text:
    Milton I. Celestine et al., Respondents, v City of New York et al., Defendants; New York City Transit Authority et al., Respondents, and Long Island Rail Road Company, Appellant.
    Argued May 31, 1983;
    decided June 28, 1983

      APPEARANCES OF COUNSEL

      Thomas M. Taranto and Edward G. Lukoski for appellant.

      Cheryl R. Eisberg and Pamela Anagnos Liapakis for Milton I. Celestine and another, respondents.

      Steve S. Efron, Richard K. Bernard and John A. Murray for New York City Transit Authority, respondent.

      Robert L. Boydstun for Lima, Division of Clark Equipment Company, respondent.
   OPINION OF THE COURT

Order affirmed, with costs, and question certified answered in the affirmative for reasons stated in the memorandum at the Appellate Division (86 AD2d 592).

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer and Simons.


source: Caselaw Access Project

license: Public Domain

text:
    Edward F. McDonough et al., Appellants, v William J. Murphy, as Rensselaer County Executive, et al., Respondents.
    Argued June 8, 1983;
    decided June 28, 1983

      APPEARANCES OF COUNSEL

      Richard A. Hanft for appellants.

      Marvin I. Honig, County Attorney, for William J. Murphy, as Rensselaer County Executive, and another, respondents.

      Robert A. Smith for William J. Walsh and others, respondents.

      David L. Gruenberg for William F. O’Connor and others, respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division insofar as it relates to the appellants in this court (92 AD2d 1022).

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


text:
    Four Winds Hospital, Respondent-Appellant, v Anthony Keasbey, Appellant-Respondent, and May Keasbey, Respondent, et al., Defendant.
    Decided June 30, 1983

      APPEARANCES OF COUNSEL

      Charles G. Mills for appellant-respondent.

      Jon Paul Robbins for respondent-appellant.
   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 [g]), order modified, with costs to defendants, by granting a new trial as to defendant Anthony Keasbey for the reasons stated in the dissenting in part memorandum by Justice Samuel J. Silverman at the Appellate Division (92 AD2d 478, 480-481) and, as so modified, affirmed.

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


text:
    Lucille M. Scarborough et al., Appellants, v David S. Zimmon et al., Respondents, et al., Defendants.
    Argued June 1, 1983;
    decided June 30, 1983

      APPEARANCES OF COUNSEL

      Brian J. Barney for appellants.

      Richard S. Tubiolo for respondents.
   OPINION OF THE COURT

Memorandum.

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

In this case the Appellate Division did not reverse the order of Special Term as a matter of law, but rather in the exercise of its own discretion as a substitute for that of Special Term. That it was authorized to do, and we cannot conclude that in so doing it erred as a matter of law (Scarborough v Zimmon, 56 NY2d 784).

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Andrew J. Spano, in His Capacity as Clerk of the County of Westchester, Respondent, v Andrew O'Rourke, in His Capacity as County Executive of the County of Westchester, et al., Respondents, and Department of Motor Vehicles of the State of New York, Appellant.
    Argued June 8, 1983;
    decided June 30, 1983

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General {John M. Farrar and Peter H. Schiff of counsel), for appellant.

      Robert David Goodstein for Andrew J. Spano, as Clerk of the County of Westchester, respondent.

      Samuel S. Yasgur, County Attorney {Lester D. Steinman of counsel), for Andrew O’Rourke, as County Executive of the County of Westchester, and others, respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the case remitted to Supreme Court with directions to dismiss the action as moot.

On June 6, 1983, the Governor signed the bill enacting chapter 281 of the Laws of 1983. That enactment, effective immediately, amended subdivision 1 of section 205 of the Vehicle and Traffic Law to add Westchester County to the list of counties expressly excepted from the provisions of that subdivision. This amendment removed the last predicate for the arguments mounted by the county clerk and left no doubt as to the legal effectiveness for all purposes of the transfer from the County of Westchester to the State Department of Motor Vehicles of authority and responsibility for provision of motor vehicle services in that county. It is precisely the statutory amendment contemplated by the Appellate Division (93 AD2d 274). Accordingly, the dispute between the parties is now moot (cf. Sedita v Board of Educ., 43 NY2d 827; Matter of Adirondack League Club v Board of Black Riv. Regulating Dist., 301 NY 219).

The county clerk’s assertion that chapter 281 of the Laws of 1983 cannot take effect until approved in a referendum as required by section 1 (subd [h], par [1]) of article IX of the New York State Constitution is without merit. The enactment of chapter 281 did not constitute an amendment of the Westchester County Charter or Administrative Code. Specifically, there was no amendment of section 265.01 of the Administrative Code, which provides: “The County Clerk shall have all the powers conferred and duties imposed on him by law as well as all the powers conferred and duties imposed on the County Register prior to January 1,1938.” The county clerk still has the “powers conferred and duties imposed on him by law.” It is true that the substance of those duties is changed in consequence of the enactment of chapter 281. What is determinative, however, is that that substantive change was accomplished not by amendment of the wording of section 265.01, but by amendment of State law, namely, subdivision 1 of section 205 of the Vehicle and Traffic Law.

Moreover, as a matter of substance chapter 281 did not affect the functions or duties of the county clerk as a county officer. It affected only the activities which the county clerk had previously performed as agent of the Commissioner of Motor Vehicles (cf. Olmsted v Meahl, 219 NY 270). Nor is there any violation of home rule principles. Chapter 281, amending a State statute, deals with a matter of State concern and therefore, although it affects local concerns, does not implicate local government home rule powers (Matter of Kelley v McGee, 57 NY2d 522, 538).

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

Order reversed, etc.


text:
    In the Matter of Joseph P. Geary, Appellant, v Commissioner of Motor Vehicles of the State of New York, Respondent.
    Decided June 30, 1983

      APPEARANCES OF COUNSEL

      Robert J. Lane for appellant.

      Robert Abrams, Attorney-General (.Patrick O. McCormack 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 [g]), order affirmed, with costs, for reasons stated in the opinion by Justice John J. Callahan at the Appellate Division (92 AD2d 38). We note, however, that no inference should be drawn that, had substantial prejudice resulted to petitioner from respondent’s delay in scheduling the hearing, respondent would have been ousted of jurisdiction to revoke. In such circumstance, there would have been “at most an ‘erroneous exercise of authority’ since such delay would not divest the [commissioner] of jurisdiction.” (Matter of Sarkisian Bros. v State Div. of Human Rights, 48 NY2d 816, 818.)

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


text:
    Max Farash, as Agent for HVM Associates, II, Appellant, v James E. Smith, as Assessor of the Town of Perinton, Respondent, and Fairport Central School District, Intervenor-Respondent. (And Another Proceeding.)
    Argued May 31, 1983;
    decided June 30, 1983

      APPEARANCES OF COUNSEL

      G. Robert Witmer, Jr., Mark C. Davison and Martha H. Fleischer for appellant.

      Robert H. Antell and Nancy D. Peck for respondent.

      David M. Levy for intervenor-respondent.
   OPINION OF THE COURT

Memorandum.

The judgment appealed from and the order of the Appellate Division insofar as brought up for review should be reversed, with costs, and the order of Supreme Court, Monroe County, reinstated.

Petitioner, as agent and general partner of real estate partnerships, commenced these proceedings pursuant to article 7 of the Real Property Tax Law to review real estate tax assessments on several parcels of property located in the Town of Perinton, Monroe County. Six companion proceedings, which were consolidated with the instant proceedings at trial and before the Appellate Division, were settled prior to this appeal and there remain for our review only the tax assessments for an apartment complex known as Highview Manor I, which was completed in 1974, for the tax years 1974, 1975 and 1976, and for an apartment complex known as Highview Manor II, which was completed in 1975, for the tax years 1975 and 1976. The town assessed Highview Manor I for $2,197,250 and High-view Manor II for $1,835,800 for each of the years in question.

At a trial before a referee both appraisers testified to values lower than these assessments. The town’s appraiser, using the capitalization of income method of valuation, appraised Highview Manor I at $1,800,000, $1,700,000 and $1,760,000 for the years 1974, 1975 and 1976, respectively, and Highview Manor II at $1,625,000 and $1,690,000 for the years 1975 and 1976, respectively. Petitioner’s appraiser, using both the capitalization of income and the replacement cost methods of valuation, appraised Highview Manor I at $1,523,340 and Highview Manor II at $1,398,000 for the tax years. The trial court adopted the referee’s findings and reduced the assessments, fixing that of Highview Manor I at $1,530,946 and that of Highview Manor II at $1,394,425 for the years in issue. The Appellate Division reinstated the town’s assessments based on its finding that the referee erred in failing to give proper weight to the partnership agreements and bank loans which financed the construction of the complexes (Farash v Smith, 83 AD2d 785).

These properties were developed under partnership agreements made to finance and administer the construction of each complex. Pursuant to each agreement, petitioner Max Farash conveyed a parcel of land for the site of the complex and the remaining partners contributed $450,000 to the partnership. Petitioner Farash acquired a 50% interest for his contribution of land and the other partners jointly received the other 50% interest for their cash contributions. Construction of the complexes was financed by construction loans totaling $2,400,000 for Highview Manor I and $2,100,000 for Highview Manor II.

The Appellate Division found that the partnership agreements and construction loans “bear heavily” on the values of the two complexes and, in effect, treated them as evidence of arm’s length sales entitled to the “greatest weight” (see Plaza Hotel Assoc. v Wellington Assoc., 37 NY2d 273). Accordingly, using a value of $450,000 for land at each site and adding to it the construction loans, it found property values in excess of the assessments and therefore reinstated them. That was error.

While a court in determining fair market value may consider evidence of loans advanced on property during or near a particular tax status date when reviewing an assessment proceeding (see Matter of Trinity Place Co. v Finance Administrator of City of N. Y., 72 AD2d 274, affd 51 NY2d 890), such evidence standing alone is not entitled to “greatest weight” because the reasons behind the terms and amount of the loan may be uncertain and unrelated to market values (see Matter of River House Co. v Assessor of City of Binghamton, 56 AD2d 980; Matter of Elmhurst Towers v Tax Comm. of City of N. Y., 34 AD2d 570). Particularly is this so in the case of building loans which reflect anticipated future expenses. Here, both parties’ appraisers were aware of the amount of the loans and did not rely on them and the fact finder did not consider the evidence as controlling. Similarly, factors other than the value of the land contributed by petitioner Farash undoubtedly affected the size of the other partners’ contributions to the partnerships. Mr. Farash is a prominent and successful developer in the Rochester area and the opportunity to capitalize upon his expertise and reputation for success may well have inflated the amounts that the other partners were willing to invest, thereby rendering their contributions of little evidentiary value for assessment purposes.

While there is a presumption that tax assessments are valid (see Matter of Trinity Place Co. v Finance Administrator of City of N. Y., 72 AD2d 274, affd 51 NY2d 890, supra), the presumption was overcome in this case by the evidence Of both parties’ appraisers which fixed the market value of the properties below the assessments. Since both appraisers relied on the preferred capitalization of income approach to finding the market value and the trial court accepted that evidence and since the Appellate Division relied upon evidence of doubtful probative worth, the trial court’s valuation of the complexes accords more with the weight of the evidence than does the Appellate Division’s. We, therefore, exercise our power to choose between the trial court’s findings and the findings of the Appellate Division (see Grant Co. v Srogi, 52 NY2d 496, 510-511) and reverse the Appellate Division’s order and reinstate the trial court’s order establishing the assessments of High-view Manor I and Highview Manor II for the years in question.

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

Judgment appealed from and order of the Appellate Division, insofar as brought up for review, reversed, etc.


author: Meyer, J.

text:
    Myrna LaBow, Respondent, v Ronald LaBow, Appellant.
    Argued June 7, 1983;
    decided June 30, 1983

      APPEARANCES OF COUNSEL

      James Kaufman and Laurence S. Tauber for appellant.

      Myrna LaBow, respondent pro se.

   OPINION OF THE COURT

Memorandum.

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

Many conflicting inferences can be drawn from the record concerning whether, as the Appellate Division suggested, the father has willfully created the situation of which he now complains, ignoring his support obligations and forcing the mother to undertake persistent enforcement measures, or as Supreme Court found, three years ago, the mother was then obsessed with pursuing her ex-husband until he met all of her monetary demands. We deem it unnecessary to decide where the fault for this acrimonious situation lies, because the best interests of the child, the paramount concern in this custody proceeding (Eschbach v Eschbach, 56 NY2d 167, 171; Friederwitzer v Friederwitzer, 55 NY2d 89, 94) simply would not be served by a change in custody. The ability and fitness of the mother, the present custodial parent, to care for and raise her son is unquestioned; in addition, she has custody of the son’s siblings. The importance of stability and of avoiding further disruption in the living situation of this now 13-year-old son militate against transferring custody to the father.

Meyer, J.

(dissenting). The State fails to carry out its parens patriae function when it analyzes a custody issue solely in terms of the fitness of the parents and of keeping siblings together, and fails to consider the effect of the decision made upon the child who is the subject of the custody dispute.

Whether one parent or the other is more at fault for the financial war that has been waged between them, although not entirely beside the point, is of much less importance in evaluating the best interests of the child than the effect of that war upon the relationship between the child and the custodial parent. Three impartial court-appointed professionals have concluded that Steven was being emotionally damaged by his mother’s constant involvement of him in her monetary disputes with his father and have stated that Steven’s best interests not only will be served by a change in custody, but that change is imperative. Moreover, a seasoned Trial Judge, having seen and heard both parties and the child as well as the guardian and the impartial psychiatrists, has concluded that the mother’s testimony and actions, in court and out, confirm the need for the change.

Lest there be any question concerning the strength of the testimony and affidavits upon which the Trial Judge acted, I quote from it and from his decision.

The child psychiatrist first appointed, Dr. Frank J. Cur-ran, in his affidavit of October 4, 1979, “urgently” asked that Steven be permitted to live with his father. His reasons:

“It is not that Steven hates his mother, which he does not, but rather that she is making him sick. He does not understand what is really happening between his parents, and everything Mrs. LaBow says is confusing him much more.

“Were she to obtain regular psychiatric treatment for herself, I believe that Mrs. LaBow might at some time in the future calm down and be able to act a bit more normally. There is little reason, however, to hope that such a development will occur. At my suggestion Mrs. LaBow began seeing Dr. Hilda Falk earlier this year * * * Unfortunately, Mrs. LaBow stopped seeing Dr. Falk * * * after two visits.

^ ^ ^

“There is no question in my mind that Mrs. LaBow is not only damaging and interfering with Steven’s important relationship with his father, but she is also making Steven into a nervous, depressed child, developing in him crippling fears and neurotic guilt and anxiety to an extent that may not be reparable in the future if custody is not changed immediately, and I am fearful that he will now again have trouble in school.”

The guardian ad litem for Steven, Austin G. Lopez, in his affidavit of October 11, 1979, concluded that it was “[o]f critical importance * * * that Steven be permitted to live and reside with his father, now” (emphasis in original) and gave as his reasons that:

“Steven is unhappy and tense with his mother, Mrs. LaBow. He feels used by her in her constant attempts to get at his father. He senses he is her pawn, and he hates it.

* *

“In my dealings with Mrs. LaBow, I have found her to be obsessed, erratic, and irrational person. As Steven’s guardian, I am terribly concerned as to Mrs. LaBow’s true motives; I do not believe she has Steven’s best interests at heart * * * The most unfortunate part of it all she told her son in answer to his question: ‘what is more important, the children or the money; -she responded, the money,’ which upset Steven immensely.

“I believe that Steven, who is now terribly upset, will likely suffer severe, permanent consequences if he is forced to stay with his mother, whereas I am confident he will grow up healthier and much happier under his father’s care and custody.”

Because Mrs. _ LaBow had responded to Dr. Curran’s affidavit by characterizing him as “incompetent, biased and or senile,” the Judge who was scheduled to try the matter appointed Dr. Alan M. Levy from the New York County Supreme Court panel of child psychiatrists to examine the parties and their three children and report. Dr. Levy’s report of March 10, 1980, as had Dr. Curran’s earlier report, recommended a change of custody, stating that:

“If Steven’s custody is not transferred to his father I believe he would suffer considerably since. Mrs. LaBow is much more apt to act in an arbitrary fashion in regard to his visitations. In addition to this Mrs. LaBow will probably continue to raise the issue of financial deprivation on a regular basis and will use it to downgrade Mr. LaBow.

“I have discussed my recommendations with both Mr. and Mrs. LaBow. They are fully aware of them. I have informed Mrs. LaBow that I felt she should undertake some kind of therapy to assist her in overcoming some of her emotional conflicts.”

When the matter came on for trial on March 17,1980, it was agreed that the application for change in custody would be postponed for two years pending semiannual reports and “during that two year period the question of custody will in no way be affected by the support problem.” After the settlement was stated for the record the Judge interrogated both parents, the colloquy including Mrs. LaBow’s responses as follows:

“the court: I want to make sure Mr. and Mrs. LaBow that you understand that the child’s happiness is really the only consideration that is involved in this situation, and the only way that the child can feel comfortable is if he thinks his mother and father are comfortable with this arrangement; do you understand that, Mrs. LaBow?

“mrs. labow: Yes.

“the court: You will have to cut down and not talk about your husband whether you feel grieved or not. The important thing is for the child to feel better. That’s one of the things I’m going to be watching for in both of you; do you understand that?

“mrs. labow: Yes.”

Nonetheless, on May 30, 1980, Mrs. LaBow caused Mr. LaBow to be arrested near the Connecticut-Westchester border while Steven was in the car with him. The settlement was then vacated and the matter restored to the Trial Calendar. At trial the guardian testified that: “The only thing that I’ve asked Mrs. LaBow is not to use the children as pawns in her endeavor to harass Mr. LaBow or to try to get money. If she needed any money she should call me directly and that I would intercede on her behalf as far as the trust is concerned, but that she should not at any time use the children in that regard. I felt it was wrong. She did not react to that at all. When Mr. LaBow was arrested in upstate, I believe it was May 30th * * * I asked her about what happened and why did it happen, and wasn’t she aware of Justice Gabel’s order not to have that to happen to the children. She said that it was none of my business.”

Dr. Curran testified that he had been working closely with Dalton School, which Steven attended, because the school had refused to permit Steven to continue “unless he were having psychiatric treatment because he was so disturbed emotionally,” that Steven “was constantly concerned as to what was happening to him at home. If he went to see his father, the mother would create disturbances according to Steven,” that as to Mrs. LaBow’s emotional health “she was in too highly an excitable state to provide the proper tranquility for a little boy who is already having alot of emotional problems, and for that reason I said that I would recommend to the court that the custody be changed, that the father have custody, that the boy have regular ongoing visitations with the mother, but with the hope that the mother would get some psychiatric treatment; and that if that then occurred at some future date the boy could be returned to the custody of his mother”.

It was Dr. Levy’s “opinion that Mrs. LaBow was inflexible as a parent in certain important ways. That she was diminishing the image Steven had of his father by her continued derogation of him” and that continued custody by Mrs. LaBow “would be harmful to the child over the long run” because of her inflexibility and her unwillingness to consider any compromise.

The Trial Judge reached his conclusion that custody should be changed based upon his observations of Mrs. LaBow during trial: “Her facial expressions and actions while sitting in court were very revealing and her tirade on the stand corroborates the impression of the psychiatrist and of my own” and her refusal to let her attorney handle the collection of unpaid alimony and support. He noted that he questioned “whether maternal considerations enter into the use of the police to arrest the father of the child, the father to whom he looks up to and admires; whether bringing criminal charges against the father is in the best interest of Steven; attempts to disbar him,” and concluded that: “The mother seems to have a complete insensitivity as to the effect of her pursuit of this course of action, what the effects are that have been brought on this sensitive child. She is obsessed with what she considers her poverty.”

The Appellate Division, faced with the unanimity of two psychiatrists, the guardian and the Trial Judge, emphasized the fact that the latter had stated that he was not going to assess blame. It noted that neither he nor the psychiatrists nor the guardian had given “any real consideration to the fact that the defendant was willfully creating the very situation of which he complains, nor to the possibility that this was his purpose.” (86 AD2d, p 341.) It concluded that “Plaintiff’s obsession [sic] has plainly been brought about by defendant’s conduct * * * if defendant were to comply with his obligation, the issue would disappear from the case.” (86 AD2d, p 342.)

The purpose of a custody proceeding is not the punishment of either parent for failure to comply with a prior court order. The contempt powers of the court are quite sufficient to that end. Rather, in a custody proceeding “the court shall determine solely what is for the best interest of the child, and what will best promote its welfare and happiness, and make award accordingly” (Domestic Relations Law, § 70). A serious question concerning Steven’s best interests might exist were his father’s purpose to create a situation which would result in a change of custody, for by so doing he would have demonstrated the same insensitivity to Steven’s welfare as has his mother. However, the record refutes such a conclusion completely. What precipitated the first motion was the threat of Steven’s expulsion from the Dalton School because he was so emotionally disturbed. Had defendant father’s purpose been a change of custody, he would not have stipulated to the settlement of that motion, which called for Steven to remain in his mother’s custody for two years, subject to her agreement not to involve Steven in her financial problems with her husband and subject to semiannual reports to the court. And had plaintiff truly considered the best interests of Steven she could not, less than three months later and without any new precipitating financial cause, so far as the record reveals, have subjected Steven to the trauma of the arrest of his father in his presence.

Although the Appellate Division is not bound by the Trial Judge’s conclusion, we have only recently reiterated that “ The findings of the nisi prius court must be accorded the greatest respect’ ” (Eschbach v Eschbach, 56 NY2d 167, 173, quoting from Matter of Irene O., 38 NY2d 776, 777). To reverse without regard to the Trial Judge’s clearly articulated assessment of plaintiff based on courtroom observation of her words and actions and in the face of unanimous contrary professional opinion, on the “possibility” that defendant father may have been improperly motivated, a possibility that the record clearly refutes, is an abuse of discretion as a matter of law. Nor does the fact that a change in custody would separate Steven from his sisters mitigate against that conclusion for the obvious reason that, had the sisters provided any counterbalance to what the Appellate Division characterized as “plaintiff’s obsession,” Steven’s severe emotional disturbance would not have developed in the first place.

Accordingly, I would reverse and reinstate the order of Supreme Court, New York County, awarding custody of Steven to his father.

Chief Judge Cooke and Judges Jasen, Jones and Wachtler concur; Judge Meyer dissents and votes to reverse in an opinion in which Judge Simons concurs.

Order affirmed, with costs, in a memorandum.


text:
    James F. Watling, Appellant, v Hiawatha Plaza Associates et al., Respondents.
    Decided June 30, 1983

      APPEARANCES OF COUNSEL

      Kenneth D. Whitelaw for appellant.

      Michael Felice for respondents.
   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 [g]), order reversed, with costs, and complaint reinstated. In light of defendant’s concession that paragraph 7 of the commission agreement was incorporated at its insistence, it was error for the Appellate Division to construe it strictly against the plaintiff. There are, therefore, triable issues of fact.

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


text:
    Corinno Civetta Construction Corp., Appellant, v J. Baranello & Sons et al., Respondents.
    Submitted June 6, 1983;
    decided June 30, 1983
   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 (see Til v O’Brien, 40 NY2d 902; Cohen and Karger, Powers of the New York Court of Appeals, § 36, subd [c], p 144).


text:
    Patricia Entwistle, Respondent, v Charles Entwistle, Appellant.
    Decided June 30, 1983
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution and upon the further ground that appellant is not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]).


text:
    Leonard Gray et al., Appellants-Respondents, v B. R. Trucking Co., Respondent-Appellant.
    Submitted June 13, 1983;
    decided June 30, 1983
   Motion for reargument dismissed for untimeliness, with $20 costs and necessary reproduction disbursements. (22 NYCRR 500.9 [f], Rules of Practice of Court of Appeals.) [See 59 NY2d 649.]


text:
    Frances Brady, as Administratrix of the Estate of Robert Brady, Deceased, Appellant, v Reynolds Printasign Company et al., Respondents.
    Decided July 5, 1983

      APPEARANCES OF COUNSEL

      Remo J. Acito and Elinore B. Klein for appellant.

      Robert H. Fischler for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the case remitted to the Appellate Division so that it may reconsider the matter and may exercise its own discretion.

The Appellate Division erred in holding, as a matter of law because the only excuse tendered by plaintiff constituted law office failure, that Special Term had abused its discretion in granting plaintiff’s motion to vacate defendants’ 90-day demand (CPLR 3216) and denying defendants’ motion to dismiss the complaint for plaintiff’s failure to serve a note of issue in response to that demand (Miskiewicz v Hartley Rest. Corp., 58 NY2d 963).

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed, with costs, and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the memorandum herein.


text:
    In the Matter of Joseph Spagnuolo, Appellant, v Robert J. McGuire, as Police Commissioner of the City of New York, Respondent.
    Decided July 5, 1983

      APPEARANCES OF COUNSEL

      Raymond E. Kerno for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Helen P. Brown of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

The record contains substantial evidence, in the testimony by Sergeant Jacobsen and petitioner’s own admission at the disciplinary hearing, to support the finding by respondent commissioner that petitioner without just cause failed and neglected promptly to obey the order of his superior to bring the patrol car in which they were riding to a stop at the curb, continuing instead to drive the vehicle to the police statioñ. Nor is there merit to petitioner’s claim that the penalty of loss of four days’ pay and benefits and seven days’ vacation was excessive (Matter of Pell v Board of Educ., 34 NY2d 222).

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), judgment affirmed, with costs, in memorandum.


text:
    Amherst & Clarence Insurance Company et al., Respondents, v Cazenovia Tavern, Inc., Appellant, et al., Defendants.
    Decided July 5, 1983

      APPEARANCES OF COUNSEL

      Stephen J. Ransford and William S. Andrews for appellant.

      G. Robert McAllister for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the case remitted to Supreme Court with direction to dismiss the action as moot.

This action is for a declaration as to the obligation of the insurer to defend appellant in an underlying tort action. Nothing in the submissions of the parties suggests that the intervening settlement of the tort action has not rendered the issues in the declaratory judgment action moot.

Any agreement or understanding the parties may have reached not to disclose to our court the fact or circumstances of such settlement, relating as the settlement does to the continuing viability of the appeal, will be disregarded. The attorneys for litigants in our court have an obligation to keep the court informed of all such matters pertinent to the disposition of a pending appeal and cannot, by agreement between them, foreclose its disposition on the ground of mootness or otherwise predetermine the scope of our review.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed, without costs, and case remitted to the Supreme Court, Madison County, with directions to dismiss the action as moot in a memorandum.


text:
    The People of the State of New York, Respondent, v Ben Cruz, Appellant.
    Argued June 9, 1983;
    decided July 5, 1983

      APPEARANCES OF COUNSEL

      Michael L. Cirrito, Murray Richman, Mary Ellen C irrito- and Martin I. Saperstein for appellant.

      Mario Merola, District Attorney (Anthony R. Dellicarri and Billie Manning of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed. No objection having been taken, the issue as to the testimony of the Assistant District Attorney is not subject to our review; and, there being sufficient evidence in the record to support the findings made below, there is nothing further for this court to review (see, e.g., People v Harrison, 57 NY2d 470).

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


text:
    Parker 86th Associates et al., Appellants, v City of New York et al., Respondents.
    Argued June 6, 1983;
    decided July 5, 1983

      APPEARANCES OF COUNSEL

      Edward R. Korman, Charles G. Moerdler, Alan Kolod, Naomi Siegel and James Falick for appellants.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Gary Schuller, Leonard Olarsch and Joseph A. Vogel of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Justice Max Bloom at the Appellate Division (93 AD2d 388).

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


text:
    The People of the State of New York, Respondent, v Renard Smith, Appellant.
    Argued June 9, 1983;
    decided July 5, 1983

      APPEARANCES OF COUNSEL

      Monica Drinane and William E. Hellerstein for appellant.

      Robert M. Morgenthau, District Attorney (Brian E. O’Donoghue and Mark Dwyer of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

We agree with both the trial court and the Appellate Division majority that the juror’s conduct did not rise to the level of the “conscious, contrived experimentation” found to be misconduct in People v Brown (48 NY2d 388, 394). Rather, the juror’s evaluation of the ability to observe the interior of an automobile through its rear window, made while walking to dinner between deliberations and again while riding in a bus with jurors to the hotel after being sequestered, is properly classified as an everyday experience and, therefore, not misconduct (see, generally, United States ex rel. Owen v McMann, 435 F2d 813, 817-818, cert den 402 US 906).

The better practice is for a Trial Judge presented with evidence of such action by a juror to hold a hearing in order to ascertain exactly what transpired, rather than to rely upon attorneys’ affidavits concerning what the juror said he did (cf. People v Brown, 48 NY2d 388, 392, supra; State v Graham, 422 So 2d 123 [La], app dsmd sub nom. Graham v Louisiana, _ US _, 103 S Ct 2419).

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

Order affirmed in a memorandum.


text:
    First National State Bank of New Jersey, Appellant, v Irving Trust Company, Respondent, et al., Defendants.
    Argued June 9, 1983;
    decided July 5, 1983

      APPEARANCES OF COUNSEL

      Steven J. Glassman, Bruce Margolius and Peter A. Jaffe for appellant.

      Peter H. Kaminer, Stephen A. Weiner and Thomas F. Clauss, Jr., for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (91 AD2d 543).

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


text:
    In the Matter of Coleco Industries, Inc., Respondent, v State Tax Commission, Appellant.
    Decided July 5, 1983

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Maurice K. Peaslee and Peter H. Schiff of counsel), for appellant.

      Joseph M. Persinger 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 [g]), judgment affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (92 AD2d 1008; see, also, American Int. Group v Tully, 59 NY2d 832).

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


text:
    In the Matter of a Grand Jury Subpoena Served Upon Bekins Record Storage Co., Inc. Petitioner A et al., Appellants; Robert M. Morgenthau, as District Attorney of New York County, Respondent.
    Submitted June 20, 1983;
    decided July 5, 1983
   Motion to dismiss the appeal denied.


text:
    Blanche Migdal, Respondent, v Harry Migdal, Appellant.
    Submitted June 13, 1983;
    decided July 5, 1983
   Motion to dismiss the appeal granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that appellant is not aggrieved'by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]).


text:
    Andrew C. Preston, Appellant, v State of New York, Respondent.
    (Claim No. 61910.)
    Decided July 7, 1983

      APPEARANCES OF COUNSEL

      David Henry Sculnick and Nicholas E. Tishler for appellant.

      Robert Abrams, Attorney-General (Michael S. Buskus and Peter H. Schiff of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the interlocutory judgment of the Court of Claims reinstated.

Having waived its sovereign immunity, the State is subject to the same rules of liability as apply to private citizens (Court of Claims Act, § 8). As a landowner, the State “ ‘must act as a reasonable man in maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk’ ” (Basso v Miller, 40 NY2d 233, 241, quoting Smith v Arbaugh’s Rest., 469 F2d 97, 100).

Claimant was injured when he tripped and cut his leg while wading in a small lagoon adjacent to an island owned by the State. The State had specifically reserved this area for swimming only. On the beach, it had provided picnic tables and benches, brick barbecue pits, trash cans, and outhouses. Claimant’s accident was caused by a rusty, jagged pipe imbedded in concrete and rising to within two inches of the water’s surface. Evidence at trial established that the pipe had been in place in the same condition for at least four years.

Under the circumstances, the State had a duty either to inspect and remove hazards from the water or to give warnings that the waters were used at the swimmer’s risk. This does not require the State to scrutinize every square foot of riverbed and lakebottom that it owns. Mere ownership does not give rise to the duty, but inviting the public to swim there does. Obviously, an individual who bathes in a State lake in a primitive area of the Adirondacks cannot expect the State to have “sanitized” the area for safe public use. Also, in areas where the public has been invited to swim, this does not make the State an insurer, liable for every injury no matter the nature of the hazard or how long it has been in place. There must be some proof that the potential danger reasonably could have been neutralized and that its existence was or should have been discovered by the State (see Oppel v City of Long Beach, 262 App Div 777, affd 288 NY 633).

There is no question that the State never inspected the lagoon where claimant was injured nor posted any warning signs. Claimant’s accident was a foreseeable consequence of these omissions, and there is nothing to suggest that claimant, who was 10 years old when the accident occurred, was conducting himself in an unreasonable manner. Thus, the trial court did not err in finding the State liable for claimant’s injuries.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed, without costs, and the interlocutory judgment of the Court of Claims reinstated in a memorandum.


text:
    In the Matter of Town of Yorktown, Appellant, v New York State Department of Mental Hygiene et al., Respondents.
    Decided July 7, 1983

      APPEARANCES OF COUNSEL

      Arthur J. Selkin, Town Attorney, for appellant.

      Robert Abrams, Attorney-General (Robert L. Schonfeld and Peter H. Schiff of counsel), for New York State Department of Mental Hygiene and others, respondents.

      Henry J. Smith for Phoenix House Foundation, Inc., 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 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (92 AD2d 897; see Matter of Harlem Val. United Coalition v Hall, 54 NY2d 977).

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


text:
    Anthony Amodeo et al., Appellants, v Bruce Radler, Respondent, et al., Defendant.
    Argued June 8, 1983;
    decided July 7, 1983

      APPEARANCES OF COUNSEL

      James L. Fischer, Thomas W. Hyland, John W. Manning and Robert F. DiUbaldo for appellants.

      E. Richard Rimmels, Jr., for respondent.
   OPINION OF THE COURT

Memorandum.

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

We agree with the Appellate Division that plaintiffs failed to establish any merit to their cause of action. Failing that, it was proper for the court to grant defendant’s motion for summary judgment. (Indig v Finkelstein, 23 NY2d 728.)

It is thus unnecessary for us, at this time, to address the recently enacted amendments to the CPLR to allow the lower courts to exercise discretion “to excuse delay or default resulting from law office failure.” (CPLR 2005, 3012, subd [d].)

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Jeffrey Rothstein, Appellant, v Stanley Brezenoff, as Administrator/Commissioner of the Human Resources Administration, et al., Respondents.
    Decided July 7, 1983

      APPEARANCES OF COUNSEL

      Stuart Salles for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Marilyn Richter of counsel), for respondents.
   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 [gj), judgment affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (92 AD2d 808).

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


text:
    Zegeye Belachew et al., Appellants, v Haile W. Michael et al., Respondents, et al., Defendant.
    Decided July 7, 1983

      APPEARANCES OF COUNSEL

      Albert A. Jurón for appellants.

      Paul Kovner for Haile W. Michael, respondent.

      Stuart M. Rissoff for Trumbull Corp., respondent.
   OPINION OF THE COURT

Memorandum.

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

Whether to dismiss an action on the ground of forum non conveniens is a matter of discretion, and the Appellate Division’s exercise of that discretion will not be interfered with by this court unless there has been an abuse of discretion, or, in exercising its discretion, the court has failed to take into account all the various factors entitled to consideration (Irrigation & Ind. Dev. Corp. v Indag S.A., 37 NY2d 522). The Appellate Division properly took note of the availability of a suitable forum in Pennsylvania, and the hardship to the moving defendants which would be presented by the unavailability of defendant Bucher and the Pennsylvania Department of Transportation, possible joint tort-feasors, in a New York action (see Varkonyi v S. A. Empresa De Viacao Airea Rio Grandense [Varig], 22 NY2d 333). That court also noted extensive medical treatment of one plaintiff in Pennsylvania. Thus, despite the residency in New York of the plaintiffs and of various medical witnesses, and the. agreement of the corporate defendant, amenable to suit in New York, to hold the Pennsylvania Department of Transportation harmless with regard to injuries arising from the road construction involved herein, the Appellate Division did not abuse its discretion in dismissing this action on the ground of forum non conveniens.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, in a memorandum.


text:
    In the Matter of Forest Hills Tenants Association, Appellant, v Daniel W. Joy, as Commissioner of the Office of Rent Control of the City of New York, Respondent, and Falk Associates, Intervenor-Respondent.
    Decided July 7, 1983

      APPEARANCES OF COUNSEL

      Thomas C. Lambert for appellant.

      Harry Michelson and Stephen H. Deutschmeister for respondent.

      Gary M. Rosenberg and Blaine Z. Schwadel for intervenor-respondent.
   OPINION OF THE COURT

Memorandum.

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

The determination of the rent commissioner to include the salaries of three garage employees who rendered services to tenants throughout the apartment complex in labor costs for the purpose of adjusting maximum rents does not lack a rational basis. Moreover, the commissioner’s refusal to permit the tenants to examine the landlord’s records was not arbitrary or capricious, in view of his own thorough audit of the landlord’s expenses, the results of which were made available to the tenants (see Matter of Windsor Park Tenants’ Assn. v New York City Conciliation & Appeals Bd., 59 AD2d 121; Matter of Jaffin v Weaver, 3 AD2d 196).

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, in a memorandum.


text:
    Meaott Construction Corp., Appellant, v State of New York, Respondent.
    (Claim No. 63253.)
    Decided July 7, 1983

      APPEARANCES OF COUNSEL

      William J. Murphy for appellant.

      Robert Abrams, Attorney-General (.Richard J. Dorsey and Peter H. Schiff 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 [g]), order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (92 AD2d 730).

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


text:
    In the Matter of Hoan Holding Co., Appellant, v Daniel W. Joy, as Commissioner of the Department of Housing Preservation and Development, Respondent, and Homer Price, Intervenor-Respondent.
    Decided July 7, 1983

      APPEARANCES OF COUNSEL

      Joseph Gaier, P. C., for appellant.

      Harry Michelson and Alan W. Ginsberg for respondent.

      Fred Weinstein for intervenor-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 [g]), order affirmed, with costs. On this record, it cannot be said that the commissioner’s determination that the landlord had failed to prove continuous owner occupancy for a period of one year (Administrative Code of City of New York, § Y51-3.0, subd e, par 2, cl [i], subcl [3]; New York City Rent and Eviction Regulations, § 2, subd f, par [11]) lacks a rational basis.

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


author: Jasen, J.

text:
    The People of the State of New York, Respondent, v Thomas Johnson, Appellant.
    Argued June 6, 1983;
    decided July 7, 1983

      APPEARANCES OF COUNSEL

      Allen A. Hans for appellant.

      Robert M. Morgenthau, District Attorney (Curtis Edward Hall, Robert M. Fitter and David H. Steiner of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The search of defendant’s shoulder bag, two feet away from him at the time of his arrest for a crime involving a gun, was valid for the reasons stated in the opinion of Justice Asch at the Appellate Division (see, also, People v Smith, 59 NY2d 454). The questions asked of the defendant at the time of his arrest, although prior to the requisite warnings, were nevertheless permissible as they were asked to clarify a volatile situation rather than to elicit evidence of a crime (see People v Huffman, 41 NY2d 29; cf. People v Quarles, 58 NY2d 664, cert granted sub nom. New York v Quarles, _ US _, 103 S Ct 2118). Retrial of the defendant did not violate the double jeopardy clause when the court declared a mistrial of the first trial on the basis of the jury’s deadlock after two days of deliberation (see Arizona v Washington, 434 US 497, 509-510; People v Michael, 48 NY2d 1, 9). The defendant’s failure to request a charge pursuant to Allen v United States (164 US 492) puts the court’s failure to give such a charge beyond our review.

Jasen, J.

(concurring). I agree that the order of the Appellate Division should be affirmed. I reach that conclusion, however, because I believe that a search of items within the defendant’s immediate control prior to the arrest is justified by the probable cause that existed to make the arrest permissible. (See People v Smith, 59 NY2d 454 [Jasen, J., concurring].) Such an approach has not only been sanctioned by the Supreme Court, but alleviates the necessity of the courts second-guessing the exact events which occurred and the order that they occurred in at the time of the arrest. A more certain standard, as the Supreme Court has recognized, will protect society’s interest in assuring that the defendant’s rights are protected while also assuring society’s obvious interests in protecting its law enforcement officers and in expeditiously handling this critical aspect of police work.

Additionally, I believe the questions asked were proper even though Miranda warnings had not yet been given, not because they were to “clarify a volatile situation”, but because they were asked to ascertain the nature of the situation. Reasonable inquiry when conducting the initial phases of an investigation is clearly permissible. (Miranda v Arizona, 384 US 436, 481; cf. People v Quarles, 58 NY2d 664, cert granted sub nom. New York v Quarles, _ US _, 103 S Ct 2118.)

Chief Judge Cooke and Judges Jones, Wachtler and Meyer concur; Judge Jasen concurs in result in a concurring opinion in which Judge Simons concurs.

Order affirmed in a memorandum.


author: Chief Judge Cooke

text:
    Wayne D. Heritage at al., Appellants, v Robert Van Patten, Respondent.
    Argued June 7, 1983;
    decided July 7, 1983

      APPEARANCES OF COUNSEL

      Joseph E. Rosch and Christopher L. Barker for appellants.

      Edward F. Layden for respondents.
   OPINION OF THE COURT

Memorandum.

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

To impose liability upon defendant Van Patten, owner of the land on which plaintiff, a coemployee of Van Patten, was injured, by virtue of section 241 of the Labor Law would be to disregard the express legislative prohibition established by subdivision 6 of section 29 of the Workers’ Compensation Law which makes compensation the exclusive remedy of an employee injured “by the negligence or wrong of another in the same employ.” To paraphrase Williams v Hartshorn (296 NY 49, 50-51): Regardless of his status as owner of the premises where the injury occurred, Van Patten remains a coemployee in his relations with plaintiff in all matters arising from and connected with their employment.

That the purpose of section 241 of the Labor Law was to impose a nondelegable duty upon a property owner regardless of the absence of control, supervision or direction of the work by him (Allen v Cloutier Constr. Corp., 44 NY2d 290) provides no greater reason for denying exclusivity to the compensation remedy than did the derivative liability imposed upon a vehicle owner by section 388 of the Vehicle and Traffic Law, the purpose of which was, like section 241 of the Labor Law, to create a remedy which was previously nonexistent. Yet there is no question that a vehicle owner, not himself a coemployee of plaintiff, is protected by subdivision 6 of section 29 of the Workers’ Compensation Law from liability for injury to plaintiff resulting from operation of the owner’s vehicle by a coemployee of plaintiff (Naso v Lafata, 4 NY2d 585; Rauch v Jones, 4 NY2d 592; Malone v Jacobs, 88 AD2d 927; see Sikora v Keillor, 13 NY2d 610). “The statute, having deprived the injured employee of a right to maintain an action against a negligent coemployee, bars a derivative action which necessarily is dependent upon the same claim of negligence for which the exclusive remedy has been provided” (Rauch v Jones, supra, at p 596).

Chief Judge Cooke

(dissenting). I cannot agree that merely because a landowner is a coemployee of an injured worker, the landowner may not be held liable for a violation of his or her duty to provide a safe workplace under section 241 of the Labor Law. I therefore dissent and vote to reverse.

It is true that subdivision 6 of section 29 of the Workers’ Compensation Law states that workers’ compensation benefits “shall be the exclusive remedy to an employee * * * when such employee is injured or killed by the negligence or wrong of another in that same employ.” This exclusivity provision should not be construed, however, to negate an owner’s absolute and nondelegable duty to insure the safety of construction and excavation sites under section 241 of the Labor Law. Under subdivision 6 of the section, all contractors and property owners, except certain owners of one- or two-family dwellings, must insure that “[a]ll areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places.”

In enacting this provision, the Legislature’s intention was “to give the workman in the hazardous employment of construction, demolition and excavation added protection, other than workmen’s compensation, in the form of nondelegable duties cast upon the owner and general contractor” (Allen v Cloutier Constr. Corp., 44 NY2d 290, 299 [emphasis supplied]). This protection will be negated if a landowner may circumvent his or her duty by becoming a coemployee of those performing the work. This is not a case in which the owner of a construction site, working alongside the other employees, negligently knocks a carpenter from a ladder. Here the “employee” was the sole shareholder, chief executive officer, and president of the company that employed plaintiff. The scope of the duties of Van Patten as “coemployee” of plaintiff were virtually coextensive with his duty as landowner. Indeed, the Appellate Division concluded that the “wrong” that Van Patten committed as coemployee was his breach of his duty as property owner under section 241. By this circular reasoning, Van Patten’s breach of his duty under section 241 becomes the ground for insulating him from liability for this breach. To affirm the holding below might well encourage landowners to become “paper” coemployees as a device to avoid their statutory duties under section 241.

Moreover, the majority’s analogy to section 388 of the Vehicle and Traffic Law is not apt. Section 388 makes the owner of a motor vehicle vicariously liable for any injury or damage caused by the vehicle’s negligent operation by a driver using the vehicle with the owner’s permission. Behind this enactment is “the policy that one injured by the negligent operation of a motor vehicle should have recourse to a financially responsible defendant” (Continental Auto Lease Corp. v Campbell, 19 NY2d 350, 352). Barring a worker injured as result of a coemployee’s negligent operation of a motor vehicle from recovering other than workers’ compensation benefits does not offend the policy behind section 388. Section 241 of the Labor Law, by contrast, is expressly designed to protect workers at construction sites. Barring recovery in instances where the owner who violated his or her duty to provide a safe work site was a coemployee undercuts the goal of section 241 by removing any financial incentive for the owner to make the site safe. Instead, the statute and the Workers’ Compensation Law should be read in harmony, to protect the safety of workers.

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

Order affirmed, with costs, in a memorandum.


text:
    Liberty Mutual Insurance Company, Respondent, v Prudential Property and Casualty Insurance Company, Appellant.
    Decided July 7, 1983

      APPEARANCES OF COUNSEL

      Norman H. Dachs for appellant.
    A. Paul Goldblum 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 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (93 AD2d 814). This being an action between carriers for a declaratory judgment as to the division of responsibility between them, the reasoning of Chrysler Leasing Corp. v Public Administrator, N. Y. County (85 AD2d 410) is not apposite.

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


text:
    Melvin Tharps, Appellant, v City of New York et al., Defendants, and New York City Transit Authority, Respondent.
    Decided July 7, 1983

      APPEARANCES OF COUNSEL

      Gary John Dmoch for appellant.

      Mark Yagerman and Richard K. Bernard for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division granting the motion to dismiss the complaint should be reversed, with costs, and the complaint reinstated.

The limitations period applicable to actions for assault was reduced by the Legislature in 1962 to one year. When in 1969 the Legislature extended the period of limitations applicable to an action against the Transit Authority “founded on tort” to one year and 90 days it was, therefore, aware that some torts, including assault, were governed by a lesser, one-year period. Having failed to differentiate between types of tort actions against the authority, the Legislature must be deemed to have intended to change the limitation period for an action against the authority for assault to one year and 90 days.

The conclusion thus reached is substantiated by the letter of the authority’s counsel contained in the Bill Jacket of the bill which became chapter 618 of the Laws of 1969 which recognized that the effect of the amendment was to subject the authority to “the same period of time for the commencement of tort actions against [the authority] as is now provided for similar actions against the City of New York * * * pursuant * * * to General Municipal Law, section 50-i.” Trayer v State of New York (90 AD2d 263), relied upon by the authority, is distinguishable, the amendment there having been to shorten the CPLR provision, not (as here) to extend the time period for bringing an action against the tort-feasor (there the State under the Court of Claims Act, here the Transit Authority under the Public Authorities Law).

The action having been begun within one year and 82 days after the happening of the assault on which the claim is based was, therefore, timely.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed, with costs, and the complaint reinstated in a memorandum.


text:
    Maria E. Quijije, as Administratrix of the Estate of Eva I. Canales, Deceased, et al., Appellants, v Lutheran Medical Center, Respondent.
    Decided July 7, 1983
   On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    County of Rockland, Respondent, v Civil Service Employees Association, Inc., et al., Appellants.
    Submitted June 27, 1983;
    decided July 7, 1983
   Motion to dismiss the appeal denied.


text:
    Langham Mansions Co., Appellant, v Pat Bodine, Respondent.
    Submitted June 20, 1983;
    decided July 7, 1983
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain it. (CPLR 5602, subd [a], par 1.)