account of moneys withdrawn from the parties’ joint checking account from December of 1969 to the commencement of this action in 1976. Such deposits, if any, may constitute transfers so as to entitle plaintiff to an increase in the amount of the constructive trust to the extent of her interest in said sums. Accordingly, we' remand for resolution of this question.

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


text:
    June Hart et al., Appellants, v Kenneth Sullivan et al., Respondents.
    Submitted January 11, 1982;
    decided January 19, 1982
   Motion to dismiss appeal granted to the extent that the appeal as against defendants Sullivan and Buker is dismissed, with costs and $20 Costs of motion, upon the ground that the order of the Appellate Division insofar as it pertains to those defendants does not finally determine the action within the meaning of the Constitution; motion otherwise denied.


text:
    Robert V. Kemp et al., Respondents, v Lakelands Precast, Inc., et al., Appellants. Lakelands Precast, Inc., Third-Party Plaintiff-Appellant, v Anrad Construction Corporation, Third-Party Defendant-Respondent.
    Submitted January 11, 1982;
    decided January 19, 1982
   Motions to dismiss the appeal denied.


text:
    Meritum Corporation, Respondent, v Edward A. Pichler, as Sheriff of the City of New York, Appellant, and Ploscowe Dweck & Sladkus et al., Respondents. Edward A. Pichler, as Sheriff of the City of New York, Third-Party Plaintiff-Appellant, v City of New York, Third-Party Defendant-Respondent.
    Decided January 19, 1982
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the grounds that (1) insofar as it is taken from so much of the order of the Appellate Division as affirmed the dismissal of the Sheriff’s cross claim against the City of New York, no substantial constitutional question is directly involved; and (2) the order appealed from otherwise does not finally determine the action within the meaning of the Constitution.


text:
    Charles P. Myles et al., Appellants, v Randall J. Ezick et al., Respondents.

      Decided January 19, 1982
   Appeal transferred, without costs, by the Court of Appeals sua sponte, to the Appellate Division, Third Department, upon the ground that 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).


text:
    In the Matter of the City of New York, Appellant, Relative to Acquiring Title to Real Property for a Project Known as College Point Industrial Park, Urban Renewal Project II. Peter Reiss et al., Respondents.
    Argued January 11, 1982;
    decided February 9, 1982

      APPEARANCES OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Peter A. Mound and Morris Einhorn of counsel), for appellant.

      Michael J. Greco and Ignatius John Melito for William A. Gull, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the matter remitted to that court for a review of the facts. The Appellate Division increased the plottage increment from 5% to 10% as a matter of law. This was error.

In determining an award to an owner of condemned property, the findings must either be within the range of the expert testimony or be supported by other evidence and adequately explained by the court (Matter of City of New York [A. & W. Realty Corp.], 1 NY2d 428, 432-433; Milsap v State of New York, 32 AD2d 586).

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

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


text:
    The People of the State of New York, Respondent, v Benjamin Gonzalez, Appellant.
    Argued January 4, 1982;
    decided February 9, 1982

      APPEARANCES OF COUNSEL

      Eleanor Jackson Piel for appellant.

      Robert M. Morgenthau, District Attorney William J. Comiskey and Mark Dwyer of counsel), for respondent.
   OPINION of the court

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant’s motion to suppress was predicated on two grounds, to wit: (1) the lack of probable cause to sustain his arrest; and (2) the arresting officers’ failure to inform defendant of their purpose and authority as required by CPL 140.15 (subd 2). At no time before the suppression court did defendant raise the issue that the weapon should have been suppressed because his arrest was effected in his home without a warrant and in the absence of exigent circumstances. (See Payton v New York, 445 US 573.) By not raising that particular issue within the context of his initial motion to suppress, defendant has failed to preserve it for appellate review. (People v Martin, 50 NY2d 1029.) Therefore, we need not reach the question whether the rule announced by the Supreme Court in Payton v New York (supra) should be given retroactive effect so as to invalidate arrests made prior to the date of that decision.

We have considered defendant’s remaining contention and have found it to be without merit.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Arthur D. Smith, Appellant.
    Argued January 4, 1982;
    decided February 9, 1982

      APPEARANCES OF COUNSEL

      George Grun, John F. Middlemiss, Jr., and Monroe A. Semble for appellant.

      Patrick Henry, District Attorney (Robert H. Cabbie of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and a new trial ordered.

We conclude that the trial court erred by refusing defendant’s request to charge robbery in the second degree. As noted by the dissenter in the court below, defendant’s confession, which was admitted into evidence as part of the People’s direct case, contained a statement to the effect that the weapon defendant was carrying during the robbery was a toy gun. This statement provided a reasonable basis in the evidence for the jury to conclude that the firearm displayed by defendant “was not a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged.” (Penal Law, § 160.15, subd 4; see CPL 300.50, subds 1, 2.) Therefore, defendant was entitled to a charge on the lesser offense of robbery in the second degree. Contrary to the People’s contention, the trial court’s charge concerning accomplice liability in no sense removed the effect of the prior error occasioned by the court’s refusal to charge the lesser offense.

We would only add that, by not raising before the suppression court the particular issue that his statements should have been suppressed as the result of an arrest effected in his home without a warrant and in the absence of exigent circumstances (see Payton v New York, 445 US 573), defendant has failed to preserve that issue for appellate review. (See People v Gonzalez, 55 NY2d 887 [decided herewith].)

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

Order reversed, etc.


text:
    Jane H. Cutler, Appellant, v Daniel I. Konover, Respondent, et al., Defendants.
    Argued January 6, 1982;
    decided February 9, 1982

      APPEARANCES OF COUNSEL

      David W. Silverman and Carolyn A. M. Campe for appellant.

      Joel Field for respondent.
   OPINION OF THE COURT

Memorandum.

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

In our view, the weight of the credible evidence supports the critical factual finding of knowledge made by the Appellate Division. We would only add that, in the posture in which this case comes to this court, there is an affirmed finding of fact that none of defendants’ activities contributed to plaintiff’s failure to obtain rezoning for her property. Inasmuch as this determination is supported by the record, our review is at an end. (NY Const, art VI, § 3, subd a; CPLR 5501, subd [b].)

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

Order affirmed, with costs, in a memorandum.


text:
    Sarah V. Mylroie, Appellant, v GAF Corporation, Respondent.
    Argued January 7, 1982;
    decided February 9, 1982

      APPEARANCES OF COUNSEL

      Henry Neal Conolly for appellant.

      George F. Carpinello for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, without costs, for the reasons stated in the memorandum at the Appellate Division.

We would only add that by accepting an award of workers’ compensation benefits, plaintiff forfeited the right to maintain an action at law on the theory of intentional tort. (Werner v State of New York, 53 NY2d 346.)

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

Order affirmed, without costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Juan Jimenez, Jr., Also Known as John Lopez, Appellant.
    Argued January 8, 1982;
    decided February 9, 1982
    APPEARANCES OF COUNSEL

      Erica Horwitz and William E. Hellerstein for appellant.

      Elizabeth Holtzman, District Attorney (Robert Cohen of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by reversing defendant’s conviction for assault in the second degree, dismissing that part of the indictment, and vacating the sentence imposed on that count. As so modified, the order of the Appellate Division should be affirmed.

The People failed to prove that the victim of the alleged assault suffered physical injury within the meaning of subdivision 6 of section 120.05 and subdivision 9 of section 10.00 of the Penal Law. Testimony that the victim suffered a one centimeter cut above her lip, without more, was not adequate to prove that the victim suffered either “substantial pain” (Matter of Philip A., 49 NY2d 198) or “impairment of a physical condition” (People v McDowell, 28 NY2d 373, 375).

Defendant’s other contentions are either not preserved for review or do not warrant reversal by this court.

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

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


text:
    In the Matter of State University of New York at Albany, Respondent, v State Human Rights Appeal Board et al., Respondents, and Judith Leibowitz, Appellant.
    Argued January 6, 1982;
    decided February 9, 1982

      APPEARANCES OF COUNSEL

      Margrethe R. Powers for appellant.

      Lewis E. Rosenthal and Sanford H. Levine for State University of New York at Albany, respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (81 AD2d 688).

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


text:
    City of New York et al., Appellants, v Local 333, Marine Division, International Longshoremen’s Association, Defendant, and Moran Towing & Transportation Co., Inc., Respondent.
    Argued January 7, 1982;
    decided February 9, 1982

      APPEARANCES OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Stephen P. Kramer of counsel), for appellants.

      Herbert M. Lord and Lizabeth L. Burrell for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Justice Samuel J. Silverman at the Appellate Division (79 AD2d 410). Question certified answered in the affirmative.

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


text:
    Chemprene, Inc., Appellant, v X-Tyal International Corp., Respondent.
    Submitted January 6, 1982;
    decided February 9, 1982

      APPEARANCES OF COUNSEL

      Andrew L. Spitz and J. George Spitz for appellant.

      Edmund V. Caplicki, Jr., for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs, by denying the defendant’s motion to compel plaintiff to select one attorney to represent him.

For the reasons stated by Justice Leon D. Lazer, in his partial dissent at the Appellate Division we agree that this was a matter within the discretion of the trial court and that the court did not abuse its discretion in this instance. We would note particularly that the nature of the claims involved in this case could suggest the possibility of diverse interests and a need for two attorneys. The conflicts, if any, which may arise by virtue of the representation of the plaintiff by more than one attorney of record should be resolved by the trial court during the course of the litigation. In passing upon any such conflict the factual or contractual complex out of which arises the reason for two attorneys representing one party (e.g., an insurance contract governing the relationship between insurer and insured) will be a factor for the court to consider in determining how its discretion in managing the trial should be exercised.

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

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


text:
    Brewery Workers Pension Fund et al., Respondents, v New York State Teamsters Conference Pension and Retirement Fund et al., Appellants.
    Argued January 7, 1982;
    decided February 9, 1982

      APPEARANCES OF COUNSEL

      Lawrence Vincent Kelly and Andrew J. Maloney for appellants.

      Bettina B. Plevan, Edward Silver, I. Philip Sipser and Susan Martin for respondents.
   OPINION OF THE COURT

Memorandum.

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

On the limited issues before this court, we agree with the Appellate Division that the plaintiffs have a contractual right to indemnification. Although the appellants urge that indemnification is only required when the litigation is initiated by third parties, the agreement does not expressly provide this nor can such a limitation be implied by a fair reading of its terms.

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of the Estate of Louis Katz, Deceased. Sylvia Oppenheim, as Executrix of Louis Katz, Deceased, Appellant; Samuel Katz, Respondent.
    Submitted January 8, 1982;
    decided February 9, 1982

      APPEARANCE OF COUNSEL

      Arthur J. Molins for appellant.
    No appearance for respondent.
   OPINION OF THE COURT

Order affirmed, without costs, for reasons stated in the Per Curiam opinion at the Appellate Division (81 AD2d 145).

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


text:
    The People of the State of New York, Respondent, v Mario Mandrachio, Appellant.
    Argued January 4, 1982;
    decided February 9, 1982

      APPEARANCES OF COUNSEL

      William E. Hellerstein for appellant.

      Mario Merola, District Attorney (Allen H. Saperstein and Billie Manning of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The defendant’s contention that the police failed to scrupulously honor his right to remain silent was not raised in the trial court and thus has not been preserved for review. Nor in the context of this record can it be said, as a matter of law, that the prosecutor should have interpreted the defendant’s remark that he could not afford an attorney as a request for assigned counsel. Significantly the defendant himself did not suggest that his comment should be so construed until the case was on appeal.

We have considered the defendant’s other contentions and have found them to be without merit.

Judges Jasen, Gabrielli, Wachtler and Fuchsberg concur; Judge Meyer concurs in result only; Chief Judge Cooke dissents and votes to reverse for the reasons stated in the dissenting opinion by Justice John Carro at the Appellate Division (79 AD2d 278, 284-286); Judge Jones taking no part.

Order affirmed in a memorandum.


text:
    In the Matter of Roy Green, Respondent, v Barbara Blum, as Commissioner of the New York State Department of Social Services, Appellant, et al., Respondent.
    Argued. January 7, 1982;
    decided February 9, 1982

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Clifford A. Royael and Shirley Adelson Siegel of counsel), for appellant.

      Catherine Charuk for Roy Green, respondent.
   OPINION OF THE COURT

Order reversed, without costs, for reasons stated in the dissenting memorandum by former Justice J. Clarence Herlihy at the Appellate Division (80 AD2d 668) and the determination of the State commissioner reinstated.

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


text:
    McLean Trucking Company, Appellant, v State Human Rights Appeal Board et al., Respondents.
    Argued January 8, 1982;
    decided February 9, 1982

      APPEARANCES OF COUNSEL

      Stephen A. Weingrad for appellant.

      Elaine Berger and Ann Thacher Anderson for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum of the Appellate Division (80 AD2d 809).

Concur: Chief Judge Cooke and Judges Jasen, Gabriet.lt, Wachtler, Fuchsberg and Meyer. Taking no part: Judge Jones.


text:
    Sumner Berlyn et al., Appellants, v Board of Education of the East Meadow Union Free School District, Respondent.
    Argued January 7, 1982;
    decided February 9, 1982

      APPEARANCES OF COUNSEL

      Noel D. Cohen and James R. Sandner for appellants.

      Henry A. Weinstein for respondent.
   opinion of the court

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (80 AD2d 572).

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


text:
    In the Matter of Merline McIntosh, Appellant, v Borough of Manhattan Community College et al., Respondents.
    Argued January 8, 1982;
    decided February 9, 1982

      APPEARANCES OF COUNSEL

      Allen C. Cohen for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (.Mary McCorry and Stephen J. McGrath of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

We agree that the issue considered by the Appellate Division is governed by Olsson v Board of Higher Educ. (49 NY2d 408; see, also, Matter of Hymes v Schechter, 6 NY2d 352) and that the college did not act capriciously or arbitrarily in refusing to round off petitioner’s 69.713 grade to a passing grade of 70.00.

Petitioner raised additional points at Special Term concerning violation of her right to due process and the correctness of her answers to two examination questions which her professor marked incorrect. She argues that in reversing Special Term the Appellate Division should have remanded for consideration of those additional points. We disagree, concluding that the record does not demonstrate any infringement of petitioner’s right to due process (Board of Curators, Univ. of Mo. v Horowitz, 435 US 78, 89-90; Matter of Sofair v State Univ. of N. Y. Upstate Med. Center Coll. of Medicine, 44 NY2d 475; see Tedeschi v Wagner Coll., 49 NY2d 652) and that an examination question which requires a student to choose between two possible correct answers as a means of testing the student’s judgment is, if subject to judicial review at all, neither arbitrary nor capricious (Board of Curators, Univ. of Mo. v Horowitz, 435 US 78, 91-92, supra; Matter of Gray v Niesley, 35 Misc 2d 837, 839).

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

Order affirmed, with costs, in a memorandum.


text:
    Incorporated Village of Ardsley, Respondent, v Town of Greenburgh et al., Appellants.
    Argued January 11, 1982;
    decided February 9, 1982

      APPEARANCES OF COUNSEL

      Allen S. Moller, Town Attorney, for appellants.

      Arthur T. Connick, Village Attorney, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs to appellant, to direct the deletion of the fourth decretal paragraph of the judgment of January 25, 1979, and as so modified, affirmed.

The Scarsdale Bath and Tennis Club could have been acquired for use of residents of the unincorporated area of the Town and of the Village of Ardsley to the exclusion of residents of other villages within the town only if (1) the town board had first created a park district pursuant to subdivision 4 of section 198 of the Town Law, or (2) the property had been jointly acquired by the town and the village as permitted by sections 240 and 244-b of the General Municipal Law. Here the town did neither, acquiring title in its own name and on behalf of the town alone. Such an acquisition was authorized only by subdivision 4 of section 220 of the Town Law and is, therefore, a town-wide improvement the costs and expenses of which are, as the Appellate Division held, assessable against all taxable property in the town. Nor are the villages other than Ardsley within the town necessary parties to the action (cf. City of New York v Long Is. Airports Limousine Serv. Corp., 48 NY2d 469), section 220 having given the town board authority to acquire a town-wide park without consultation with or leave by the villages within the town.

Modification is necessary, however, to delete so much of the judgment as holds invalid the covenant in the deed to the town restricting access to the park to two streets running through the village. Whether that covenant runs afoul of our holding in Atlantic Beach Prop. Owners’ Assn. v Town of Hempstead (3 NY2d 434) is not an issue whiqh the village, as distinct from residents of the village who may be injured by the increased traffic created by the park use, may raise, it having been stipulated at trial that no such problem was created by the covenant for the village as distinct from its residents. Absent a right or interest of the village directly affected by the covenant, there is no standing on the part of the village to seek a declaration of the invalidity of the covenant (Marcus v Village of Mamaroneck, 283 NY 325; see 24 Carmody-Wait 2d, NY Prac, § 147:28), and in any event no such declaration could be made in an action to which the grantors, in whose favor the restrictive covenant ostensibly runs, are not parties (City of New York v Long Is. Airports Limousine Serv. Corp., 48 NY2d 469, 475, supra; Carmody-Wait, op. cit., § 147:27).

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

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


text:
    In the Matter of the Claim of Ernesto J. Cruz, Appellant. Amsterdam Nursing Home Corp., Respondent; Philip Ross, as Industrial Commissioner, Appellant.

      Argued January 11, 1982;
    decided February 9, 1982

      APPEARANCES OF COUNSEL

      Gary J. Grayson for claimant-appellant.

      Robert Abrams, Attorney-General {John Q. Driscoll, Shirley Adelson Siegel and Paul S. Shemin of counsel), for Philip Ross, as Industrial Commissioner, appellant.

      William S. Busch, Jeffrey Q. Smith and Kathy H. Chin for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (79 AD2d 1081; see, also, Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459).

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


text:
    The People of the State of New York ex rel. John Buttery, Appellant, v Harold J. Smith, as Superintendent of Attica Correctional Facility, Respondent.
    Submitted January 25, 1982;
    decided February 9, 1982
   Appeal transferred, without costs, to the Appellate Division, Fourth Department, by the Court of Appeals sua sponte. 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).


text:
    County of Nassau, Respondent, v Town of Hempstead, Appellant.
    Submitted December 28, 1981;
    decided February 9, 1982
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that the “judgment” sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of L-Jo Amusements, Inc., Appellant, v City of New York et al., Respondents.
    Submitted December 28, 1981;
    decided February 9, 1982
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution (Matter of F. J. Zeronda, Inc. v Town Bd. of Town of Halfmoon, 37 NY2d 198).


text:
    James Spells et al., Respondents, v Eliza Foley et al., Appellants.
    Submitted February 8, 1982;
    decided February 9, 1982
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the stipulation for judgment absolute, under the facts of this case, is illusory and frustrates the very purpose of CPLR 5601 (subd [c]) (Goldberg v Elkom Co., 36 NY2d 914).


text:
    Wolf G. Tillman, Respondent, v Lincoln Warehouse Corporation, Defendant, and Transamerica Insurance Company, Appellant.
    Submitted January 4, 1982;
    decided February 9, 1982
   Motion to dismiss appeal granted and the appeal dismissed, without costs, upon the ground that the Appellate Division order granting a new trial, here brought up for review, did not “necessarily affect” the final judgment, as required by CPLR 5601 (subd [d]) (Cohen and Karger, Powers of the New York Court of Appeals, §79, p 344).


text:
    Linda R. Pugach, Appellant, v Liggett Group, Inc., et al., Respondents.
    Argued January 13, 1982;
    decided February 11, 1982

      APPEARANCES OF COUNSEL

      Martin L. Baron for appellant.

      James V. Kearney, Edward T. Krumeich and Amy E. Genkins for respondents.
   OPINION OF THE COURT

Memorandum.

The order should be affirmed, without costs, for the reasons stated in the memorandum at the Appellate Division. We would only add that this court has held subdivision 21 of section 292 of the Executive Law, as it existed prior to July 10, 1979, applicable to discharges of employees as well as to refusals to hire job applicants (e.g., City of New York v Cole, 48 NY2d 707; Matter of State Div. of Human Rights v Averill Park Cent. School Dist., 46 NY2d 950).

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

Order affirmed, without costs, in a memorandum.


text:
    Michele A. Simmen, Appellant, v State of New York, Respondent. Robert G. Simmen, Appellant, v State of New York, Respondent.
    (Claim No. 59476.)
    (Claim No. 59477.)
    Argued January 13, 1982;
    decided February 11, 1982

      APPEARANCES OF COUNSEL

      Salvador J. Capecelatro, Jr., and Frank A. Cissi for appellants.

      Robert Abrams, Attorney-General (Henderson G. Riggs, Shirley Adelson Siegel, Jeremiah Jochnowitz and John K. Powers of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

On the basis of our review of the record (NY Const, art VI, § 3, subd a; CPLR 5501, subd [b]), we conclude that the weight of the credible evidence supports the determination of the Appellate Division that the conduct of the police officer while in pursuit of another vehicle was not unreasonable under the circumstances and, therefore, no liability can be imputed to the State.

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

Order affirmed.


author: Chief Judge Cooke

text:
    Eva M. Cohan et al., Appellants, v Ralph Milano et al., Defendants, and Anthony Aurrichio, Inc., Respondent.
    Argued January 5, 1982;
    decided February 11, 1982

      APPEARANCES OF COUNSEL

      Richard T. Farrell for appellants.

      Nathan Cyperstein and Alvin P. Bluthman for respondent.
   OPINION of the court

Order affirmed, with costs, for reasons stated in the memorandum of the Appellate Division insofar as it was there concluded that there was no duty owed to plaintiffs by defendant-respondent, nor any breach of an asserted duty (79 AD2d 579).

Concur: Judges Jasen, Gabrielli, Wachtler and Meyer. Chief Judge Cooke dissents and votes to reverse in a separate opinion in which Judge Fuchsberg concurs. Taking no part: Judge Jones.

Chief Judge Cooke

(dissenting). I cannot join the majority in adopting the conclusion of the Appellate Division that the defendant property owner owed no duty to plaintiffs. I therefore dissent.

The Appellate Division said it had “grave doubt” that the property owner, Anthony Aurrichio, Inc., owed a duty to the plaintiffs. The evidence adduced at trial, however, was certainly sufficient to present a factual issue for the jury as to the existence of such a duty. There was ample evidence for the jury to conclude that the owner had both actual notice and constructive notice of sledding on the path that led to its driveway and parking lot. Plaintiff John Death testified that there was sledding “every time it snowed”. Ralph Milano, the driver of the car that collided with the plaintiffs, stated in a pretrial deposition introduced at trial that he had observed sledding “numerous times.” He testified at trial that he had brought this to Anthony Aurrichio’s attention “maybe once or twice.” In addition, as the Appellate Division itself noted, there was evidence that it was obvious that the path exited into the driveway and parking lot. In the face of the record here, it cannot be said as a matter of law that the accident was not foreseeable and that the owner owed no duty to take steps to prevent collisions between sledders and automobiles (see Scurti v City of New York, 40 NY2d 433; Basso v Miller, 40 NY2d 233). Nor am I persuaded that, as a matter of law, there were no precautions that could have been taken to prevent the accident.

Accordingly, I would reverse the order of the Appellate Division and remit to that court for a consideration of the facts.

Order affirmed, etc.


text:
    Jeffrey Koenigsmark, Appellant, v State of New York, Respondent.
    Argued January 14, 1982;
    decided February 11, 1982

      APPEARANCES OF COUNSEL

      John F. O’Mara for appellant.

      Robert Abrams, Attorney-General {Lew A. Millenbach and Shirley Adelson Siegel of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, without costs, for the reasons stated in the memorandum of the Appellate Division (80 AD2d 707).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Meyer. Judge Fuchsberg concurs in the following memorandum: Since the very recent decision in Topel v Long Is. Jewish Med. Center (55 NY2d 682, 685 [Fuchsberg, J., dissenting]) would have required that this case be dismissed, not just on the facts as the Court of Claims and the Appellate Division did, but on the law as well, a fortiori, I too vote to affirm though on constraint of that case.


text:
    The People of the State of New York, Respondent, v Robert Hunter, Appellant.
    Decided February 11, 1982

      APPEARANCES OF COUNSEL

      Barbara K. Friedman for appellant.

      Denis Dillon, District Attorney (Laurie Stein Hershey of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order affirmed. Defendant lacks standing to challenge the seizure of the weapon, as the doctrine of “automatic standing” is unavailable (People v Ponder, 54 NY2d 160) and defendant is unable to demonstrate a reasonable expectation of privacy in the area searched (see Rakas v Illinois, 439 US 128).

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


text:
    The People of the State of New York, Appellant, v Diane Jean Johnson, Respondent.
    Argued January 12, 1982;
    decided February 11, 1982

      APPEARANCES OF COUNSEL

      Donald O. Chesworth, Jr., District Attorney (Kenneth R. Fisher of counsel), for appellant.

      Michael E. O’Neill and Edward J. Nowak for respondent.
   OPINION OF THE COURT

Order reversed for the reasons stated in the dissenting opinion by Justice John J. Callahan at the Appellate Division (79 AD2d 203, 204) and case remitted to the Appellate Division, Fourth Department, for consideration of the facts (CPL 470.25, subd 2, par [d]; 470.40, subd 2, par [b]), this court having determined that the reversal by the Appellate Division was “upon the law and such facts which, but for the determination of law, would not have led to reversal” with respect to the issues reviewed (CPL 450.90, subd 2, par [a]).

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


author: Fuchsberg, J.

text:
    S.S.I. Investors Limited, Appellant, v Korea Tungsten Mining Co., Ltd., et al., Respondents, et al., Defendants.
    Submitted January 11, 1982;
    decided February 11, 1982

      APPEARANCES OF COUNSEL

      Matthew Dollinger for appellant.

      Jeffrey Barist and Robert W. Griffith for Nova-Park New York, Inc., N. V., respondent.

      Paul William Siegert for Korea Tungsten Mining Co., Ltd., respondent, precluded.
   OPINION OF THE COURT

Memorandum.

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

The purported “bid” submitted by appellants, including as an undifferentiated alternative to the specified figure of $556,000, “One dollar ($1.00) more than the highest bidding price you have received for the above property”, was not definite and certain. It did not specify which alternative was to be taken by the owner as the price offered; there was no determinative modifier, as, for instance, “whichever is the higher”.

Even if it were to be concluded that this deficiency was remedied by necessary implication, however, the “one-dollar-more” alternative, standing alone, was indefinite and meaningless without reference to the bid or bids of other bidders. Although in some circumstances a bid which by itself is incomplete may properly be made definite and certain by reference to external objective facts, in the context of sealed competitive bidding the necessary certainty cannot be imported by cross reference to the bids of others participating in the same competitive bidding over the objection of the owner or another bidder.

The very essence of sealed competitive bidding is the submission of independent, self-contained bids, to the fair compliance with which not only the owner but the other bidders are entitled. As the Appellate Division observed, to give effect to this or any similar bidding practice in which the dollar amount of one bid was tied to the bid or bids of another or others in the same bidding would be to recognize means whereby effective sealed competitive bidding could be wholly frustrated. In the context of such bidding, therefore, a submission by one bidder of a bid dependent for its definition on the bids of others is invalid and unacceptable as inconsistent with and potentially destructive of the very bidding in which it is submitted. On the only other occasion a similar ploy appears to have received judicial attention, over 80 years ago, it was likewise rejected (South Hetton Coal Co. v Haswell, Shotton & Easington Coal & Coke Co., CA 1898, 1 Ch 465).

Fuchsberg, J.

(concurring). I agree that appellant’s phrasing of its bid in the alternative, by its offer of “1. The total price of Five hundred and Fifty-six Thousand dollars ($556,000.00), anchor 2. One dollar ($1.00) more than the highest bidding price you have received for the above property”, is too indefinite to be enforceable (emphasis added).

But I prefer not to deal, as does the majority, with the case that would have confronted us had the offer been in the form of an unmistakable commitment to the higher of the two alternatives, thus rendering the bid readily capable of ascertainment (see Martin Delicatessen v Schumacher, 52 NY2d 105, 110).

Nor do I see any reason, in the absence of illegality, and in the context of a private sector business transaction in our relatively free enterprise society, to concern ourselves with the possible or potential effect of appellant’s novel offer on commercial competitive bidding. This problem, if it turns out to be one, could easily be abated by appropriate conditions imposed by those who invite bids, or, if the Legislature thought it of sufficient general interest, by statutory enactment.

Chief Judge Cooke and Judges Gabrielli, Jones, Wachtler and Meyer concur; Judge Fuchsberg concurs in a separate memorandum; Judge Jasen taking no part.

Order affirmed.

       We express no opinion as to whether, in the absence of an objection by another bidder, an acceptance of such a bid by the seller from bids on a nonpublic contract would thereafter be enforceable.


text:
    Ruth Halprin et al., Appellants, v 2 Fifth Avenue Company et al., Respondents.
    Argued January 13, 1982;
    decided February 11, 1982

      APPEARANCES OF COUNSEL

      Lionel Alan Marks for appellants.

      Arthur S. Linker, Charles A. Crum and Ambrose Doskow for respondents.
   OPINION OF THE COURT

Memorandum.

The order appealed from and order thereby brought up for review should be affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (75 AD2d 565).

There is no merit to appellant’s claim of unconscionability. Not only did the challenged rider commit appellants to pay no greater increase in rent than that determined by the conciliation and appeals board; it additionally accorded them an escape clause in the event of any such increase.

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

Order appealed from and order brought up for review affirmed, with costs, in a memorandum.