text:
    [663 NE2d 320, 639 NYS2d 1008]
    Daniel Rodriguez, Respondent, v New York City Housing Authority, Appellant.
    Decided December 28, 1995

      APPEARANCES OF COUNSEL

      Windels, Marx, Davies & Ives, New York City (Bevan M. Watt, Raymond T. Munsell, Thomas J. Mulligan and Dominic P. Morandi of counsel), for appellant.

      Thomas A. Stickel, New York City, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, the certified question answered in the negative, and defendant’s motion for summary judgment dismissing the complaint granted.

Plaintiff was robbed and beaten in a nighttime mugging by several unidentified perpetrators as he walked across an open area of a parking lot in defendant’s apartment complex. The attackers covered plaintiffs head with a blanket and beat him about the legs and face. Plaintiff alleged that the proximate cause of his injuries was that the only light in the parking lot was not functioning.

Supreme Court denied defendant’s motion for summary judgment dismissing the complaint, and the Appellate Division affirmed, by a 3-to-2 vote. That Court then granted leave to appeal to this Court on a certified question.

We conclude that on the record of this case, no genuine issues of fact concerning the malfunctioning light as the proximate cause of plaintiff’s injuries were proffered in response to defendant’s motion to dismiss. An examination of plaintiffs opposition motion papers reveals no evidentiary proof "in admissible form,” other than " ' "[m]ere conclusions, expressions of hope or unsubstantiated allegations or assertions,” ’ ” that the alleged insufficient lighting in the parking lot may have contributed to the criminal incident leading to plaintiff’s injuries (Ascher v Garafolo Elec. Co., 113 AD2d 728, 731 [quoting Krupp v Aetna Life & Cas. Co., 103 AD2d 252, 262 (citations omitted)], affd for reasons stated below 67 NY2d 637).

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur in memorandum.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, etc.


source: Caselaw Access Project

license: Public Domain

text:
    [663 NE2d 321, 639 NYS2d 1009]
    Stacy J. Stiuso, Appellant, v City of New York, Respondent, et al., Defendants.
    Argued November 29,1995;
    decided December 28, 1995

      APPEARANCES OF COUNSEL

      Anthony J. DeMarco, Jr., Brooklyn, and Schapiro & Reich (Perry S. Reich and Steven M. Schapiro of counsel), for appellant.

      Paul A. Crotty, Corporation Counsel of New York City (John Hogrogian and Pamela Seider Dolgow of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the case remitted to the Appellate Division for consideration of the facts pursuant to CPLR 5613.

Plaintiff suffered serious personal injuries while a passenger in an automobile traveling on Todt Hill Road in Staten Island. The driver of the vehicle swerved off the road when an animal darted in front of the car. The driver swerved onto what he thought was the shoulder or "swale,” a paved concrete strip abutting the asphalt roadway. He was unable to steer back onto the road, because one of his tires became stuck in the swale in the manner of a bowling ball in the gutter lane. The car eventually struck a boulder and went out of control.

Plaintiff commenced this action alleging, among other things, that the City negligently maintained the section of Todt Hill Road where the accident occurred. Specifically, plaintiff alleged that defendant had created a "crowning effect on the roadway surface such that [the roadway] was pitched into a depression on the shoulder,” which resulted in a hazard to vehicles. At trial, plaintiff’s reconstruction expert testified that the section of Todt Hill Road where the accident occurred was unsafe because of the near vertical drop-off or swale at the side of the road, a condition he represented was caused by defendant’s repeated resurfacing of the road. The expert opined that the proximate cause of the accident was the unsafe condition of the road.

After a bifurcated jury trial, defendant was found 65% negligent and the driver of the vehicle 35% negligent, and plaintiff was awarded $3,750,000 in damages. The Appellate Division reversed the judgment of Supreme Court and dismissed the complaint on the ground that defendant was under no duty to maintain unimproved land adjacent to the roadway, citing Tomassi v Town of Union (46 NY2d 91).

A municipality has the nondelegable duty of maintaining its roads and highways in a reasonably safe condition (see, Fried man v State of New York, 67 NY2d 271). This duty extends to conditions adjacent to the highway, and if the State or governmental subdivision undertakes to provide a paved strip or shoulder alongside the roadway, it must maintain that shoulder in a reasonably safe condition for foreseeable uses, including those uses resulting from a driver’s negligence or an emergency (see, Bottalico v State of New York, 59 NY2d 302, 305-306). On the other hand, where the paved road surface is "more than adequate for safe public passage,” travel beyond those limits on unimproved land adjacent to the roadway is generally not contemplated or foreseeable and therefore the municipality is under no duty to maintain it for vehicular traffic (see, Tomassi, supra, at 97).

The Appellate Division’s reliance on Tomassi was misplaced, as the Court could not have determined as a matter of law that the accident was caused by a condition existing on unimproved land.

Chief Judge Kaye and Judges Simons, Bellacosa, Smith, Levine and Ciparick concur; Judge Titone taking no part.

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


text:
    Beth Israel Hospital North, Respondent, v Castle Oil Corporation, Appellant.
    Submitted November 6, 1995;
    decided December 28, 1995
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order which affirmed the order of Supreme Court denying appellant’s motion for reconsideration, dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    In the Matter of Walter Dukes, Jr., Appellant, v Capitol Formation, Inc., et al., Respondents. Workers’ Compensation Board, Respondent.
    Submitted November 6, 1995;
    decided December 28, 1995
   On the Court’s own motion, appeal, insofar as taken from so much of the Appellate Division order as dismissed appellant’s appeal from that portion of the June 7, 1993 decision of the Workers’ Compensation Board that affirmed the November 12, 1991 decision of the Workers’ Compensation Law Judge made upon stipulation, dismissed, without costs, upon the ground that appellant is not a party aggrieved (CPLR 5511); appeal, insofar as taken from so much of the Appellate Division order as dismissed appellant’s appeal from that portion of the June 7, 1993 decision of the Workers’ Compensation Board that affirmed the April 25, 1992 decision of the Workers’ Compensation Law Judge and as affirmed the August 19, 1993 decision of the Workers’ Compensation Board, dismissed, without costs, upon the ground that that portion of the Appellate Division order does not finally determine the proceeding within the meaning of the Constitution. Motion for reargument, etc., denied. [See, 86 NY2d 810.]


text:
    In the Matter of Daniel Marconi, Respondent, v Board of Education of Seaford Union Free School District et al., Appellants.
    Submitted November 13, 1995;
    decided December 28, 1995
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and is not a nonfinal order of the type within the meaning of CPLR 5602 (a) (2). Motion for leave to supplement the joint record on appeal denied.


text:
    New York State Medical Care Facilities Finance Agency, Respondent, v Bank of Tokyo Trust Company, Appellant, et al., Defendant.
    Submitted October 30, 1995;
    decided December 28, 1995
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. CPLR 5602 (a) (2) does not apply to actions.


text:
    In the Matter of Manojkumar D. Patel (Admitted as Manoj Kumar Dahyabhia Patel), a Suspended Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted December 11,1995;
    decided December 28, 1995
   Appeal, insofar as taken from the October 16, 1990 Appellate Division order, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that it does not lie, appellant having previously taken an appeal to this Court (83 NY2d 903) from the same Appellate Division order from which his appeal is currently taken; appeal, insofar as taken from the April 6,1995 Appellate Division order, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.

Judge Smith taking no part.


text:
    In the Matter of Atul Patel, Appellant, v New York State Division of Human Rights et al., Respondents.
    Submitted September 11, 1995;
    decided December 28, 1995
   On the Court’s own motion, appeals dismissed, without costs, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601). Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York, Appellant, v Delaney Best, Respondent.
    Decided December 28, 1995
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed upon the ground that the modification by the Appellate Division was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to * * * modification” (CPL 450.90 [2] [a]).


text:
    The People of the State of New York, Respondent, v Harold Vasquez, Appellant.
    Submitted December 4,1995;
    decided December 28, 1995
   Motion by appellant to dismiss appeal as moot granted and appeal dismissed.


text:
    Rachmani Corporation et al., Appellants, v 19th Street Associates et al., Respondents.
    Submitted October 16,1995;
    decided December 28, 1995
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed the denial of the motion to amend the complaint, dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    John Ramsammy, as Preliminary Executor of the Estate of Julia Balgobin, Deceased, Respondent, v City of New York et al., Defendants, and Burns International Security Services et al., Appellants.
    Submitted November 20, 1995;
    decided December 28, 1995
   Motion, insofar as it seeks leave to appeal with respect to Yeshiva University, dismissed upon the ground that as to that party the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    In the Matter of Joseph W. Ryan, Jr., Respondent, v Joseph R. Caputo, as Comptroller of Suffolk County, Respondent, and Anton J. Borovina, as Special Counsel to the Suffolk County Legislature, et al., Appellants.
    Submitted September 11,1995;
    decided December 28, 1995
   Motion for leave to appeal denied. Cross motion for imposition of sanctions denied.


text:
    Monica Shkolnik, Appellant, v Hospital for Joint Diseases Orthopedic Institute et al., Defendants, and Ronald M. Krinick et al., Respondents.
    Submitted October 23,1995;
    decided December 28, 1995
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying appellant’s motion for reargument or, in the alternative, leave to appeal to the Court of Appeals, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.

Judge Ciparick taking no part.


text:
    [663 NE2d 588, 640 NYS2d 432]
    The People of the State of New York, Appellant, v Calvin Wolf, Respondent.
    Decided January 9, 1996

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney of New York County, New York City (Mary C. Farrington of counsel), for appellant.

      Jan Hoth-Uzzo, New York City, and Daniel L. Greenberg for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, the appeal to that Court reinstated, and the case remitted for prosecution of the appeal (see, People v Ramos, 85 NY2d 678).

Defendant was charged with criminal possession of a controlled substance in the third and fifth degrees. His motion to suppress the evidence was granted and the indictment was dismissed. The People served a timely notice of appeal but failed, although not without effort, to comply with the Appellate Division, First Department’s rule 600.8 (former [f]) (22 NYCRR 600.8 [former (f)]), requiring them to personally serve their appellate brief on a defendant not represented by counsel. Thus, the People’s motion to the Appellate Division to place the appeal on the Court’s calendar was denied and their appeal was dismissed.

This case is directly controlled by this Court’s recent decision in People v Ramos (85 NY2d 678, supra) wherein we invalidated the First Department’s rule. For the reasons stated in Ramos, the People here were under no obligation to personally serve defendant with their appellate brief and, thus, the dismissal of the People’s appeal on that ground should be reversed.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

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


text:
    Ruchama Gamiel, Appellant, v University Hospital, Defendant, and Philip Moskowitz et al., Respondents.
    Submitted November 20,1995;
    decided January 11, 1996
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]).


text:
    Joan C. Lipin, Appellant, v Robert M. Bender, Jr., et al., Respondents.
    Submitted December 18, 1995;
    decided January 11, 1996
   Appeal, insofar as taken from the Appellate Division’s September 14, 1995 order, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that that order does not finally determine the action within the meaning of the Constitution; appeal, insofar as taken from so much of the Appellate Division’s June 20, 1995 order as affirmed Supreme Court’s August 31, 1994 judgment, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that that portion of the June 20, 1995 order does not finally determine the action within the meaning of the Constitution; appeal otherwise dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    [663 NE2d 917, 640 NYS2d 876]
    Peckham Road Corporation, Appellant, v Town of Putnam Valley et al., Respondents, et al., Defendants.
    Submitted October 23,1996;
    decided January 11, 1996
   Motion by defendants Town of Putnam Valley and Town of Putnam Valley officials to dismiss appeal taken as against said defendants granted and appeal dismissed, without costs, upon the ground that as to those defendants the order appealed from does not finally determine the action within the meaning of the Constitution. On the Court’s own motion, appeal, insofar as taken as against defendants Wagon Productions, Inc. and Larry and Mark Tarnofsky, dismissed, without costs, upon the ground that as to those defendants the order appealed from does not finally determine the action within the meaning of the Constitution; appeal, insofar as taken as against defendants Richard N. Chassin, Esq., and Becker, Glynn & Melamed, Esqs., dismissed, without costs, upon the ground that no substantial constitutional question is directly involved.


text:
    [663 NE2d 905, 640 NYS2d 864]
    Ruth MacLeod, Respondent, v Pete’s Tavern, Inc., Doing Business as Pete’s Tavern, et al., Appellants, and Lillian Troy et al., Respondents.
    Decided January 16, 1996

      APPEARANCES OF COUNSEL

      Cyperstein & Gerstner, New York City (Fredda Siegel and Barbara M. Berk of counsel), for appellants.

      Wagner, Davis & Gold, P. C., New York City (Bonnie Reid Berkow of counsel), for Ruth MacLeod, respondent.

      Paul A. Crotty, Corporation Counsel of New York City (Ellen B. Fishman of counsel), for City of New York, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be reversed, with costs, defendant Pete’s Tavern’s motion for summary judgment granted, and the complaint and all cross claims against Pete’s Tavern dismissed. The certified question should be answered in the negative.

In May 1991, plaintiff Ruth MacLeod sustained injuries when she slipped and fell on the sidewalk in front of the restaurant and bar known as Pete’s Tavern. Pete’s Tavern has an outdoor cafe adjacent to the building which extends onto the sidewalk for approximately four to five feet and is bordered by a wrought iron guardrail located on the sidewalk.

On the day in question, plaintiff saw an unidentified waiter and group of people standing on the sidewalk outside the guardrail surrounding the outdoor cafe. Plaintiff stated that in order to pass it was necessary to walk around the waiter and people standing at the guardrail into the middle of the sidewalk, where she tripped and fell in a hole or depression in the sidewalk. She claimed not to have noticed the hole prior to falling because she was walking around the crowd gathered at the guardrail.

Plaintiff commenced this action seeking damages from, among others, the lessee of the abutting property, Pete’s Tavern, for personal injuries allegedly sustained from the fall. Pete’s Tavern moved for summary judgment dismissing the complaint and all cross claims against it. Supreme Court denied the motion and the Appellate Division, with one Justice dissenting, affirmed. We now reverse.

The question presented is whether the special use of the sidewalk represented by the outdoor cafe extended beyond the guardrail to include the public sidewalk area in which plaintiff fell. Neither the existence of the crowd nor the fact that one of defendant’s employees was seen on the sidewalk outside the rail creates a triable issue of fact in this respect.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur in memorandum.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order, insofar as appealed from, reversed, etc.


text:
    [663 NE2d 906, 640 NYS2d 865]
    The People of the State of New York, Respondent, v Anthony Dickerson, Appellant.
    Decided January 16, 1996

      APPEARANCES OF COUNSEL

      William Ramos, New York City, and Daniel Greenberg for appellant.

      Robert T. Johnson, District Attorney of Bronx County, Bronx (Howard B. Sterinbach of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was not entitled to be present at the side-bar conference held to determine whether his testimony "opened the door” to cross-examination about the underlying facts of a prior conviction previously precluded under a Sandoval ruling. The conference was not a material stage of the trial requiring defendant’s presence because the issue involved a purely legal discussion; it neither implicated defendant’s peculiar factual knowledge nor otherwise presented the potential for meaningful participation (see, People v Rodriguez, 85 NY2d 586, 591). Inasmuch as defense counsel did not object to the prosecutor’s cross-examination as to defendant’s guilt of the prior robbery on the ground that it exceeded the scope of the Sandoval ruling, defendant is precluded from later contending, on that ground, that the prosecutor cannot reap the benefit of defendant’s answer.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

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


text:
    In the Matter of Joseph A. Kaplan, Appellant, v Jerald Werlin, Respondent.
    Submitted December 4,1995;
    decided January 16, 1996
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed that portion of Supreme Court’s June 14, 1993 order denying in part petitioner’s motion to correct the judgment, dismissed upon the ground that that part of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Melissa O., a Person Alleged to be a Juvenile Delinquent, Respondent. Presentment Agency, Appellant.
    Submitted January 8, 1996;
    decided January 16, 1996
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte. The two-Justice dissent is not on a question of law and no substantial constitutional question is directly involved.


text:
    Andrew Schiffer, Appellant, v Tarrytown Boat Club, Inc., et al., Respondents.
    Submitted January 8, 1996;
    decided January 16, 1996
   Appeal, insofar as taken against defendant Thomas Kenealy, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that as to that defendant the order appealed from does not finally determine the action within the meaning of the Constitution; appeal otherwise dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Robert L. Schulz, Appellant, v Sheldon Silver et al., Individually and as Members of the Assembly of the State of New York, et al., Respondents.
    Submitted November 6, 1995;
    decided January 16, 1996
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order which affirmed Supreme Court’s order denying appellant’s motion for a preliminary injunction, dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the action/proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Sheldon Weinbaum et al., Appellants, v Mario M. Cuomo, as Governor of the State of New York, et al., Respondents.
    Submitted December 11, 1995;
    decided January 16, 1996
   Concur: Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Levine and Ciparick. Judge Smith dissents and votes to retain jurisdiction on the ground that the allegations of racial discrimination in the funding of City University of New York and State University of New York present substantial constitutional questions and support an appeal as of right pursuant to CPLR 5601 (b) (1).


text:
    In the Matter of Diane Willard, Respondent, v Town Board of the Town of Hamburg et al., Appellants.
    Submitted November 13,1995;
    decided January 16, 1996
   Motion, insofar as appellant Kesner seeks leave to appeal from the Appellate Division order affirming the denial of appellant Kesner’s motion for renewal, dismissed upon the ground that that order does not finally determine the proceeding within the meaning of the Constitution; motion by appellant Kesner for leave to appeal otherwise denied. Motion by appellant Town Board of the Town of Hamburg for leave to appeal denied.


text:
    [663 NE2d 907, 640 NYS2d 866]
    Yonkers Contracting Company, Inc., Appellant, v Port Authority Trans-Hudson Corporation, Respondent.
    Argued January 3,1996;
    decided February 8, 1996

      APPEARANCES OF COUNSEL

      Watt, Tieder & Hoffar, L. L. P. (Garry R. Boehlert, Robert G. Watt and Douglas C. Proxmire, of the Virginia Bar, admitted pro hac vice, of counsel), and Berman, Paley, Goldstein & Kannry, New York City (Alvin Goldstein of counsel), for appellant.

      Arthur P. Berg, New York City, Milton H. Pachter, Anne M. Tannenbaum and Valerie F. Mauceri for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff-appellant, Yonkers Contracting Company, Inc., as prime contractor, entered into a multimillion dollar agreement with defendant-respondent Port Authority Trans-Hudson Corporation (PATH) to perform emergency tunnel ventilation and evacuation work in Jersey City, New Jersey. Paragraph 17 of the contract authorized PATH’S Chief Engineer "to decide all questions of any nature whatsoever arising out of, under, or in connection with * * * the Contract (including claims in the nature of breach of Contract or fraud or misrepresentation * * *).” Paragraph 17 continued: "In any action against PATH relating to any such question the Contractor must allege in [the] complaint and prove such submission [to the Chief Engineer], which shall be a condition precedent to any such action.”

During construction of a slurry wall, a subcontractor encountered various delays and cost overruns, which Yonkers alleged were the result of PATH’S prior misrepresentations as to the actual subsurface conditions. When negotiations between the parties failed to resolve that disagreement, Yonkers, in June 1990, submitted a claim to PATH’S Chief Engineer pursuant to the provisions of paragraph 17. Before the Chief Engineer issued a preliminary report rejecting Yonkers’ claim, Yonkers in December 1990 commenced the instant lawsuit seeking costs and damages. PATH moved to dismiss the complaint on the ground that it failed to contain, as a condition precedent, the allegation that Yonkers’ claim had been submitted for decision by PATH’S Chief Engineer. Despite a letter from PATH urging it to amend its complaint to acknowledge the applicability of paragraph 17’s alternative dispute resolution (ADR) obligations, Yonkers, in what the Appellate Division characterized as "a calculated[,] tactical stance * * * to escape the bargained-for dispute resolution clause” (208 AD2d 63, 66), refused. Instead, Yonkers contended, as it does here, that because the contract’s ADR provision vested sole authority in a PATH employee to decide legal as well as factual questions without explicitly providing for any standard of judicial review, that provision violated public policy. Yonkers claimed it was thus entitled to a de nova review of the contractual controversy in a court of law.

Relying on Westinghouse Elec. Corp. v New York City Tr. Auth. (82 NY2d 47), the Appellate Division reversed the trial court’s denial of defendant’s motion and dismissed the complaint, concluding that "were we to accept Yonkers’ argument we would * * * be condoning a practice by which experienced parties negotiate a lengthy and highly technical agreement, only to have one of its legal provisions ignored and undone” (208 AD2d 63, 68). This Court granted leave to appeal.

As a general proposition, "parties to an arbitration contract are completely free to agree upon the identity of the arbitrators,” and New York courts have therefore regularly refused to disqualify arbitrators on grounds of conflict of interest or partiality "even in cases where the contract expressly designate[s] a single arbitrator * * * employed by one of the parties” (Matter of Astoria Med. Group [Health Ins. Plan], 11 NY2d 128, 133, 136 [Fuld, J.] [emphasis in original]). In fact, on no fewer than five separate occasions over the past 30 years this Court has approved ADR agreements between private contractors and public authorities like defendant PATH (Tufano Contr. Corp. v Port of N. Y. Auth., 18 AD2d 1001, affd, 13 NY2d 848; Ardsley Constr. Co. v Port Auth., 54 NY2d 876; Maross Constr. v Central N. Y. Regional Transp. Auth., 66 NY2d 341; Crimmins Contr. Co. v City of New York, 74 NY2d 166; Westinghouse Elec. Corp. v New York City Tr. Auth., 82 NY2d 47).

Three years ago, in Westinghouse, this Court'upheld a contractual clause authorizing an employee of defendant New York City Transit Authority to decide disputes under the contract on the ground that the employee’s decision was still subject to "some [form of] judicial review” (82 NY2d at 54). Given that paragraph 17 required Yonkers to allege submission of any unresolved claim to the Chief Engineer as a "condition precedent” to an action against PATH, a "natural and unstrained reading of its provisions indicates that both parties contemplated that the courts would have jurisdiction” to review the Chief Engineer’s decision (Crimmins Contr. Co. v Cayuga Constr. Co., 74 NY2d 166, 173 [construing ADR clause vesting engineer with authority to decide factual questions only]). Public policy, therefore, "has not been transgressed in this case” (Westinghouse, 82 NY2d at 54).

In view of our affirmance of the Appellate Division’s order dismissing the complaint with prejudice, we leave for another day the question whether the standard to be applied in reviewing factual and legal determinations made in accordance with an ADR clause like the one at issue here is that provided in CPLR article 75 (Matter of Siegel, 40 NY2d 687, 691), or some other standard (see, Tufano, 18 AD2d at 1001). Though paragraph 17 omits any mention of the particular standard of review to be applied in reviewing the Chief Engineer’s decision (compare, Westinghouse, 82 NY2d at 55), that omission alone does not render the ADR clause unenforceable as violative of New York’s public policy concerning the fair adjudication of disputes (Ardsley, supra).

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed, with costs, in a memorandum.


text:
    [663 NE2d 909, 640 NYS2d 868]
    Damion Rodriguez, an Infant, by His Mother and Natural Guardian, Saverina Galvan, et al., Respondents, v Oak Point Management, Inc., Appellant, et al., Defendants.
    Argued January 10, 1996;
    decided February 8, 1996

      APPEARANCES OF COUNSEL

      Jonathan R. Walsh, Elmsford, and William K. Capshaw for appellant.

      Leonard W. Krouner, Albany, and Mullen Morris & Lutzky, New York City (Joseph T. Mullen of counsel), for respondents.

      Sullivan & Liapakis, P. C., New York City (John M. Tomsky of counsel), for New York State Trial Lawyers’ Association, amicus curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, defendant Oak Point Management’s motion for summary judgment dismissing the complaint against it granted and the certified question answered in the negative.

Under the circumstances of this case, defendant had no duty to secure the front door of the residential apartment building it owned and operated in order to protect passersby from the threat of criminal actions by individuals engaging in drug-related activity in or around the building (see, Muniz v Flohern, Inc., 77 NY2d 869; Waters v New York City Hous. Auth., 69 NY2d 225). Although the infant plaintiff happened to be visiting one of the building’s tenants, his position was no different from that of any other passerby at the time he was shot on the street some 191 feet from the front of the building. At that point, his relationship to a building tenant was a mere fortuity having nothing to do with the circumstances surrounding the shooting. Accordingly, defendant Oak Point Management should have been granted summary judgment dismissing the complaint against it.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur in memorandum.

Order reversed, etc.


text:
    [663 NE2d 910, 640 NYS2d 869]
    The People of the State of New York, Respondent, v Terry L. Recor, Appellant.
    Submitted January 10, 1996;
    decided February 8, 1996
    APPEARANCES OF COUNSEL

      Alexander Lesyk, Public Defender of Franklin County, Chateaugay, for appellant.

      Richard H. Edwards, District Attorney of Franklin County, Malone, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

County Court, Franklin County, after a hearing, revoked appellant’s probation for an incident in August 1993 in which he was found to be intoxicated. That constituted a violation of one of the conditions — avoidance of alcohol — of his probationary sentence. The underlying conviction was for felony driving while intoxicated and aggravated unlicensed operation of a motor vehicle. Defendant had been arrested twice in the summer of 1993, once in July for harassment of his wife and again in August for obstructing governmental administration. He was intoxicated both times.

After the court revoked probation and sentenced defendant to a period of incarceration, the Appellate Division affirmed and a Judge of this Court granted leave to appeal. The only preserved issue is defendant’s request to adjourn the probation violation hearing to obtain a psychiatric evaluation for the purpose of possibly presenting the affirmative defense of mental disease or defect under Penal Law § 40.15.

While a defendant’s mental condition can be a relevant factor in a probation violation and revocation proceeding (compare, Matter of Huggins v Coughlin, 155 AD2d 844, affd for reasons stated below 76 NY2d 904), such a violation is not an "offense” triggering a right to present a formal Penal Law insanity defense (see, Matter of Darvin M. v Jacobs, 69 NY2d 957; Penal Law § 10.00 [1]; § 40.15). There is no legislative authorization to do that in this type of proceeding.

The County Court in this case, in any event, did take defendant’s medical history and hospital record into consideration and into evidence. The hearing court’s discretion, should the facts and circumstances of a particular proceeding warrant further probing, includes granting an adjournment or ordering an examination, as may be appropriate. Nothing suggests or warrants the conclusion, however, that the hearing court’s exercise of its discretion in this case, as affirmed by the Appellate Division, was an abuse as a matter of law (compare, People v Morgan, 87 NY2d 878).

Appellant’s other claims are unpreserved and, therefore, not reviewable.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed in a memorandum.


text:
    [663 NE2d 911, 640 NYS2d 870]
    The People of the State of New York, Respondent, v Joy Wosu, Appellant.
    Argued January 10, 1996;
    decided February 8, 1996
    APPEARANCES OF COUNSEL

      Kevin J. Bauer, Buffalo, and Joel L. Daniels for appellant.

      Kevin M. Dillon, District Attorney of Erie County, Buffalo (Kimberly A. Phelan and John J. DeFranks of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant’s convictions arose out of the rape and sexual abuse of twin seven-year-old girls, the daughters of a convicted codefendant. The indictment alleged that the criminal assaults occurred between November 1 and November 30, 1991. In an oral bill of particulars, the People later narrowed the time frame to the period "around Thanksgiving.” The evidence at trial showed that the memories of the child victims were keyed to a Thanksgiving-time turkey dinner at their father’s house.

During deliberations, the jury sent a note asking for the "actual date” of the charged crimes. The jury sought clarification of whether the offense occurred "actually that Thanksgiving Day or is the charge for November 1 through November 30, 1991, as the verdict sheet reads.” The Trial Judge simply instructed the jurors that the date of the incident was a question of fact for their determination. The jury convicted defendant and the Appellate Division affirmed the conviction, with two Justices dissenting. A Justice of the Appellate Division granted leave to appeal to this Court.

We agree with the Appellate Division majority (213 AD2d 967, 968) that defendant’s trial counsel did not specifically and adequately preserve the appellate claims now made, to wit: (1) that the Trial Judge’s supplemental instruction should have informed the jury that the incident occurred on or near Thanksgiving Day, consistent with the proof at trial, and (2) that it was error to instruct the jury that the date of the incident was a question of fact for their determination. Because the issues are beyond this Court’s power to review in these circumstances and defendant’s remaining claims are without merit, we affirm the order of the Appellate Division.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed in a memorandum.


text:
    In the Matter of Gary Farrell, an Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted January 22, 1996;
    decided February 8, 1996
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that denied that portion of appellant Farrell’s cross motion that sought appointment of a Special Master, dismissed upon the ground that that portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.

Chief Judge Kaye taking no part.


text:
    M.J.F.M. Kools, Doing Business as Kools De Visser, Plaintiff, v Citibank, N. A., Defendant.
    Decided February 8, 1996
   Certification of questions by the United States Court of Appeals for the Second Circuit, pursuant to section 500.17 of the Rules of the Court of Appeals (22 NYCRR 500.17), accepted and the issues presented are to be considered after briefing and argument.

Concur: Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith Levine and Ciparick.


text:
    Judith Teller, Appellant, v Bill Hayes, Ltd., et al., Respondents.
    Submitted November 6, 1995;
    decided February 8, 1996
   Motion, insofar as it seeks leave to appeal with respect to Bill Hayes, Ltd., dismissed upon the ground that as to that party the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion, insofar as it seeks leave to appeal with respect to William J. Hayes from that portion of the Appellate Division order which affirmed that portion of Supreme Court’s order denying plaintiff’s motion to amend her complaint, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal with respect to William J. Hayes otherwise denied.


text:
    [663 NE2d 1251, 641 NYS2d 221]
    Arthur Brown, Appellant, v Christopher Street Owners Corp. et al., Respondents.
    Argued January 11, 1996;
    decided February 13, 1996
    APPEARANCES OF COUNSEL

      Norman Leonard Cousins, New York City, for appellant.

      Anthony J. DeMarco, Jr., Brooklyn, and Sean J. Geoghan for Christopher Street Owners Corp., respondent.

      Curtis, Zaklukiewicz, Vasile, Devine & McElhenny, Merrick (Stephen J. Molinelli of counsel), for Courtfield Properties Management, Inc., respondent.

      Quirk & Bakalor, P. C, New York City (Thomas E. Tookey of counsel), for Anne Hack, respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff Arthur Brown was injured when he fell from the second-floor ledge of a cooperative apartment building in lower Manhattan. Defendant Anne Hack had hired plaintiff to wash the windows of her one-bedroom apartment and, at the time of his fall, plaintiff was attempting to wash the exterior of one of the windows.

Although Labor Law § 240 (1), the first section of Labor Law article 10 ("Building Construction, Demolition and Repair Work”), provides for absolute liability against any contractor or owner who fails to furnish an employee with the appropriate scaffolding, ladders, slings or other safety devices during the "erection, demolition, repairing, altering, painting, [or] cleaning” of a building, the "cleaning” encompassed under the statute does not include the routine, household window washing at issue here (Connors v Boorstein, 4 NY2d 172, 175). Unlike the painting of a house (Rivers v Sauter, 26 NY2d 260) or the cleaning of all the windows of a large, nonresidential structure such as a school (Koenig v Patrick Constr. Corp., 298 NY 313), the routine cleaning of the five windows of a single cooperative apartment by an individual engaged by the apartment owner is not the kind of undertaking for which the Legislature sought to impose liability under Labor Law § 240.

In light of the parties’ failure to address Labor Law § 202 ("Protection of the public and of persons engaged at window cleaning and cleaning of exterior surfaces of buildings”) in their briefs, we do not reach the question whether it provides the exclusive Labor Law remedy in cases such as this involving window cleaning (see, Terry v Young Men’s Hebrew Assn., 78 NY2d 978, 979).

Chief Judge Kaye and Judges Simons, Bellacosa, Smith, Levine and Ciparick concur; Judge Titone taking no part.

Order affirmed, with costs, in a memorandum.


text:
    [663 NE2d 1252, 641 NYS2d 222]
    The People of the State of New York, Respondent, v Clifford Howard, Appellant.
    Argued January 9, 1996;
    decided February 13, 1996

      APPEARANCES OF COUNSEL

      John A. Orando, Syracuse, Ivette Iza Zenner and Jacqueline B. Jones for appellant.

      James B. Vargason, District Attorney of Cayuga County, Auburn (Jon E. Budelmann and Karl J. Sleight of counsel), for respondent.

      Richard A. Brown, District Attorney of Queens County, pro se, Kew Gardens (Steven J. Chananie and Linda Cantoni of counsel), and Robert M. Morgenthau, District Attorney of New York County, pro se, New York City (Patrick J. Hynes of counsel), amici curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The statements of witnesses made during defendant’s prison disciplinary proceeding were not within the People’s control and therefore did not constitute Rosario material. The statements in question were embodied in transcripts that were generated and held by the State Department of Correctional Services. That agency has no duty to share such material with the District Attorney for the county in which the underlying conduct occurred. Further, although Correction Department facilities are at the end of the State’s law enforcement chain, the Correction Department itself is, in most respects, an administrative rather than a law enforcement agency. Under these circumstances, the People had no obligation to attempt to locate and gain possession of the material for the purpose of turning them over to the defense (see, People v Washington, 86 NY2d 189, 192-193; People v Flynn, 79 NY2d 779, 882).

Defendant’s other preserved contentions are lacking in merit. Contrary to defendant’s argument, there was support in the Wade hearing record for the Appellate Division’s finding that the inmate-eyewitness’s in-court identification had an independent source. Thus, that identification testimony was properly admitted at trial, regardless of whether or not the pretrial photo array that had been shown to the witness was unduly suggestive. Although the admission of testimony by a correction officer regarding that pretrial identification procedure was impermissible bolstering, the error was harmless in light of the clear and strong evidence of defendant’s guilt (see, People v Mobley, 56 NY2d 584). Finally, the circumstantial evidence offered at trial was, when viewed in a light most favorable to the People, legally sufficient to establish defendant’s guilt beyond a reasonable doubt (see, People v Norman, 85 NY2d 609, 620-622; People v Contes, 60 NY2d 620). Defendant’s related claim that the guilty verdict was against the weight of the evidence is beyond our limited power to review questions of law (see, People v Bleakley, 69 NY2d 490, 493).

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed in a memorandum.


text:
    Board of Managers of Alfred Condominium, Respondent, v Carol Management, Inc., et al., Respondents, et al., Defendants, and Jung/Brannen Associates, Architects, P. C., Appellant.
    Submitted December 11,1995;
    decided February 13, 1996
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Cross motion for the imposition of sanctions denied.


text:
    In the Matter of Bruno Brigandi, Appellant, v Finance Administrator et al., Respondents.
    Submitted December 11, 1995;
    decided February 13, 1996
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for reargument of motion for leave to appeal denied. [See, 86 NY2d 712.]


text:
    General Motors Corporation—Delco Products Division, Appellant, v Margarita Rosa, as Commissioner of the New York State Division of Human Rights, et al., Respondents.
    Submitted December 14, 1995;
    decided February 13, 1996
   On the Court’s own motion, appeal, insofar as taken from that portion of the Appellate Division order that affirmed so much of Supreme Court’s order as denied petitioner’s motion to depose Executive Deputy Commissioner Weikart, dismissed, without costs, upon the ground that that portion of the order does not finally determine the proceeding within the meaning of the Constitution; appeal otherwise dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed so much of Supreme Court’s order as denied petitioner’s motion to depose Executive Deputy Commissioner Weikart, dismissed upon the ground that that portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of William Johnson, Appellant, v New York City Police Department et al., Respondents.
    Submitted December 11,1995;
    decided February 13, 1996
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and is not a nonfinal order of the type within the meaning of CPLR 5602 (a) (2).


text:
    Brian Maginniss, Appellant, v City of New York et al., Respondents.
    Submitted November 27, 1995;
    decided February 13, 1996
   Motion, insofar as it seeks leave to appeal as against respondent City of New York, denied; motion, insofar as it seeks leave to appeal as against defendants Rafferty and Dignan, dismissed upon the ground that as to those defendants the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Peach Partners, a Joint Venture, Respondent, v A.T. Management Corp. et al., Appellants.
    Submitted November 20, 1995;
    decided February 13, 1996
   Motion by defendant Konstantinides for leave to appeal dismissed upon the ground that that party is not a party aggrieved (CPLR 5511). Motion, insofar as defendant A.T. Management Corp. seeks leave to appeal from an order of the Appellate Division denying its motion for reargument or, alternatively, leave to appeal to the Court of Appeals, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of the Estate of Cecilia Zielinski, Deceased. Barbara Moczulski, Appellant; Eugene J. Zielinski, Respondent. Eugene J. Zielinski et al., Respondents, v Barbara Moczulski, Appellant.
    Submitted December 4, 1995;
    decided February 13, 1996
   Motion for reargument granted, the October 24, 1995 order of dismissal vacated [see, 86 NY2d 861] and, upon reargument, motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action or proceeding within the meaning of the Constitution.


text:
    In the Matter of John P. McEvoy et al., Appellants, v Vincent J. Velella et al., as the Board of Elections in the City of New York, et al., Respondents.
    Submitted February 12, 1996;
    decided February 14, 1996
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    [663 NE2d 1253, 641 NYS2d 223]
    The People of the State of New York, Respondent, v Walter Washington, Appellant.
    Argued January 9, 1996;
    decided February 15, 1996

      APPEARANCES OF COUNSEL

      Richard Joselson, New York City, and Daniel L. Greenberg for appellant.

      Richard A. Brown, District Attorney of Queens County, Kew Gardens (Ellen C. Abbot and Steven Chananie of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

On October 16, 1991, Anthony Romano, an undercover police officer with three years experience in the Queens Tactical Narcotics Task Force (TNT), observed defendant exchange what appeared to be drugs (later determined to be cocaine) for money with two other individuals. Romano thereupon radioed his fellow officer, Evelyn Cardenales, who was also assigned to the Queens TNT and was working with Romano that day investigating illegal drug trafficking, as they had on many occasions in the past. Romano radioed that he had made a "positive observation” and gave a detailed description of the clothing and physical characteristics of the participants (including defendant) as well as their location. After receiving the radio call, Cardenales, who had been waiting in an unmarked car nearby acting as Romano’s backup, proceeded to the specified location and arrested defendant and the other participants. The sole issue before us is whether the People sustained their burden of proving probable cause for defendant’s arrest.

Under what has come to be known as the fellow officer’s rule, a "police officer is entitled to act on the strength of a radio bulletin * * * from a fellow officer * * * and to assume its reliability” (People v Lypka, 36 NY2d 210, 213). Moreover, when making a probable cause determination at a suppression hearing, a court may rely upon the hearsay testimony of the arresting officer alone since there is "no need for the People to also produce the undercover officer to support a finding of probable cause” (People v Petralia, 62 NY2d 47, 52). As defendant does not dispute that Romano (the undercover/nontestifying officer) claimed to have " 'personally witnessed the defendant commit the crime’ ” (id., at 54 [Kaye, J., dissenting]), Cardenales (the arresting/testifying officer) was justified in relying upon her fellow officer’s personal observation in arresting defendant.

Defendant nevertheless contends that the content of Romano’s statement that he had made a "positive observation” failed to adequately communicate the nature of the conduct he had just observed. Cardenales testified at the suppression hearing, however, that the phrase "positive observation” was commonly used among police officers to indicate an exchange of drugs for money and that she understood it to mean that Romano had personally witnessed such an exchange at the time. In People v Maldonado (86 NY2d 631), this Court upheld a probable cause determination based on an undercover officer’s radio call reporting a "positive buy” on the ground that since the arresting officer "interpreted 'positive buy’ to mean that narcotics had been sold,” the "arresting officer could reasonably believe * * * that defendant had sold narcotics to the undercover” (id., at 636). That analogy applies with equal force here and mandates rejection of defendant’s challenge to the sufficiency of the content of the radio call.

Defendant’s attempt to distinguish the present case from Maldonado on the ground that it involves a police officer’s mere observation of a drug transaction and not the purchase of narcotics by the undercover officer followed by an arrest or "buy and bust” (see, Maldonado, 86 NY2d at 636) can also be rejected. That Romano observed defendant engaging in a drug transaction as opposed to actually participating in it himself does not alter the fact that the personal observations of an experienced undercover officer such as Romano of the exchange of drugs for money, standing alone, establishes probable cause as an "[e]xchange of currency negates all but the most implausible explanations for the transaction, and thus conveys more than sufficient indicia of a drug sale to warrant an arrest” (People v McRay, 51 NY2d 594, 604).

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed in a memorandum.


text:
    [664 NE2d 498, 641 NYS2d 587]
    The People of the State of New York, Appellant, v John Merrill, Respondent.
    Argued January 11,1996;
    decided February 15, 1996

      APPEARANCES OF COUNSEL

      Howard R. Relin, District Attorney of Monroe County, Rochester (Wendy Evans Lehmann of counsel), for appellant.

      Edward J. Nowak, Public Defender of Monroe County, Rochester (Drew R. DuBrin of counsel), for respondent.
   OPINION OF THE COURT

Order reversed and case remitted to the Appellate Division, Fourth Department, for consideration of the facts pursuant to CPL 470.25 (2) (d) and 470.40 (2) (b) for the reasons stated in the dissenting memorandum at the Appellate Division (212 AD2d 987, 988).

Concur: Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick.


text:
    [663 NE2d 1255, 641 NYS2d 225]
    The People of the State of New York, Respondent, v Franklin B. Brown, Appellant.
    Argued January 11, 1996;
    decided February 15, 1996
    APPEARANCES OF COUNSEL

      Kimberly A. Jordan, Syracuse, for appellant.

      William J. Fitzpatrick, District Attorney of Onondaga County, Syracuse (Gary T. Kelder and Gordon J. Cuffy of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by vacating the conviction of burglary in the third degree and remitting to County Court, Onondaga County, for a new trial on that count, and, as so modified, affirmed.

Defendant was charged with burglary in the third degree and other crimes stemming from his entry into a service station at about 2:00 a.m. and theft of money from the cash register. At trial, defendant testified that he entered the service station solely with the intent to find the hose that was missing from the outdoor air compressor so that he could fill the slowly-leaking tire of the bicycle that he was riding. According to defendant, while searching for the hose, he encountered the open cash register drawer and, only then decided to take the money it contained. The trial court properly instructed the jury on the legal principle that the crime of burglary is committed when a person knowingly and unlawfully enters a building with the contemporaneous intent to commit a crime therein (see, People v Gaines, 74 NY2d 358, 362). During deliberations, however, the jury sent out the following query: "[t]o be guilty of burglary 3rd, must the 'intent’ be related to the property (money) subsequently taken? — Or, is the intent to take the hose relevant? If intent to remove the hose is [relevant] to the 'intent’ issue, does the intent to appropriate it for temporary use change anything?” The court responded to the note by stating, over defense objection: "[y/ou must determine whether or not there was authority or permission granted to do that with the hose, and whether or not that with the hose was unlawful. As to your question * * * does temporary use change anything? I think I have answered that by my last comment to you” (emphasis added).

Through its responsive instruction, the court erroneously indicated that it was within the jury’s province to determine whether temporary use of the air hose was a crime — a question of law reserved for the court. Absent any proof that use of the air was a service for which the station charged, temporary use of the hose would not amount to any crime (cf., Penal Law § 165.15 [4] [theft of services]; see also, Penal Law § 155.00 [1], [8]; § 155.05). Thus, as urged in the defense objection, the supplemental instruction was prejudicially misleading because it improperly allowed the jury to conclude that defendant’s intent to temporarily use the air hose could establish the "intent to commit a crime upon entry” predicate for a burglary conviction. Accordingly, the burglary conviction should be vacated, and a new trial held on that count (see, People v Gaines, 74 NY2d 358, 363, supra).

Defendant’s remaining preserved and reviewable contentions lack merit.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order modified and case remitted to County Court, Onondaga County, for further proceedings in accordance with the memorandum herein and, as so modified, affirmed.


text:
    In the Matter of the Estate of Beatrice C. Bauer, Conservatee. Herbert C. Silverman, Appellant; Eileen A. Curley et al., Respondents.
    Submitted December 18, 1995;
    decided February 15, 1996
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed the order awarding attorneys’ fees to the estate of Goidel, denied; motion, insofar as it seeks leave to appeal from the remainder of the Appellate Division order, dismissed upon the ground that the remaining portion of the order does not finally determine the proceeding within the meaning of the Constitution. Cross motion for the imposition of sanctions denied.


text:
    Board of Managers of Revere Condominium, Respondent, v Shahsultan Jaffer, Appellant.
    Submitted December 26, 1995;
    decided February 15, 1996
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, First Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]). Motion for a stay, etc., dismissed as academic.


text:
    In the Matter of Dudley Road Association et al., Appellants, v Adirondack Park Agency et al., Respondents. (Proceeding No. 1.) (And a Similar Proceeding.)
    Submitted December 18, 1995;
    decided February 15, 1996
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed the denial of petitioners’ motion for a preliminary injunction, dismissed upon the ground that that portion of the order does not finally determine the proceedings within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Joseph E. Kula et al., Appellants, v State Farm Fire and Casualty Company, Respondent.
    Submitted November 20,1996;
    decided February 15, 1996
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed so much of Supreme Court’s order as denied plaintiffs’ motion to amend their complaint and to add a party, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    Louise Mucciola, Individually and as Administratrix of the Estate of John B. Mucciola, Deceased, et al., Appellants, v City of New York, Respondent.
    Submitted December 18, 1996;
    decided February 15, 1996
   Motion for leave to appeal dismissed upon the ground that movant has failed to demonstrate timeliness as required by section 500.11 (d) (1) (iii) of the Rules of the Court of Appeals (22 NYCRR 500.11 [d] [1] [iii]).


text:
    Odell Reynolds et al., Respondents, v Linda Arnold, Appellant.
    Submitted February 5,1996;
    decided February 15, 1996
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601).


text:
    In the Matter of Kimmarie Salvati, Appellant, v John J. Salvati, Respondent.
    Submitted February 13, 1996;
    decided February 15, 1996
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the two-Justice dissent is not on a question of law (CPLR 5601 [a]).


text:
    Robert Schulz et al., Appellants, v New York State Executive, George Pataki, as Governor of the State of New York, et al., Respondents.
    Submitted February 5, 1996;
    decided February 15, 1996
   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 when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).


text:
    Carlos Zhagnay, Respondent-Appellant, v Royal Realty Co., Defendant and Third-Party Plaintiff-Appellant-Respondent. J.J. Valentino Construction, Inc., Third-Party Defendant-Respondent.
    Submitted December 11, 1995;
    decided February 15, 1996
   Motion by Royal Realty Co. for leave to appeal denied. Cross motion by plaintiff for leave to appeal dismissed upon the ground that plaintiff, having stipulated to a reduction in the amount of damages to which he is entitled, is not a party aggrieved (see, Dudley v Perkins, 235 NY 448, 457). Motion by J.J. Valentino Construction, Inc., for leave to appeal denied.


text:
    [664 NE2d 499, 641 NYS2d 588]
    Paul Grassi et al., Appellants, v Kurt Ulrich et al., Respondents.
    Decided February 20, 1996

      APPEARANCES OF COUNSEL

      Cynthia Feathers, Saratoga Springs, for appellants.

      Horigan, Horigan, Pennock & Lombardo, P. C., Amsterdam (James A. Lombardo of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the matter remitted to that Court for further proceedings in accordance with this memorandum.

Plaintiff Paul Grassi commenced this personal injury action against defendants for injuries to his neck, left arm and left hand allegedly sustained after the car driven by defendant Kurt Ulrich collided with plaintiff’s vehicle. Defendants stipulated that Ulrich’s negligence caused the accident, but presented expert proof to establish that plaintiff’s injuries were the result of a preexisting degenerative condition and not the accident, as plaintiff’s experts opined. The jury returned a verdict in defendants’ favor, and the trial court denied plaintiff’s motion pursuant to CPLR 4404 (a) to set aside the verdict as against the weight of the evidence.

The Appellate Division erred in curtailing its review of the denial of that motion after simply finding record evidence to support the jury’s verdict (see, Lolik v Big V Supermarket, 86 NY2d 744). Having found sufficient evidence to support the verdict, the Court was then required to consider the conflicting medical evidence presented by plaintiff and determine "whether ' "the evidence so preponderate^] in favor of the [plaintiff] that [the verdict] could not have been reached on any fair interpretation of the evidence” ’ ” (id., at 746, quoting Moffatt v Moffatt, 86 AD2d 864, affd 62 NY2d 875).

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur in memorandum.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, etc.


text:
    [664 NE2d 500, 641 NYS2d 589]
    The People of the State of New York, Respondent, v Beverly Job, Appellant.
    Decided February 20, 1996

      APPEARANCES OF COUNSEL

      William B. Carney, New York City, and Daniel L. Greenberg for appellant.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Maura E. Daly of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted of criminal sale of a controlled substance in the third degree, stemming from the sale of two vials of crack cocaine to an undercover police officer. At trial, defendant presented an agency defense, and testified that the officer asked her to obtain the crack on his behalf and offered to "get her high.” She additionally claimed that she had in actuality purchased four vials, keeping two for herself, and that she expected to have to barter sex at a later time in exchange for the officer providing her with some crack.

Defendant’s contention that the trial court should have expanded its charge on the agency defense under People v Andujas (79 NY2d 113) is without merit. The court correctly instructed the jury that it could consider any benefit received from the buyer as supportive of an agency defense, and in that context, the charge as a whole accurately provided the jury with the proper instruction (see, e.g., People v Fields, 87 NY2d 821; People v Warren, 76 NY2d 773).

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

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


text:
    [664 NE2d 501, 641 NYS2d 590]
    Walter G. Fischer, as Assignee of Jane C. Brown, Executrix of Ames Brown, Deceased, Appellant, v Panasian Communications, Inc., et al., Respondents.
    Argued January 9, 1996;
    decided February 20, 1996

      APPEARANCES OF COUNSEL

      Clarence S. Barasch, New York City, and Lionel A. Barasch for appellant.

      J. Martin Obten, New York City, for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, and the question certified by the Appellate Division answered in the affirmative.

Plaintiff Walter Fischer entered into a written brokerage agreement with deceased defendant Peter Ohm whereby Ohm agreed to pay plaintiff a finder’s fee of $300,000 if plaintiff successfully arranged a loan of $1.6 million for Peter Ohm, defendant Andrew Ohm, or any of the companies in which the individuals had an equity participation, including Panasian Communications, Inc. The agreement also provided that the amount of the finder’s fee would be adjusted if the loan was higher or lower than $1.6 million.

Thereafter, Fischer procured a $1.75 million loan for Panasian Communications, Inc. from Chase Manhattan Bank to finance Panasian’s acquisition of a television station. The loan to Panasian was guaranteed by a number of corporate defendants controlled by Peter and Andrew Ohm, including Pako Realty, Inc., which granted a mortgage to Chase on real property as a part of its security for its guarantee.

Plaintiff demanded payment of the finder’s fee due under the brokerage agreement, but was paid only $37,000. He then brought suit to recover the balance due under the agreement and to recover damages based on two dishonored checks issued by Panasian. Defendants answered and, inter alia, asserted a counterclaim alleging that pursuant to General Obligations Law § 5-531 the maximum brokerage fee allowable was $8,000, and therefore, plaintiff owed defendants a refund. Both parties moved for summary judgment. Supreme Court, inter alla, granted plaintiff’s motion for summary judgment against the estate of Peter Ohm to the extent that his recovery under the brokerage agreement was limited by General Obligations Law § 5-531, granted summary judgment against Panasian on the two dishonored checks and expressly severed those claims. The Appellate Division affirmed for the reasons stated in the opinion below, and granted plaintiffs motion for leave to appeal on a certified question.

General Obligations Law § 5-531 (1) provides:

"No person shall, directly or indirectly, take or receive more than fifty cents for a brokerage, soliciting, driving or procuring the loan or forbearance of one hundred dollars, and in that proportion for a greater or less sum, except loans on real estate security” (emphasis supplied).

Thus, if section 5-531 is applicable to the brokerage agreement here, the agreement is not enforceable because the finder’s fee amounts to 18% of the loan procured, thereby exceeding the statutory limitation of .5%. Plaintiff argues that because Pako executed a mortgage to secure its obligations under its guarantee of the loan and to secure any present or future debts Pako owed to Chase, the agreement was for a "loan[ ] on real estate security” and was thus not limited by General Obligations Law § 5-531. However, the transaction did not become a loan on real estate security merely because one of the corporate guarantors of the loan secured its guarantee obligation with a mortgage on real property. Panasian, the primary obligor, did not secure the loan with any interest in real property. Thus, the exemption for loans on real estate security does not apply.

Similarly unavailing is plaintiff’s argument that section 5-531 does not apply to private placement transactions between corporate borrowers and large institutional investors. Section 5-531 makes no express distinction between individual and corporate borrowers, and there is no exception for corporations comparable to General Obligations Law § 5-521, the provision which disallows corporations from asserting the usury defense (see, Scudder v Hoyt, 218 App Div 11, 15-16, affd 245 NY 522). Nor is there evidence of an intent to limit the scope of section 5-531 to consumer transactions in the legislative history to the 1984 amendment to General Obligations Law § 5-531 as plaintiff contends. That history (see, Attorney-General’s Legislative Program Mem; Attorney-General’s Bill Jacket, L 1984, ch 799) relies on the Scudder case for historical background on section 5-531. Scudder, however, expressly held that a corporation could plead the brokers’ fee statute as a defense (Scudder v Hoyt, supra), and the 1984 amendment did not expressly or impliedly create an exception to the general prohibition against charging excessive brokerage fees for transactions involving corporate borrowers. Rather, it created additional remedies and enforcement mechanisms for consumers charged excessive fees by brokers. Thus, the courts below correctly concluded that General Obligations Law § 5-531 is applicable to the brokerage agreement between plaintiff and Peter Ohm.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur in memorandum.

Order affirmed, etc.


text:
    [664 NE2d 503, 641 NYS2d 592]
    The People of the State of New York, Respondent, v Oliver Petrovich, Appellant.
    Argued January 9,1996;
    decided February 20, 1996

      APPEARANCES OF COUNSEL

      Stewart E. Sterk, New York City, for appellant.

      Denis Dillon, District Attorney of Nassau County, Mineóla (John F. McGlynn and Peter A. Weinstein of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted, after a jury trial, of murdering his parents. His defense was predicated on the theory that at the time of the crime defendant suffered from a mental disease or defect which deprived him of the capacity to appreciate the criminal consequences of his conduct. After both sides rested, the court inquired whether defendant wanted an instruction on the affirmative defense of extreme emotional disturbance to reduce the two counts of murder in the second degree to the lesser included offense of manslaughter in the first degree (see, CPL 300.50 [1]). Counsel responded affirmatively.

By the next day, however, defendant had a change of heart. Contrary to the advice of counsel, defendant informed the court that he only wanted three possible verdicts submitted to the jury under each murder count. Counsel advised the court that defendant mistakenly believed submission of the affirmative defense of extreme emotional disturbance would preclude a verdict of not guilty by reason of insanity. Counsel insisted that as defendant’s legal representative, he, not defendant, should decide what charges are to be requested.

After several recesses, during which time counsel conferred with defendant at length, the court asked defendant whether he understood his attorney’s position and appreciated the severity of punishment under a conviction of murder in the second degree as compared to manslaughter in the first degree. The court specifically, asked defendant whether he was rejecting his attorney’s advice and instead wanted to limit the possible verdicts to guilty of murder in the second degree, not responsible by reason of mental disease or defect, or not guilty. Defendant responded affirmatively. Notwithstanding that a reasonable view of the evidence supported a charge on the affirmative defense of extreme emotional disturbance, the court obtained defendant’s verification that he did not want the jury to be so charged. Over defense counsel’s strong objections, the court ruled that defendant’s decision was determinative as between the two of them, and only three possible verdicts under each murder count would be submitted to the jury. On this appeal, defendant argues that the Trial Judge abrogated his Sixth Amendment right to counsel by allowing him to preempt counsel’s advice and trial strategy regarding the extreme emotional disturbance defense without conducting a "searching inquiry.”

As between defendant and his counsel, the decision whether to request submission of the affirmative defense of extreme emotional disturbance to the jury falls to defendant. Manifestly, a verdict is dispositive of a defendant’s fate and, as this defendant recognized, the submission of the extreme emotional disturbance defense to the jury could indeed be determinative of the verdict. This is not unlike a defendant, who represented by counsel, retains the "ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify [on one’s] own behalf, or take an appeal” (Jones v Barnes, 463 US 745, 751; see also, People v White, 73 NY2d 468, 478, cert denied sub nom. White v New York, 493 US 859; People v Ferguson, 67 NY2d 383, 390; cf., ABA Standards for Criminal Justice, Defense Function, Standard 4-5.2 [a] [2d ed 1980 & 1986 Supp]).

Defendant was attempting to minimize the risk of conviction, and strongly indicated that he was opposed to the submission of the affirmative defense. In this regard, his decision did not implicate a matter of trial strategy or tactics. As is evident from the colloquy between defendant and the Trial Judge, defendant perceived that charging the jury on both murder in the second degree and manslaughter in the first degree provided two opportunities for the jury to convict, and he calculated that eliminating consideration of manslaughter increased his chance for an acquittal.

On appeal, defendant cannot complain that his miscalculation translates into a forced relinquishment of the right to counsel (see, People v Cabassa, 79 NY2d 722, 730-731, cert denied sub nom. Lind v New York, 506 US 1011). Not only did defendant’s counsel repeatedly and adamantly voice his disagreement with defendant’s decision but, as aptly noted by the Appellate Division, defense counsel continued his "active representation of defendant for the remainder of the trial” (202 AD2d, at 524) subsequent to defendant’s request not to submit the defense of extreme emotional disturbance to the jury.

Since it was clear that defendant was not forfeiting his Sixth Amendment right, the trial court was under no obligation to conduct a "searching inquiry” (see, People v Cabassa, 79 NY2d, at 730, supra; cf., People v Slaughter, 78 NY2d 485, 491). The trial court’s inquiry was aimed at establishing that defendant understood the nature of his request to limit the charges submitted to the jury. Satisfied that defendant understood, the trial court properly acceded to the request. That defendant now questions the wisdom of his decision cannot relieve him of the consequences of his request (accord, People v Baghai-Kermani, 84 NY2d 525, 533).

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed in a memorandum.


text:
    In the Matter of James H. Boxley, Also Known as Hank Shocklee, et al. (And Two Additional Actions.) Edward Chalpin et al., Appellants, v Dienst & Serrins et al., Respondents.
    Submitted December 4, 1995;
    decided February 20, 1996
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed Supreme Court’s order denying appellants’ motion to vacate or modify a prior Supreme Court order, dismissed upon the ground that that portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    Gerard A. Corsini, Appellant, v U-Haul International, Inc., et al., Respondents.
    Submitted November 27,1995;
    decided February 20, 1996
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument or, in the alternative, leave to appeal to the Court of Appeals, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    Gerard A. Corsini, Appellant, v U-Haul International, Inc., Respondents.
    Submitted January 16,1996;
    decided February 20, 1996
   Motion for leave to appeal dismissed as academic. Cross motion for the imposition of sanctions denied.


text:
    In the Matter of James D. Fleet, Appellant, v Geanine Scarola, Respondent.
    Submitted December 26,1995;
    decided February 20, 1996
   Motion for leave to appeal denied. Cross motion for the imposition of sanctions, etc., denied.


text:
    In the Matter of Charles Hinton, Appellant, v Melvin Williams, as Superintendent of the Gowanda Correctional Facility, et al., Respondents.
    Submitted January 22, 1996;
    decided February 20, 1996
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain the motion (NY Const, art VI, § 3 [b]; CPLR 5602).


text:
    Diane Maier, Appellant, v Howard Maier et al., Respondents.
    Submitted December 26,1995;
    decided February 20, 1996
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed so much of Supreme Court’s order as granted defendant’s cross motion for summary judgment dismissing the complaint, denied; motion otherwise dismissed upon the ground that the remaining portion of the order does not finally determine the action within the meaning of the Constitution.


text:
    Robert B. McDowell, Doing Business as Columbia Distributors, Respondent, v Atco Rubber Products, Inc., Appellant, et al., Defendant.
    Submitted February 13, 1996;
    decided February 20, 1996
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the two-Justice dissent is not on a question of law (CPLR 5601 [a]).


text:
    In the Matter of Daniel McGuinn et al., Appellants, v City of New York et al., Respondents.
    Submitted January 29,1996;
    decided February 20, 1996
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order which reversed and vacated that portion of Supreme Court’s order granting a temporary restraining order, dismissed upon the ground that that portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for a stay dismissed as academic.


text:
    Hwesu S. Murray, Appellant, v National Broadcasting Company, Inc., Respondent.
    Submitted December 26, 1995;
    decided February 20, 1996
   Motion for reconsideration of this Court’s May 12, 1992 order dismissing appellant’s appeal dismissed as untimely. [See, 79 NY2d 1036.] Motion for leave to appeal from the December 5, 1991, February 6, 1992 and March 10, 1992 orders of the Appellate Division dismissed upon the ground that movant has failed to demonstrate timeliness as required by section 500.11 (d) (1) (iii) of the Rules of the Court of Appeals (22 NYCRR 500.11 [d] [1] [iii]). Motion for other incidental relief denied.


text:
    In the Matter of Herbert Steed, Appellant, v Herbert Altman, as Justice of the Supreme Court, et al., Respondents.
    Submitted January 16,1996;
    decided February 20, 1996
   Motion for leave to appeal dismissed upon the ground that the issues presented have become moot. Motions for a stay and poor person relief dismissed as academic.


text:
    Kenneth T. Williams, Appellant, v Ken Harrington et al., Respondents. (Action No. 1.) Kenneth T. Williams, Appellant, v Echo Springs Water Company, Inc., et al., Respondents. (Action No. 2.)
    Submitted December 18,1995;
    decided February 20, 1996
   Motion, insofar as it seeks leave to appeal with respect to defendant Grey, dismissed upon the ground that as to that party the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion, insofar as it seeks leave to appeal with respect to the Harrington defendants, denied, with $100 costs and necessary reproduction disbursements.


text:
    [665 NE2d 655, 642 NYS2d 854]
    In the Matter of New York Association of Homes and Services for the Aging, Inc., et al., Respondents, v Commissioner of the New York State Department of Health et al., Appellants.
    Argued February 13, 1996;
    decided March 21, 1996

      APPEARANCES OF COUNSEL

      Dennis C. Vacco, Attorney-General, Albany (Victor Paladino, Victoria A. Graffeo and Peter H. Schiff of counsel), for appellants.

      Cadwalader, Wickersham & Taft, New York City (Peter G. Bergmann, Kathy Hirata Chin and William J. Natbony of counsel), for respondents.
   OPINION OF THE COURT

Order reversed, with costs, and petition dismissed for the reasons stated in the dissenting opinions by Justices D. Bruce Crew (212 AD2d 163, 170-172) and John T. Casey (212 AD2d 163, 172) at the Appellate Division.

Concur: Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick.