text:
    Board of Education of the Yonkers City School District, Appellant, v Yonkers Federation of Teachers, Respondent.
    Argued October 16,1978;
    decided November 30,1978

      APPEARANCES OF COUNSEL

      Eugene F. Fox, Corporation Counsel (Arthur J. Doran, Jr., of counsel), for appellant.

      David N. Stein and James R. Sandner for respondent.
   OPINION OF THE COURT

Memorandum.

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

This is a proceeding, brought pursuant to CPLR 7511 (subd [a]), to vacate the award of the arbitrator who, in interpreting the terms of the collective bargaining agreement concluded that sabbatical leaves were mandated by the terms of the agreement, if certain conditions were met, and ordered that petitioner approve sabbatical leaves for grievants. Petitioner argues that pursuant to the terms of the collective bargaining agreement the award was advisory only and that the arbitrator’s fashioning of ad hoc procedural standards was tantamount to making a new contract for the parties.

Even assuming that the terms of the agreement mandated that the award be advisory only (but see Matter of Yonkers Federation of Teachers v Board of Educ., 44 NY2d 752; Matter of Yonkers Federation of Teachers [Board of Educ.], 46 NY2d 725 [decided herewith]), the submission of the grievance to the arbitrator expressly empowered him to fashion a remedy to resolve the controversy! This stipulation in and of itself, divested the courts of power to inquire into the procedural standards used by the arbitrator in rendering the award (Binghamton Civ. Serv. Forum v City of Binghamton, 44 NY2d 23, 28-29; Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578, 582-583).

Of course, that is not to say that the submission by the parties authorizing the arbitrator to resolve the controversy between them gave him the right to fashion any remedy he deemed appropriate. Arbitration awards are always limited by the interdictions of public policy as expressed in the Constitution, statutes or decisional law of the State (Matter of Port Jefferson Sta. Teachers Assn. v Brookhaven-Comsewogue Union Free School Dist., 45 NY2d 898, 899-900; Matter of Susquehanna Val. Cent. School Dist. at Conklin [Susquehanna Val. Teachers’ Assn.], 37 NY2d 614, 616-617). The award rendered here, however, was within public policy limits and not "completely irrational”. The inconvenience or even fiscal hardship it may cause petitioner is academic in the resolution of this dispute (Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578, 583-584, supra).

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

Order affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Edward Grayson et al., Respondents, v Joseph J. Christian, Individually and as Chairman of the New York City Housing Authority, Appellant.
    Submitted November 6,1978;
    decided November 30,1978
   Motion for leave to appeal dismissed upon the ground that the nonfinal order sought to be appealed from is not one which comes within the provisions of CPLR 5602 (subd [a], par 2). (See Matter of F. J. Zeronda, Inc. v Town Bd. of Town of Halfmoon, 37 NY2d 198.)

On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Owen Quinn, Respondent, v Alfred E. Werner, as Commissioner of Aviation and Transportation of the Town of Islip, et al., Appellants.
    Decided November 30, 1978
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution (Matter of McGinigle v Town of Greenburgh, 43 NY2d 949; Matter of Spruils v New York City Tr. Auth., 44 NY2d 949).


text:
    New York Criminal and Civil Courts Bar Association et al., Appellants, v State of New York et al., Respondents.
    Submitted October 30, November 13, 1978;
    decided November 30, 1978
   Motion to disqualify three Judges of the Court of Appeals dismissed and the matter referred to the three Judges for individual consideration and determination by each Judge. (Matter of Waltmemade, 37 NY2d [a], [11].)

Chief Judge Breitel and Judges Jasen and Jones respectively deny the referred motion for disqualification.


text:
    Doris Rosenfeld, Individually and for Others Similarly Situated, Appellant, v A. H. Robins Co., Inc., Respondent.
    Submitted November 13, 1978;
    decided November 30,1978
   Motion to dismiss appeals herein granted. Appeal taken by permission of the Appellate Division dismissed, without costs, upon the ground that the question certified does not present a question of law decisive of the correctness of the determination of the Appellate Division. Appeal taken as of right dismissed, without costs, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    United States Leasing Corp., Respondent, v William D. Friedmann et al., Defendants-Appellants and Third-Party Plaintiffs-Appellants. Pitney-Bowes, Inc., Third-Party Defendant-Respondent.
    Submitted November 6,1978;
    decided November 30,1978
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals has no jurisdiction to entertain it (NY Const, art VI, § 3, subd b, par [7]; CPLR 5602, subd [a], par 1).


text:
    In the Matter of Board of Supervisors of Montgomery County, Respondent, v Arthur C. Aulisi, as a Justice of the Supreme Court, et al., Appellants, and Charles E. Hardies, Jr., as District Attorney of the County of Montgomery, Respondent.
    Argued November 28,1978;
    decided December 1,1978

      APPEARANCES OF COUNSEL

      Louis J. Lefkowitz, Attorney-General (Robert D. McDougall and Ruth Kessler Toch of counsel), for Justice Arthur C. Aulisi, appellant.

      Richard T. Horigan, appellant pro se.

      William E. Moore, County Attorney, for Board of Supervisors of Montgomery County, respondent.
   OPINION OF THE COURT

Memorandum.

Judgment of the Appellate Division affirmed, without costs, on the opinion of Mr. Justice T. Paul Kane at the Appellate Division. It is noted additionally that a new District Attorney has been elected in the County of Montgomery to take office on January 1, 1979. These events will moot the necessity for displacing the regularly elected District Attorney based on whatever disqualification has arisen because of past associations and activity or omissions. Should the problem which gave occasion to the designation invalidated in this proceeding recur, recourse, if supported by a proper basis, may be had to the Governor of the State for action in accordance with his powers under the State Constitution (art XIII, § 13) and subdivision 2 of section 63 of the Executive Law.

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

Judgment affirmed, without costs, in a memorandum.


text:
    Waterfront Commission of New York Harbor, Appellant, v Commissioner of the Division of Criminal Justice Services, Respondent.
    Submitted November 13,1978;
    decided December 1, 1978
   Motion for leave to appeal denied upon the ground that an appeal lies as of right (CPLR 5601, subd [a], par [iii]).


text:
    In the Matter of New York University et al., Appellants, v Robert P. Whalen, as Commissioner of the Department of Health of the State of New York, et al., Respondents.
    Argued October 16,1978;
    decided December 6, 1978

      APPEARANCES QF COUNSEL

      George G. Gallantz, Robert M. Kaufman and Bruce E. Fader for appellants.

      Louis J. Lefkowitz, Attorney-General (Eileen F. Shapiro and Samuel A. Hirshowitz of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

It is the policy of this State as expressed in its "Open Meetings Law” (Public Officers Law, §§ 95-106) that "public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy.” (§ 95.) In furtherance of this objective of public accountability, courts are empowered, in their discretion and upon good cause shown, to declare void any action taken by a public body in violation of the mandate of this legislation. (§ 102.) Inclusion by the Legislature of this language vesting in the courts the discretion to grant remedial relief makes it abundantly clear that not every breach of the "Open Meetings Law” automatically triggers its enforcement sanctions. (See, generally, Comment, New York Open Meetings Law: A Critical Evaluation, 41 Albany L Rev 329, 353-354.)

Judicial relief is warranted only upon a showing of good cause. (§ 102, subd 1.) Since appellants have failed to meet this burden, their petition was properly dismissed.

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

Order affirmed.


text:
    Pierre Guibor, Appellant, v Manhattan Eye, Ear and Throat Hospital, Inc., et al., Respondents.
    Argued October 17,1978;
    decided December 6, 1978

      APPEARANCES OF COUNSEL

      Dudley Gaíñn for appellant.

      Joseph P. Giasi, Jr., and Alexander L. Caccia for respondents.
   OPINION OF THE COURT

Memorandum.

Order affirmed, with costs, on the opinion by Mr. Justice Harold Birns at the Appellate Division (56 AD2d 359).

We believe, however, that some mention should be made of the requirement that physicians, who allege that they have been improperly denied their staff privileges at a private hospital, exhaust their administrative remedies before availing themselves of the judicial process.

At common law, absent a contractual obligation to the contrary, a physician’s continued professional association with a private hospital was within the unfettered discretion of the hospital’s administrators. Denial of staff privileges, for whatever reason or for no reason at all, constituted no legal wrong. (Leider v Beth Israel Hosp. Assn., 11 NY2d 205, 208-209; Van Campen v Olean Gen. Hosp., 210 App Div 204, 209, affd 239 NY 615.)

As this court has noted, this seemingly harsh common-law rule has only been recently tempered by the Legislature’s enactment of section 2801-b of the Public Health Law. "No longer may a physician be denied professional privileges arbitrarily * * * Reasons must be given for any termination, and those reasons must relate to legitimate concerns of the hospital or nursing home: patient care, patient welfare, objectives of the institution, or competency of the physician.” (Fried v Straussman, 41 NY2d 376, 380; Matter of Fritz v Huntington Hosp., 39 NY2d 339, 348; Public Health Law, § 2801-b, subd 1.)

Subdivision 2 of section 2801-b of the Public Health Law provides the allegedly aggrieved physician with a procedural avenue through which he can present his claim of a wrongful denial of professional privileges to the Public Health Council. The council is directed to make a prompt investigation of the matter, and is empowered to receive reports from the governing body of the hospital and the complainant in assessing the allegations set forth in the complaint. (Public Health Law, § 2801-b, subd 3.) If the council finds cause to credit these claims, it must direct the appropriate body of the hospital to review its actions in denying the complainant professional privileges.

It appears all too obvious that when the Legislature has afforded physicians greater rights than those known at common law to establish or retain professional ties with hospitals, a physician is obligated to present his claim of an improper practice, in the first instance, to the administrative body charged with the protection of these statutory rights. The Public Health Council, established to consider matters relating to the preservation and improvement of public health, possesses the necessary expertise to evaluate a physician’s claim. While the council’s power to grant remedial relief may be limited to directing an offending hospital to reconsider its earlier actions, we note that "[i]n any action for injunction brought pursuant to [Public Health Law, art 28], any finding of the public health council * * * shall be prima facie evidence of the fact or facts found therein.” (§ 2801-c.)

Subdivision 4 of section 2801-b of the Public Health Law does not dictate a different result. The requirement that a physician first present his claim of an improper practice by the governing body of a hospital in violation of subdivision 1 of that section to the Public Health Council simply does not impair or affect any other right or remedy the physician may have. It merely assures prompt investigation by the administrative body best able to assess the respective interests of the parties involved.

Nor is our decision in Fried v Straussman (41 NY2d 376, supra) to the contrary. In Fried, our holding was limited to defining the appropriate scope of judicial review in cases concerning the exclusion of a physician. The issue of whether the allegedly aggrieved physicians must first invoke the jurisdiction of the Public Health Council had never been raised by the parties or reached by the court, before or after the trial, as it must have been at least by affirmative pleading.

For the above-mentioned reasons, we now conclude that the Appellate Division properly determined appellant’s complaint to be premature.

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

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Bobby Dairsaw, Appellant.
    Argued October 26, 1978;
    decided December 6, 1978

      APPEARANCES OF COUNSEL

      Vincent G. Berger, Jr., for appellant.

      Patrick Henry, District Attorney (Frederick Eisenbud of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

Order affirmed on the memorandum at the Appellate Division.

We would only add that unwarranted delay in arraignment is but one of the many pertinent factors bearing on the question of the voluntariness and, therefore, admissibility of a defendant’s inculpatory statements. (People v Vargas, 7 NY2d 555, 565-566; United States v Poole, 495 F2d 115, 120, cert den 422 US 1048.) Where, as in the case before us, there has been a voluntary and intelligent waiver by the defendant of his rights to counsel and to remain silent after he had been repeatedly advised of his constitutional rights, the statements made by the defendant were properly submitted to the trier of the facts to pass on the issue of the voluntariness of the inculpatory admissions. We reject defendant’s contention that his improperly postponed arraignment renders any statements made by him after his arrest involuntary as a matter of law.

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

Order affirmed in a memorandum.


author: Per Curiam.

text:
    In the Matter of New York State Board of Pharmacy, Respondent, v Drug Purchase, Inc., Appellant.
    Argued October 19, 1978;
    decided December 6, 1978

      APPEARANCES OF COUNSEL

      Robert Ullman for appellant.

      Louis J. Lefkowitz, Attorney-General (John J. O’Grady and Samuel A. Hirshowitz of counsel), for respondent.
   OPINION OF THE COURT

Per Curiam.

The dispositive issue on this appeal is whether respondent State Board of Pharmacy has correctly interpreted section 6808 of the Education Law as requiring a drug wholesaler to register each of its places of business with the board.

The statute in question may not be a model of clarity, and perhaps the Legislature should consider restructuring it. Nonetheless, we proceed to interpret the statute as it presently exists. Subdivision 1 of the section in question provides that "[n]o person, firm, corporation or association shall possess drugs, prescriptions or poisons for the purpose of compounding, dispensing, retailing, wholesaling, or manufacturing, or shall offer drugs, prescriptions or poisons for sale at retail or wholesale unless registered by the department as a pharmacy, store, wholesaler, or manufacturer.” The remainder of the statute contains a welter of provisions relating to registration and inspection, some specifically applicable to a particular type or types of regulated entity, others applicable to any entity regulated by the section. It is appellant’s contention that although each pharmacy and store must be individually registered, a particular wholesaler need only register its main place of business regardless of how many places of business it actually operates in the State. Respondent, on the other hand, argues, and correctly so, that the statute requires a wholesaler to register each place of business in the State.

We are required to reject appellant’s interpretation. This is so, in part, because the interpretation of respondent, the agency charged with the enforcement of the statute, is a reasonable one, while to adopt appellant’s interpretation would be to ignore the intent and purpose of the Legislature in creating this statutory scheme.

In the instant case, it is beyond dispute that the intendment of the Legislature, in particular and large part, was to protect the public from contaminated, misbranded and adulterated drugs. To effectuate this purpose, the Legislature deemed it necessary to require the registration of places in which drugs are kept, so that they may be readily inspected for and against threats to the public health and welfare. For such an inspection program to be effective, it is obviously necessary that drug wholesalers be required to register each of their places of business, not merely their main office or place of business. Indeed, the wisdom and necessity of this requirement is aptly illustrated by the instant case in which appellant Drug Purchase, Inc,, was storing contaminated drugs in filthy conditions unbeknownst to respondent until fortuitously reported by third parties.

Our interpretation of the statute as requiring a drug wholesaler to register each place of business is amply supported by examination of several provisions of the statute. For example, paragraph b of subdivision 4 of section 6808 specifically requires a wholesaler to renew its registration biennially "for each place of business”. Unless a wholesaler is required to register each place of business, this provision would be meaningless. Similarly, subdivision 5 authorizes respondent to "enter any * * * wholesaler * * * and to inspect, at reasonable times, such factory, warehouse”. This is, of course, indicative of the fact that each place of business must in fact be registered.

In light of all this, it is abundantly evident that the registration provision must be interpreted as requiring a drug wholesaler to register each of its places of business.

Accordingly, the order appealed from should be affirmed, with costs.

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

Order affirmed.


text:
    In the Matter of Hilda B. Giambra et al., Appellants, v Commissioner of Motor Vehicles of the State of New York, Respondent.
    Argued October 20,1978;
    decided December 6,1978

      APPEARANCES OF COUNSEL

      Frank R. Bell for appellants.

      Louis J. Lefkowitz, Attorney-General (Sidney L. Grossman, Jean M. Coon and Anne S. Meadvin of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order appealed from should be affirmed, with costs. Having failed to utilize the appropriate mechanism for administrative review of the decision to revoke their operator’s licenses and motor vehicle registration, petitioners are precluded from challenging that determination by means of this article 78 proceeding (Vehicle and Traffic Law, § 263; see CPLR 7801, subd 1).

A few words of clarification are in order, however, as to the problem perceived to exist by the Appellate Division with respect to the verification of the petition commencing this proceeding by petitioners’ attorney rather than by petitioners themselves. Although not strictly necessary for the disposition of this appeal, it appears appropriate to alleviate some of the apparent confusion concerning this matter. Verification of a pleading by an attorney rather than a party is not normally permissible, and is usually not an advisable practice. Nonetheless, there are certain situations in which verification by someone other than a party is explicitly authorized by statute (CPLR 3020, subd [d]). One such instance is where the party "is not in the county where the attorney has his office” (CPLR 3020, subd [d], par 3). Since that is the situation which exists in the present proceeding, the attorney was in fact authorized to verify the petition.

We would note, however, that in such instances there must be careful compliance with the mandates of CPLR 3021. Thus, in the present instance, although the attorney properly explained in the petition the reasons why he rather than petitioners was verifying it, he failed to "set forth in the affidavit the grounds of his belief as to all matters not stated upon his knowledge” (CPLR 3021). Any objection to this defect, however, was waived by respondent’s apparent failure to give notice with due diligence of respondent’s intention to treat the pleading as a nullity on the basis of that defect (see CPLR 3022).

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

Order affirmed.


text:
    In the Matter of the Arbitration between Vestal Central Schools, Appellant, and Vestal Teachers Association et al., Respondents.
    Argued October 18, 1978;
    decided December 6, 1978

      APPEARANCES OF COUNSEL

      Edward J. Sarzynski for appellant.

      Richard N. Aswad and Paul E. Klein for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (60 AD2d 720).

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


text:
    In the Matter of Crown Nursing Home, Appellant, v Charles J. Hynes, as Deputy Attorney-General of the State of New York, Respondent. In the Matter of Coronet Nursing Home, Appellant, v Charles J. Hynes, as Deputy Attorney-General of the State of New York, Respondent.
    Submitted November 20, 1978;
    decided December 6, 1978
   Motion to dismiss the appeal herein granted and the appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion to vacate stay denied as unnecessary. (CPLR 5519, subd [e].)


text:
    In the Matter of John G. Robinson, Appellant, v New York State Employees’ Retirement System et al., Respondents.
    Argued October 25, 1978;
    decided December 7, 1978

      APPEARANCES OF COUNSEL

      Gabriel J. Ferber and Thomas I. McElvein, Jr., for appellant.

      Louis J. Lefkowitz, Attorney-General (Winifred C. Stanley and Ruth Kessler Toch of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

Order of the Appellate Division affirmed, without costs.

Petitioner is a tenured professor at the medical school of the State University at Buffalo. He contends that although he retains his compensated position at the State University, he is entitled to receive unabated a full retirement allowance from the State Employees’ Retirement System after retiring from a position he had simultaneously held at a county hospital. By virtue of his county employment he had been a member of the State Employees’ Retirement System.

Difficulty arises from the language of the statute merging the University of Buffalo into the State University (L 1962, ch 980). That statute permitted university employees to remain members of the then existing private retirement plan at the university "as though no merger had occurred”. The purpose was to protect any accumulated interests in the existing private plan, perhaps more beneficial than membership in the State Employees’ Retirement System. Petitioner elected to continue in the plan existing before the merger. It is not disputed that, as a result, when petitioner retires from his position at the State University, he will be entitled to two separate retirement allowances, one from the State system as a result of his former county position, and one from the "private” plan in which he has participated at the university.

Petitioner, however, would read more into the statute. He contends that the statute guaranteed him the right to retire in due course from his county position and to collect a retirement allowance despite continued public employment at the State University. But the statute makes no explicit mention of such a right, nor may it be implied from the general statutory language preserving the rights of employees of the University of Buffalo. Petitioner was permitted to remain in a separate private retirement system after the merger "as though no merger had occured”, but that does not mean he has remained in private employment for the 16 years since the merger. Hence, since he remains in public service, he is not entitled under the statute governing the State Employees’ Retirement System to receive a full State allowance (Retirement and Social Security Law, § 101, subd a).

Moreover, there is no constitutional infirmity in this application of the statute. It is established, of course, that subsequent legislation may not diminish rights possessed by a member at the time he joined the State retirement system (see NY Const, art V, § 7; Birnbaum v New York State Teachers Retirement System, 5 NY2d 1, 11; Donner v New York City Employees’ Retirement System, 33 NY2d 413, 416-417). Under the governing statute petitioner never, however, had a right to collect a State pension while remaining in public employment. Since the merger statute was enacted long before petitioner’s purported retirement, inapposite are cases permitting public employees to retain public pension rights while continuing to work in public employment not prohibited at the time of retirement (Roddy v Valentine, 268 NY 228; People ex rel. Mulvey v York, 41 App Div 419). It should be noted, in passing, that those cases predate constitutional protection of State retirement benefits.

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

Order affirmed.


text:
    The People of the State of New York, Respondent, v Vernon C. Davis, Appellant.
    Argued October 27,1978;
    decided December 7, 1978

      APPEARANCES OF COUNSEL

      Verner M. Ingram, Jr., for appellant.

      William H. Power, Jr., District Attorney (Richard A. Dudley, Jr., of counsel), for respondent.
   OPINION OF THE COURT

Order reversed and a new trial ordered on the dissenting memorandum by Mr. Justice Michael E. Sweeney at the Appellate Division (60 AD2d 679).

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


text:
    Harold Van Wormer, Respondent, v John Giovatto, Appellant, et al., Defendant.
    Argued October 24,1978;
    decided December 7,1978

      APPEARANCES OF COUNSEL

      Dan Lamont for appellant.

      David B. Alford for respondent.
   OPINION OF THE COURT

Memorandum.

The Real Property Tax Law (§ 1006, subd 1) provides that "the county treasurer shall commence [a] tax sale and shall continue the same from day to day until so much of each parcel shall be sold as will be sufficient to pay the amount due thereon”. (Emphasis added.) Contrary to the conclusion reached by the Appellate Division on plaintiffs appeal from the order of Supreme Court declaring defendant’s tax deed valid, this provision does not put the county treasurer to the costly burden of subdividing delinquent tax properties, but merely authorizes, without mandating, bidding for less than a full interest in the entire parcel. (See Matter of Countrywide Realty Co. v Bruen, 18 AD2d 259, affd 14 NY2d 604; 1947 Opns Atty Gen 301; 17 Opns St Comp, 1961, p 58.) Examination of the full record on appeal reveals a factual situation at variance with what was earlier thought to be the case. (Cf. Wood v La Rose, 35 NY2d 266, 270.)

Although we believe that the county treasurer did not abuse his discretion in permitting bidding on the entire parcel, an examination of the record reveals the existence of at least some evidence that plaintiff attempted to pay his delinquent taxes prior to issuance of the tax deed, but was misled by information supplied by the county treasurer to the effect that any attempt at redemption of the property by payment of the delinquent taxes should be directed to the defendant purchaser. This information, if in fact given to plaintiff by the county treasurer, was incorrect inasmuch as payment for the purpose of the redemption of property sold for delinquent taxes should be made to the county treasurer. (Real Property Tax Law, § 1010, subd 1.) On the present record, however, we are unable to determine whether defendants should be estopped from asserting the validity of the tax deed. We, therefore, remit to Supreme Court for a new trial on this issue.

Accordingly, the order of the Appellate Division appealed from should be reversed, without costs, and the case remitted to Supreme Court, Schoharie County.

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

Order reversed, without costs, and the case remitted to Supreme Court, Schoharie County, for a new trial in accordance with the memorandum herein.


text:
    Dion Charles, an Infant by His Parent and Natural Guardian, Noemi Carambot, et al., Appellants, v Adelaide Fischer, Respondent.
    Argued October 27,1978;
    decided December 7, 1978

      APPEARANCES OF COUNSEL

      Perry Gary Fish for appellant.

      Patrick L. Wynne 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 the presence in the jury room of a noté written by a discharged alternate juror is, by itself, insufficient to require the setting aside of the jury’s verdict as a matter of law.

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

Order affirmed.


text:
    Christopher Lunn, an Infant, by Paul Lunn, His Father and Natural Guardian, et al., Appellants, v State of New York, Respondent.
    (Claim No. 58429.)
    Argued October 25, 1978;
    decided December 7, 1978

      APPEARANCES OF COUNSEL

      Morris Zweibel, Harold V. McCoy and Emmet J. Agoglia for appellants.

      Louis J. Lefkowitz, Attorney-General (Francis J. Keehan, Ruth Kessler Toch and Stanley Fishman of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (59 AD2d 582).

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


text:
    In the Matter of Carol L. Dain, Respondent, v City Central School District of Port Jervis, Appellant.
    Argued October 27,1978;
    decided December 7,1978

      APPEARANCES OF COUNSEL

      Henry J. Holley and James W. Fay for appellant.

      Barton W. Bloom for respondent.
   OPINION OF THE COURT

Judgment appealed from and the order of the Appellate Division brought up for review affirmed, with costs, on the memorandum at the Appellate Division (57 AD2d 622; see, also, Matter of Johnson v Director, Downstate Med. Center, 41 NY2d 1061; and Matter of McGirr v Division of Veterans Affairs, Executive Dept., State of N. Y., 43 NY2d 635).

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


text:
    The People of the State of New York, Respondent, v Daniel Travison, Appellant.
    Argued October 28, 1978;
    decided December 7, 1978

      APPEARANCES OF COUNSEL

      Michael J. Cunningham for appellant.

      Charles J. Wilcox, District Attorney (Mark B. Harris and Ira Mendleson, III, of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed on the opinions of Justices A. Franklin Mahoney and T. Paul Kane at the Appellate Division (59 AD2d 404).

In our court appellant additionally argues that the Appellate Division committed error in the manner in which it upheld the denial of his pretrial suppression motion. After a pretrial hearing at which evidence was introduced with respect to pretrial photo identification and lineup procedures, appellant’s motion to suppress his in-court identification by the complainant was denied on the ground that the pretrial procedures were not impermissibly suggestive. The Appellate Division, without addressing the rationale of the suppression court, held that even if it were to be assumed that the pretrial procedures were illegal, the complainant had such an opportunity for observation at the time of the sexual assault as to establish an untainted independent source for her in-court identification testimony. Appellant now argues that the denial of his suppression motion cannot be upheld on this alternative ground inasmuch as the only testimony as to independent source was given at the trial, none having been offered at the suppression hearing.

Any error in the disposition of the suppression issue at the Appellate Division was harmless beyond a reasonable doubt in the circumstances of this case. At trial the question of identity was not put in issue. Appellant conceded that he had spent an extended time with the complainant but offered an entirely different description of what had occurred during their encounter. In this circumstance, when there is no suggestion that defense strategy on the trial was in any way affected by the denial of suppression, appellant may not now be heard to complain of errors with respect to the denial of his motion to suppress the complainant’s in-court identification testimony.

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

Order affirmed in a memorandum.


text:
    Urban Rozler, as Mayor of the Village of Lancaster, Individually and on Behalf of the Village of Lancaster, Appellant, et al., Petitioner, v William R. Franger et al., Individually and as Trustees of the Village of Lancaster, et al., Respondents.
    Argued October 27, 1978;
    decided December 7, 1978

      APPEARANCES OF COUNSEL

      Urban Rozler, appellant pro se.

      Edward J. Murty, Jr., for respondents.
   OPINION OF THE COURT

Order affirmed, without costs, on the opinion by Mr. Justice Stewart F. Hancock, Jr., at the Appellate Division (61 AD2d 46).

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


text:
    In the Matter of the Claim of Christina Cornwell, Respondent, v Rockwell International et al., Appellants. Workers’ Compensation Board, Respondent.
    Argued October 27, 1978;
    decided December 7, 1978

      APPEARANCES OF COUNSEL

      John E. Knauf for appellants.

      Louis J. Lefkowitz, Attorney-General (Harry Rackow, Ruth

      Kessler Toch and Daniel Polansky of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, on the opinion by Madam Justice Ann T. Mikoll at the Appellate Division (59 AD2d 475).

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


text:
    The People of the State of New York, Respondent, v Harold Shields, Appellant.
    Argued October 20, 1978;
    decided December 7, 1978

      APPEARANCES OF COUNSEL

      Ellen J. Schneider and William E. Hellerstein for appellant.

      John J. Santucci, District Attorney (Charles N. Walsh of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

On the whole record, we cannot say that the Appellate Division was not justified in finding the proof of defendant’s guilt so overwhelming that the trial errors paled into harmlessness. In arriving at that conclusion, however, we disregard the course of speculation that led the majority at the Appellate Division to conjecture that considerations other than the erroneous denial of defendant’s application to preclude inquiry as to the prior conviction of assault with intent to rape motivated his failure to take the stand. Moreover, the exclusion of prior convictions is largely, if not completely, a matter of discretion which rests with the trial courts and fact-reviewing intermediate appellate courts.

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

Order affirmed in a memorandum.


text:
    Bernard Fried, Appellant, v Bower & Gardner, Respondent, et al., Defendant.
    Argued October 25,1978;
    decided December 7,1978

      APPEARANCES OF COUNSEL

      Bernard Fried, appellant pro se.

      Benjamin Vinar and Thomas R. Newman for respondent.
   OPINION OF THE COURT

Memorandum.

Since appellant’s belief in the justice of his underlying cause is obviously sincere, it is understandable that he finds the zealousness with which the respondents represented their client disturbing, and even offensive. But the appellant must also appreciate that an attorney at law, owing no fiduciary obligation to his adversary’s client, is free, if not obligated, so long as the steps he takes are within proper professional bounds, to carry out his responsibilities to his own client with full adversarial vigor. Examination of the record, as well as the voluminous file of prior proceedings requisitioned at the request of the appellant, discloses no motivation or conduct on respondents’ part that was not so contained. Neither appellant’s expressions of opinion to the contrary, though genuinely held, nor the conclusory allegations with which he structured both his complaint and his opposing papers could substitute for the showing of evidentiary facts required to withstand the motion for summary judgment (Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338, 341). Accordingly, the order of the Appellate Division should be affirmed, without costs.

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

Order affirmed.


text:
    The People of the State of New York, Respondent, v Jacob Luciano, Appellant.
    Argued October 20, 1978;
    decided December 7, 1978

      APPEARANCES OF COUNSEL

      Philip I. Beane for appellant.

      Mario Merola, District Attorney (Edward G. Spell, Alan D. Marrus and Barbara Gonzo of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

On the present record, the trial court properly refused to charge the jury that it could consider lack of motive in determining defendant’s guilt. Although in some circumstances absence of motive evidence may tend to establish that defendant did not commit the act charged or that he lacked the requisite intent (see, e.g., People v Sangamino, 258 NY 85, 87-88; People v Guadagnino, 233 NY 344, 348-349), here the commission of an intentional act was not in issue due to defendant’s own testimony and self-defense plea (see People v Johnson, 139 NY 358, 362).

Nor did the court err by refusing to entertain defendant’s constitutional challenge to his prior convictions at the persistent felony offender hearing. While we agree that CPL 400.20 authorizes such a challenge, defendant did not allege that the prior convictions were "unconstitutionally obtained” within the meaning of that section. Rather, he claimed that his rights under People v Montgomery (24 NY2d 130) were violated during the earlier proceedings. Even if this were so, the prior convictions would not be rendered invalid for the purposes of determining persistent felony offender status. At most, a Montgomery violation, if proven, would entitle defendant to an extension of time for taking an appeal (People v Corso, 40 NY2d 578, 580-581).

We have examined defendant’s remaining contentions and find them to be without merit.

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

Order affirmed in a memorandum.


text:
    In the Matter of the Estate of Albert J. Beckley, Deceased. Thomas C. Brady, as Guardian ad Litem for Unknowns, Appellant; Franciscan Fathers Friary of Christ the King Seminary et al., Respondents.
    Submitted November 27, 1978;
    decided December 7, 1978
   Motion to dismiss the appeal herein granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that the appellant is not a party aggrieved (CPLR 5511).


text:
    Robert E. Sawyer, Appellant, v Lee T. Adams, as Judge of the Chautauqua County Court, Respondent.
    Submitted November 27, 1978;
    decided December 7, 1978
   Motion to dismiss the appeal herein granted and the appeal dismissed, without costs, upon the ground of mootness inasmuch as the remedy sought has become unavailable.


text:
    Joseph Ventricelli, Appellant-Respondent, v Kinney System Rent A Car, Inc., et al., Respondents-Appellants, and Antonio Maldonado, Respondent. Kinney System Rent A Car, Inc., et al., Third-Party Plaintiffs-Respondents-Appellants, v American Motors Corp. et al., Third-Party Defendants-Respondents.
    Submitted November 27, 1978;
    decided December 7,1978
   Motion to delete imposition of costs, treated as a motion to amend remittitur, granted. Return of remittitur requested and, when returned, it will be amended to read as follows: "Order affirmed in a memorandum, with costs to defendants Kinney against plaintiff Ventricelli only. All concur except Fuchsberg, J., who dissents and votes to reverse in an opinion.” [See 45 NY2d 950.]


text:
    In the Matter of Julia Jacaruso, as Village Clerk of the Village of Spring Valley, Respondent. Jack H. Rosenberg, Appellant.
    Argued November 27,1978;
    decided December 20, 1978

      APPEARANCES OF COUNSEL

      Jack H. Rosenberg, appellant pro se.

      Doris F. Ulman, Village Attorney, for respondent.
   OPINION OF THE COURT

Order affirmed, without costs, on the memorandum at the Appellate Division (64 AD2d 681).

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


text:
    In the Matter of William Watkins, Respondent, v Philip Toia, as Commissioner of the New York State Department of Social Services, Appellant, et al., Respondent.
    Argued November 30, 1978;
    decided December 20,1978

      APPEARANCES OF COUNSEL

      Louis J. Lefkowitz, Attorney-General (Maryellen Weinberg and Samuel A. Hirshowitz of counsel), for appellant.

      Douglass J. Seidman, Leonard S. Clark and Charles Robert for respondent.
   OPINION OF THE COURT

Memorandum.

Judgment affirmed, with costs. Section 366 of the Social Services Law precipitates a conundrum, like some ancient riddle, to which no one, including the parties, can offer a satisfactory logical resolution. This much is evident, however: Under the applicable formula of paragraph (c) of subdivision 2 petitioner is entitled to Medicaid reimbursement for medical costs in excess of $838.56, the formula amount by which his annualized income exceeds the Medicaid eligibility level. It is noted, also, that the commissioner presents no persuasive authority to support his contention that Medicaid payments to the provider hospital may not be supplemented from the patient’s own funds (see People v Woman's Christian Assn. of Jamestown, 44 NY2d 466, 472). Thus, depending on the terms and conditions obtainable from the hospital, the County Department of Social Services may be liable to reimburse the hospital for $482.32, in addition to payments, if any, made by petitioner. The computation itself, which may depend on what reimbursement the hospital, not a party to this proceeding, is willing to accept, must be left to the commissioner.

It is noted, too, that elimination of the conundrum requires solution by legislation or rulemaking, if authorized by existing statutes. The courts cannot fill a gap created by an irrational conundrum, but the minimal resolution required in this case, to accommodate to the manifested legislative intent, requires payment of at least part of a needy patient’s medical needs. Moreover, if the agency’s purpose is to control the rates charged by providers a more direct form of regulation is required (see People v Woman’s Christian Assn. of Jamestown, 44 NY2d 466, 472-473, supra).

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

Judgment affirmed.


text:
    Church of the Ascension et al., Respondents, v New York State Racing and Wagering Board et al., Appellants, et al., Respondent.
    Argued November 30, 1978;
    decided December 20, 1978

      APPEARANCES OF COUNSEL

      Louis J. Lefkowitz, Attorney-General (Robert S. Hammer and Samuel A. Hirshowitz of counsel), for New York State Racing and Wagering Board, appellant.

      Ira M. Relfer, Mark A. Bogart and Abraham Weinstein for Belfran Industries, appellant.

      Bernard Perlman for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, without costs.

Both the determination of the Bingo Control Commission granting respondents leave to file notices of appeal nunc pro tunc and the determination of the Racing and Wagering Board vacating that order were made while the Bingo Control Commission was vested with the authority to regulate the game of bingo. The State Purposes Appropriation Bill (L 1975, ch 50) neither abolished the Bingo Control Commission, nor transferred its authority to the Racing and Wagering Board. (Cf. Ball v State of New York, 41 NY2d 617, 625.) Accordingly, the Racing and Wagering Board had no authority to vacate the order of the Bingo Control Commission granting respondents leave to file notices of appeal nunc pro tunc. We note, however, as did the Appellate Division, that inasmuch as the propriety of the order of the Bingo Control Commission is not before us on this appeal, we express no opinion on this issue.

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

Order affirmed.


text:
    Eugene E. Drago, Respondent, v Madeleine Buonagurio, as Administratrix of the Estate of Francis B. Buonagurio, Deceased, Defendant, and Jerome D. Brownstein, Appellant.
    Argued November 27, 1978;
    decided December 20, 1978

      APPEARANCES OF COUNSEL

      James S. Carter and William P. Soronen, Jr., for appellant.

      Harold E. Blodgett for respondent.

      J. Richard Burns, James F. Johnson, 4th, and Michael A. Ellenberg for The Medical Society of the State of New York, amicus curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the order of Special Term granting defendant Brownstein’s motion to dismiss the complaint as against him for failure to state a cause of action reinstated.

The allegations of the complaint are described in the opinions at Special Term and in the Appellate Division. We agree with those courts, and for the reasons stated by them, that the complaint does not state a cause of action in negligence, abuse of process or malicious prosecution. Nor does it allege a cause of action for what is sometimes labeled a "prima facie tort”, i.e., "the intentional malicious injury to another by otherwise lawful means without economic or social justification, but solely to harm the other” (Morrison v National Broadcasting Co., 24 AD2d 284, 287, revd on other grounds 19 NY2d. 453). Whatever may be the constraints imposed by the Code of Professional Responsibility with the associated sanctions of professional discipline when baseless legal proceedings are instituted by a lawyer on behalf of a client, the courts have not recognized any liability of the lawyer to third parties therefor where the factual situations have not fallen within one of the acknowledged categories of tort or contract liability. That there are proposals before the Legislature to create new liabilities in such a circumstance (e.g., Senate Bill No. 8002 and Assembly Bill No. 10586 [1978], to amend Civil Rights Law, § 70) is an additional reason for judicial restraint in response to invitations to recognize what is conceded to be perhaps a "new, novel or nameless” cause of action. We conclude that the complaint fails to state a cognizable cause of action.

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

Order reversed, with costs, and the order of Special Term reinstated in a memorandum. Question certified answered in the affirmative.


text:
    The People of the State of New York, Respondent, v Chester Davis, Appellant.
    Argued November 28, 1978;
    decided December 20, 1978

      APPEARANCES OF COUNSEL

      Stanley Green for appellant.

      Robert M. Morgenthau, District Attorney (Richard M. Seltzer and Robert M. Pitler of counsel), for respondent.
   OPINION OF THE COURT

Per Curiam.

Defendant appeals from an order of the Appellate Division which affirmed a judgment convicting him of felony murder on a jury verdict. Addressing the only issue of substance tendered on the appeal, the court unanimously concludes that CPL 60.50 does not require corroboration of defendant’s confession to the underlying predicate felony of robbery. Inasmuch as the legal question involved does not raise considerations of fundamental justice or jurisprudence and is subject to legislative resolution, those members of the court who have previously taken a different view (see People v Murray, 40 NY2d 327), in order to manifest desirable judicial stability, join in this unanimous opinion (cf. Baden v Staples, 45 NY2d 889).

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

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

Order affirmed.


text:
    H. Sand & Co., Inc., Respondent, v Harrison Goldin, as Comptroller of the City of New York, Appellant. H. Sand & Co., Inc., Respondent, v Board of Education of the City of New York, Appellant.
    Argued November 27, 1978;
    decided December 20, 1978

      APPEARANCES OF COUNSEL

      Allen G. Schwartz, Corporation Counsel (James P. Griffin and L. Kevin Sheridan of counsel), for appellants.

      Melvin J. Kalish for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the opinion by Mr. Justice Vincent A. Lupiano at the Appellate Division (59 AD2d 213).

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


text:
    In the Matter of Stanley Love et al., as Executors of Minerva Love, Deceased, Appellants. Jane L. Lee, as Executrix of Minerva Love, Deceased, Respondent.
    Argued November 28, 1978;
    decided December 20, 1978

      APPEARANCES OF COUNSEL

      L. Robert Primoff for appellants.

      Ira A. Turret, Arthur N. Field and Robert Horan for respondent.
   OPINION OF THE COURT

Order affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the estate, for the reasons stated by Surrogate Millard L. Midonick. The record does not provide any basis for concluding that the evidence is insufficient, as a matter of law, to meet the standard of clear and convincing evidence required to establish that the decedent made valid inter vivos gifts to her daughter.

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


text:
    John Charalambakis, as Parent and Natural Guardian of Anastasia Charalambakis, an Infant, et al., Respondents, v City of New York et al., Appellants.
    Argued November 30, 1978;
    decided December 20, 1978

      APPEARANCES OF COUNSEL

      Allen G. Schwartz, Corporation Counsel (Bernard Burstein and Laurence B. Jones of counsel), for appellant.

      Michael Dubow for respondent.
   OPINION OF THE COURT

Memorandum.

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

Generally, a notice of claim against a municipality must be filed "within ninety days after the claim arises” (General Municipal Law, § 50-e, subd 1). Under the law as it existed when the claim arose in this case, where a claimant because of infancy failed to serve a timely notice of claim, the court, in its discretion, could grant leave to file a late notice of claim (see Matter of Beary v City of Rye, 44 NY2d 398). The application for leave to so file had to be made "within the period of one year after the happening of the event upon which the claim is based.” (General Municipal Law, § 50-e, subd 5, as amd by L 1976, ch 745.) In this case the application was concededly not made within this period.

It is argued, however, that the infant was undergoing "continuous treatment” during the period of her visits to the hospital, and therefore that the one-year statutory period did not begin to run until September 25, 1974, the date of her last hospital visit. But the continuous treatment doctrine is applicable only "when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint” (Borgia v City of New York, 12 NY2d 151, 155). Here, since the infant’s visits to the hospital were, so far as averred, merely for routine pediatric examinations, the infant appearing during this period to be in perfect health, the continuous treatment doctrine should not be applied (Davis v City of New York, 38 NY2d 257).

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

Order reversed, with costs, and the application to file a late notice of claim denied in a memorandum.


author: Fuchsberg, J.

text:
    Morris Kaufman, Respondent, v Henry Brenner et al., Appellants.
    Argued November 27, 1978;
    decided December 20, 1978

      APPEARANCES OF COUNSEL

      Stuart A. Jackson, Michael J. Ricigliano and Guy R. Fair-stein for appellants.

      Joseph F. Carlino and Julian Jawitz for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (63 AD2d 692). Question certified answered in the affirmative.

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

Fuchsberg, J.

(dissenting). I would modify the order of the Appellate Division so as to reinstate defendant’s demand for a jury trial.

The right to trial by jury is top well, too long and too deservedly enshrined in our system of government to need exposition here. It certainly has not been surrendered to the merger of the law and equity sides of our courts (for an interesting development of its history in New York see Matter of Luria, 63 Misc 2d 675 [Sobel, S.]). A fortiori, absent a waiver, a jury is not foresworn merely because a litigant seeks equitable relief as an incident to a quest for money damages.

In the present case, plaintiff Kaufman claims he exercised an option under a contract to sell his stock interest in two corporations to the defendant Brenner for a total of $1,350,-000. As fringe terms of the contract, Brenner, it is also alleged, agreed that the corporations would continue Kaufman’s group insurance coverage for a period of five years and hold him harmless from possible corporate taxes or other liabilities resulting from his former corporate activity. The relatively minor economic impact of the value of the insurance and hold harmless provisions on the over-all agreement is readily apparent from Kaufman’s complaint. While his first cause of action asks specific performance of the contract, it is followed by four "alternative” causes of action that sound in "debt” or "breach of contract”. These traditionally legal claims seek money damages for the full $1,350,000 which the contract expressly stipulates. Thus, as the well-reasoned dissent of Mr. Justice Suozzi at the Appellate Division put it, "the thrust of plaintiff’s action is clearly the recovery at law of monetary damages” (63 AD2d 692, 694).

One could hardly deny that, if Kaufman had decided to reverse the order in which the self-same causes of action were listed in his complaint, placing the four for money damages in debt or contract at the beginning and the single one asking for specific performance under the heading "alternate” at the end, the equity action would immediately be flagged as peripheral. Obviously, "alternate” and "incidental” are not the same; in any event I would make no fetish of the use of either word when the substance to which they attach speaks for itself. Without gainsaying Kaufman’s privilege to waive a jury for himself, certainly Brenner, whose pleadings asserted typical law defenses — that the contract was not authorized by the corporations, that in any event Kaufman did not comply with conditions precedent to his exercise of the option, and that therefore there was no breach of contract — could not be deprived of his own right to a jury trial merely by Kaufman’s arbitrary choice of the order in which he listed and the "words, allegations or the prayer for judgment” by which he labeled the causes of action in his complaint (City of Syracuse v Hogan, 234 NY 457, 461, 462-463 [McLaughlin, J.]; Di Menna v Cooper & Evans Co., 220 NY 391, 395 [Cardozo, J.]).

Order affirmed, etc.


text:
    City of New York, Appellant, v George P. Baker et al., as Trustees of the Property of Penn Central Transportation Company, Respondents.
    Argued November 29, 1978;
    decided December 20, 1978

      APPEARANCES OF COUNSEL

      Allen G. Schwartz, Corporation Counsel (Judah Dick and L. Kevin Sheridan of counsel), for appellant.

      William P. Jones for respondent.
   OPINION OF THE COURT

Memorandum.

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

Whatever the limitations on the ultimate collection of any judgment that may be recovered, the bankruptcy court has neither issued a specific stay nor granted prior leave to the city to bring the present plenary suit against the defendants (trustees of a railroad in reorganization under subdivision [a] of section 77 of the Bankruptcy Act [US Code, tit 11, § 205, subd (a)]) for wharfage charges incurred after the commencement of the reorganization and for money damages for what, according to the complaint, are breaches of agreements to pay rentals and provide maintenance on certain properties during the same period. In addition, it cannot be determined beyond argument whether the litigation falls within the proscriptive scope of Order No. 1. Though the original leases between the railroad and the city were entered into and indeed expired prior to the bankruptcy, the bankrupt continued to occupy the premises on the same terms and conditions as holdover tenant following the institution of the reorganization proceeding.

Inasmuch as the reorganization court can stay any action that might impede or alter the bankrupt’s continued operation, we leave to that court the determination whether this litigation should be permitted to be prosecuted (see US Code, tit 28, § 959; Thompson v Texas Mexican Ry. Co., 328 US 134; see City of New York v Patton, 390 F Supp 1001; 6 Collier, Bankruptcy [14th ed], par 3.31, subd [2]).

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

Order reversed, etc.


text:
    Laura Holscher et al., Appellants, v State of New York, Respondent.
    (Claim No. 58920-F.)
    Argued November 27, 1978;
    decided December 20, 1978

      APPEARANCES OF COUNSEL

      William W. Owens and Richard J. Duffy for appellants.

      Louis J. Lefkowitz, Attorney-General (Douglas L. Manley and Ruth Kessler Toch of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the opinion by Mr. Justice John L. Larkin at the Appellate Division (59 AD2d 224).

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


text:
    County of Nassau, Appellant, v South Farmingdale Water District, Respondent.
    Argued November 29, 1978;
    decided December 21, 1978

      APPEARANCES OF COUNSEL

      Edward G. McCabe (Robert O. Boyhan and Robert S. Hoshino of counsel), for appellant.

      Gregory W. Carman for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the opinion by Mr. Justice Joseph A. Suozzi at the Appellate Division (62 AD2d 380), recognizing, as a caveat, however, that the demarcation between governmental or proprietary interests in property owned or operated by government or its subdivisions no longer is as clear as it was in the past.

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


text:
    Designcraft Jewel Industries, Appellant, v St. Paul Fire and Marine Insurance Company, Respondent, et al., Defendant. Designcraft Jewel Industries, Inc., Plaintiff, v Gleicher-Lowenfeld, Inc., et al., Defendants.
    Argued November 28, 1978;
    decided December 21, 1978

      APPEARANCES OF COUNSEL

      Frank A. Weg for appellant.

      Solomon M. Cheser for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (59 AD2d 857).

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


text:
    Walter W. Wolpert, Appellant, v First National Bank of East Islip et al., Respondents.
    Submitted November 30, 1978;
    decided December 21,1978

      APPEARANCES OF COUNSEL

      Morris Rochman and Joel H. Joseph for appellant.

      Leslie Kirsch for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (60 AD2d 577).

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


text:
    The People of the State of New York, Respondent, v Gill Williams, Appellant.
    Argued December 1, 1978;
    decided December 21, 1978

      APPEARANCES OF COUNSEL

      Robert N. Cowen for appellant.

      John J. Santucci, District Attorney (Vincent J. Carroll, Jr., of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, and the case remitted for a new trial.

Defendant was convicted, on a jury verdict, of criminal sale of a controlled substance in the third degree and of criminal sale of a controlled substance in the sixth degree, arising out of sales to an undercover police officer on February 26 and March 6, 1975. After a pretrial hearing, the trial court granted defendant’s motion for an order precluding the prosecutor from examining defendant concerning his outstanding conviction for criminal possession of a controlled substance in the seventh degree resulting from an arrest on August 8, 1974.

On trial, before defendant took the stand, defense counsel first called one Deborah Davis, who resided in defendant’s apartment. On cross-examination the prosecutor asked several questions of Miss Davis in an apparent effort to test her credibility. The cross-examination then proceeded as follows:

"Q. Do you recall the date of August 8, 1975?

"A. No.

"Q. Anything unusual happen on that date?

"A. Nothing unusual. Same.

"Q. If I told you on August 8, 1975, Gill Williams was arrested on another charge, would that refresh your recollection?”

Defense counsel immediately objected to the question and moved for a mistrial. The prosecution contended that the material could be used for the purpose of testing the credibility of a third-party witness even if its use to impeach the defendant had been precluded; defense counsel took the opposite position and stated further that he was unaware of any arrest in 1975. The prosecutor said that he had reviewed defendant’s file and that it was his recollection that the arrest was in 1975. The court cautioned: "Sir, you better be very sure that he was arrested on August 8, 1975.” On the basis of the prosecutor’s assurances the court allowed the questions and answers to stand, and instructed the jury that the testimony related solely to the issue of Miss Davis’ credibility. Again, defense counsel excepted. The court denied the motion for a mistrial.

During redirect examination of defendant the court, apparently for the first time, reviewed a copy of defendant’s arrest record and motioned counsel to the bench. It was then discovered that there had indeed been no arrest in 1975 and that the only arrest to which the prosecutor could have been referring was that on August 8, 1974, inquiry as to which had been precluded after the pretrial hearing. At this point after Miss Davis had left the stand and shortly before defendant completed his testimony the court instructed the jury that there had been no arrest on August 8, 1975.

In the circumstances we conclude that it was error to have permitted the question and that the curative instructions were insufficient to remedy the error. The carelessness of the prosecutor in initially confusing dates and then persisting in such confusion when specifically alerted by the trial court may scarcely be advanced in justification. The preclusion order, although related expressly to use of the material on examination of defendant, foreclosed inquiry with respect to the August 8, 1974 transaction on interrogation of a witness as well, as the Trial Judge perceived. Accordingly, defendant’s convictions must be set aside and the case remitted for a new trial.

In view of this conclusion and disposition we find it unnecessary to consider or reach the other contentions of error advanced on defendant’s behalf. To avoid a possible misreading of our disposition of this appeal, however, it should be noted that the arrest in this instance was followed by a conviction. This having been so, we do not address the issue whether a question as to an arrest which did not culminate in a conviction constitutes reversible error. (See Richardson, Evidence [10th ed], § 506, p 496.)

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

Order reversed, etc.


text:
    Chase Manhattan Bank, N.A., Appellant, v Samuel A. Mehlman, as Trustee for the Adele Mehlman Trust and for the David Elkind Trust, Respondent.
    Argued November 28, 1978;
    decided December 21,1978

      APPEARANCES OF COUNSEL

      Thomas W. Jackson, Jeffrey I. Slonim and Kathryn B. Solley for appellant.

      Joseph P. Giasi, Jr., and John Anthony Smith for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (59 AD2d 694).

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


text:
    Hilde Snowberger, as Parent of Her Infant Child, Norma Snowberger, et al., Respondents, v Philip L. Toia, as Commissioner of the New York State Department of Social Services, et al., Appellants.
    Argued November 29, 1978;
    decided December 21, 1978

      APPEARANCES OF COUNSEL

      Roger E. Pyle for Ronald B. Hackett, appellant.

      Louis J. Lefkowitz, Attorney-General (Clifford A. Royael and Jean M. Coon of counsel), for Philip L. Toia, appellant.

      Robert A. Russell for respondents.
   OPINION OF THE COURT

Judgment affirmed, without costs, on the memorandum at the Appellate Division (60 AD2d 783).

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


text:
    The People of the State of New York, Respondent, v Robert F. Carl, Appellant.
    Argued December 1,1978;
    decided December 21,1978

      APPEARANCES OF COUNSEL

      John M. Nonna for appellant.

      D. Bruce Crew, III, District Attorney, for respondent.
   OPINION OF THE COURT

Memorandum.

The motion to suppress should have been granted because the defendant was represented by counsel when he was questioned by the police in the county jail (People v Hobson, 39 NY2d 479). Indeed following his arraignment, and prior to his being questioned at the county jail, counsel assigned to represent him sent a letter to the Sheriff notifying him of the assignment and directing that no one, other than a relative, be permitted to question or confer with the defendant, without counsel being present. The fact that the police officers questioned the defendant about a different crime than the one for which he was being held is a technicality of little significance in this case. Concededly both incidents involved burglaries or attempted burglaries at the same location, the Tanner Building Company, and were little more than a week apart. In fact the Grand Jury considered the charges together, and the defendant was indicted for both incidents in the same indictment. Thus the charges were sufficiently related (see, e.g., People v Vella, 21 NY2d 249; compare People v Taylor, 27 NY2d 327; People v Hetherington, 27 NY2d 242) and the police should not have questioned the defendant in the absence of counsel.

Since the case must be remitted for further proceedings on the indictment we should note that the court should not have summarily denied the defendant’s request to represent himself (People v McIntyre, 36 NY2d 10). If upon remittal the defendant renews the application the court should make further inquiry to insure that the defendant is fully aware of the consequences (People v Reason, 37 NY2d 351; see, also, People v McIntyre, supra, p 17). The fact that the defendant intends or may intend to present an insanity defense does not preclude him from representing himself provided, of course, he is found competent to proceed (People v Reason, supra).

Accordingly, the order of the Appellate Division should be reversed, the motion to suppress granted, the plea set aside and the case remitted to the trial court for further proceedings on the indictment.

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

Order reversed, motion to suppress granted, plea vacated, and case remitted to Chemung County Court for further proceedings on the indictment in a memorandum.


text:
    Francis J. McCallin et al., Individually and on Behalf of All Persons Similarly Situated, Appellants, v Jeremiah T. Walsh, as Commissioner of the Buildings Department of the City of New York, et al., Respondents. Beckrose Estates et al., Appellants, v John T. O’Hagan, as Commissioner of the Fire Department of the City of New York, et al., Respondents. 49-50 Associates et al., Appellants, v John T. O’Hagan, as Commissioner of the Fire Department of the City of New York, et al., Respondents. Melvyn Kaufman et al., Appellants, v John T. O’Hagan, as Commissioner of the Fire Department of the City of New York, et al., Respondents.
    Argued November 29, 1978;
    decided December 21, 1978

      APPEARANCES OF COUNSEL

      William M. Kufeld, Lewis Bart Stone and Norman Flitt for appellants in the first above-entitled action.

      Harold Dublirer for appellants in the second, third and fourth above-entitled actions.

      Allen G. Schwartz, Corporation Counsel (Morris Einhorn and L. Kevin Sheridan of counsel), for respondents.

      Bernard S. Meyer and Jeffrey G. Stark for New York Sprinkler Contractor’s Association, amicus curiae.

   OPINION OF THE COURT

In each case: Order affirmed, with costs, on the opinion by Mr. Justice Joseph P. Sullivan at the Appellate Division (64 AD2d 46), noting that the order at the Appellate Division incorporated the prevailing opinion in that court (see CPLR 5712, subd [c], par 2).

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


text:
    B. G. Equipment Co., Inc., Appellant, v American Insurance Company, Respondent.
    Argued November 30,1978;
    decided December 21,1978

      APPEARANCES OF COUNSEL

      Percival D. Oviatt, Jr., for appellant.

      Howard L. Meyer and Robert N. Convissar for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the opinion of Mr. Justice Michael F. Dillon at the Appellate Division (61 AD2d 247).

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


text:
    Bradford B. Broughton, Appellant, v Frederick V. Dona, Jr., et al., Respondents.
    Decided December 21, 1978
   Appeal from order denying appellant’s motion for a subpoena duces tecum 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.


text:
    Richard A. Corkum, Individually and in His Representative Capacity as President of the Court Clerks Benevolent Association, et al., Appellants, v Richard J. Bartlett, as Chief Administrative Judge of the Unified Court System of the State of New York, Respondent. James R. Hannon, Individually and as President of the New York State Supreme Court Officers Association, Intervenor-Appellant.
    Submitted December 20, 1978;
    decided December 21, 1978
   Motion for a stay granted only to the extent of staying respondent from establishing or adopting any classification or title standards plan for nonjudicial positions in the Unified Court System and from implementing any classification or title standards plan for nonjudicial positions in the Unified Court System; motion otherwise denied.


text:
    In the Matter of Gerald G. G. (Anonymous). Kerry B. M. (Anonymous) et al., Appellants; Gerald P. G. (Anonymous), Respondent.
    Submitted November 20,1978;
    decided December 21,1978
   Motion to dismiss the appeal herein denied. If within 30 days from the date hereof appellants have not returned the child who is the subject of this proceeding to this jurisdiction and posted a bond, in an amount to be fixed by the Family Court, Orange County, to insure that the child will remain within the jurisdiction of the court, respondent may renew his motion to dismiss or to stay determination of the appeal. Upon renewal the court will consider the availability of that relief to respondent under the circumstances then existing.


text:
    In the Matter of Warren R. Standen, Respondent, v Donald J. Mark, as County Court Judge of the County of Monroe, et al., Appellants.
    Submitted December 11,1978;
    decided December 21, 1978
   Motion for leave to appeal dismissed for mootness.


text:
    The People of the State of New York, Respondent, v Matija Curinaj, Appellant.
    Submitted December 18, 1978;
    decided December 21, 1978
   Motion to dismiss the appeal herein granted and the appeal dismissed upon the ground that the order is not adverse to appellant as required by CPL 450.90 (subd 1).


text:
    In the Matter of Howard Randolph, Respondent, v New York City Department of Social Services et al., Appellants.
    Argued November 28, 1978;
    decided December 27, 1978

      APPEARANCES OF COUNSEL

      Allen G. Schwartz, Corporation Counsel (Paul T. Rephen and Leonard Koemer of counsel), for appellants.

      Jeffrey L. Kriesberg, Stephen F. Gordon and Gerald J. Barre for respondent.
   OPINION OF THE COURT

Order reversed, without costs, and the petition dismissed on so much of the dissenting opinion by Mr. Justice Vincent A. Lupiano at the Appellate Division in Matter of Franchina v Codd (46 NY2d 816 decided herewith) as is concerned with the substantive issues arising under subdivision 2 of section 80 of the Civil Service Law and rule 6.2.1 of the New York City Civil Service Commission (57 AD2d 394, 400-405). Question certified answered in the negative.

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


text:
    In the Matter of Joseph B. Franchina, Respondent, v Michael J. Codd, as Police Commissioner of the Police Department of the City of New York, et al., Appellants. In the Matter of Leon Moore, Respondent, v Alphonse D’Ambrose, as City Personnel Director and as Chairman of the City Civil Service Commission, et al., Appellants. In the Matter of Vyto Atkatsh, Respondent, v Michael J. Codd, as Police Commissioner of the City of New York, et al., Appellants. In the Matter of James J. McCabe, Respondent, v Michael J. Codd, as Police Commissioner of the City of New York, et al., Appellants.
    Argued November 28, 1978;
    decided December 27, 1978

      APPEARANCES OF COUNSEL

      Allen G. Schwartz, Corporation Counsel (Paul T. Rephen and L. Kevin Sheridan of counsel), for appellants.

      Jonathon D. Warner for respondents in the first, second and fourth above-entitled proceedings.

      Richard D. Dienst for respondent in the third above-entitled proceeding.
   OPINION OF THE COURT

In each case: Order reversed, without costs, and the petition dismissed on so much of the dissenting opinion by Mr. Justice Vincent A. Lupiano at the Appellate Division as is concerned with the substantive issues arising under subdivision 2 of section 80 of the Civil Service Law and rule 6.2.1 of the Rules and Regulations of the New York City Civil Service Commission (57 AD2d 394, 400-405). Question certified answered in the negative.

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


text:
    The People of the State of New York, Respondent, v Juan Jose Dorta, Jr., Appellant.
    Argued December 1, 1978;
    decided December 27, 1978

      APPEARANCES OF COUNSEL

      Abraham Hecht for appellant.

      Eugene Gold, District Attorney (Jane S. Meyers 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 felony murder, the predicate felony being robbery. Although evidence at trial showed that one Deborah Andersen was present in the victim’s apartment during both the conversation concerning the possible robbery and the commission of the crime, the record is devoid of any direct proof that she aided in the preparation or execution of the crimes of which the defendant was charged. Under these circumstances, the Trial Judge properly submitted the question of whether or not Deborah Andersen was an accomplice to the trier of the facts. (E.g., People v Basch, 36 NY2d 154, 157; People v Clougher, 246 NY 106, 111.)

CPL 60.22 (subd 2) defines an "accomplice” whose testimony must be supported by corroborative evidence as "a witness in á criminal action who, according to evidence adduced in such action, may reasonably be considered to have participated in: (a) The offense charged; or (b) An offense based upon the same or some of the same facts or conduct which constitute the offense charged.” While the inclusion of paragraph (b) was intended by the Legislature to expand what was envisioned to be an unduly restrictive common-law definition of an accomplice (see People v Beaudet, 32 NY2d 371, 378), there remains the requirement that the alleged accomplice be in some manner "implicated in, and possibly subject to, prosecution for the general conduct or factual transaction on trial.” (Denzer, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 60.22, pp 194-195; see People v Basch, 36 NY2d 154, 157, supra.) It cannot be said, as a matter of law, that this requirement was met in this instance.

We have examined the remainder of defendant’s contentions and have found them to be without merit.

There remains for comment, however, one additional point. This case is now before the court by permission of a Justice of the Appellate Division who did not participate in its disposition in the court below. While such procedure is presently authorized (CPL 460.20, subd 2, par [a]), we believe the better practice to be that which was recently advocated by the Advisory Committee on Criminal Law and Procedure — to wit, that an appellant be prohibited from seeking leave to appeal to the Court of Appeals from a Justice of the Appellate Division who did not participate in the determination of the case. (Twenty Second Ann Report of the Administrative Bd. of the NY Judicial Conference 1977, p 318.)

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Raymond Leach, Appellant.
    Argued November 29,1978;
    decided December 27,1978

      APPEARANCES OF COUNSEL

      Stanley A. Teitler and Martin E. Fiel for appellant.

      Eugene Gold, District Attorney (Mark M. Baker of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed on the opinion by Mr. Justice Samuel Rabin at the Appellate Division (57 AD2d 332; see also, People v Key, 45 NY2d 111, 120).

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


text:
    In the Matter of Ben Mendelsohn, Respondent, v Philip L. Toia, Individually and as Commissioner of the New York State Department of Social Services, et al., Appellants.
    Argued November 30,1978;
    decided December 27,1978

      APPEARANCES OF COUNSEL

      Louis J. Lefkowitz, Attorney-General (Sanford Peyser, Samuel A. Hirshowitz and Herbert J. Wallenstein of counsel), for Philip L. Toia, as Commissioner of the New York State Department of Social Services, appellant.

      Samuel S. Yasgur, County Attorney (Evelyn K. Isaac and Jonathan Lovett of counsel), for Charles W. Bates, as Commissioner of the Westchester County Department of Social Services, appellant.

      Gerald A. Norlander and Martin A. Schwartz for respondent.
   OPINION OF THE COURT

Memorandum.

The order appealed from should be reversed, without costs.

Petitioner’s request for public assistance to finance the expense of his wife’s funeral was properly denied. Subdivision 3 of section 141 of the Social Services Law provides that the public welfare official for an area may pay all or part of the funeral expenses "[w]hen burial arrangements for a recipient of public assistance or care are made by relatives or friends of the deceased and the expense of such burial does not exceed the amount fixed by the appropriate public welfare official or the local appropriating body for similar burials in similar circumstances”. The Westchester County Department of Social Services fixed the maximum reimbursable amount for a funeral at $650 by regulation which provided that "[t]he department will pay up to $650 from public funds for a complete funeral (including grave and grave opening) of adult persons who die in Westchester County leaving no insurance, no Social Security death benefit, no assets and when responsible relatives are financially unable to pay the cost of burial in whole or in part, and money is not available from any other source. Total funeral bill cannot exceed $650” (emphasis added). Nothwithstanding his awareness of the regulation, petitioner arranged for a funeral which cost $1,312.42, and the Department of Social Services denied reimbursement. This denial, in the face of clear statutory language and an equally clear implementing regulation, was proper.

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

Order reversed, without costs, and the determination of the State Commissioner reinstated in a memorandum.


text:
    The People of the State of New York, Respondent, v Sammie Lewis, Appellant.
    Argued December 1, 1978;
    decided December 27, 1978
    APPEARANCES OF COUNSEL

      Gerald T. Barth and George T. Dunn for appellant.

      Richard A. Hennessy, Jr., District Attorney (John A. Cirando and Edward Z. Menkin of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order appealed from should be affirmed. The defendant was charged with two counts of murder in the second degree, three counts of weapons possession and possession of gambling records. After extensive plea negotiations in which his two retained attorneys actively participated, he entered a plea of guilty to two counts of manslaughter in the first degree in satisfaction of all counts of the indictment. Prior to sentencing he moved to vacate the guilty plea claiming "coercion”. The coercion asserted was solely that the defendant’s family had visited him in prison and allegedly convinced him to plead guilty. Extended argument was had on the motion for withdrawal of the plea, including a review by the court of the plea minutes, the jail visitation sheets and statements by and on behalf of defendant. The motion for withdrawal of the plea was subsequently denied without a hearing. The defendant now asserts that he was entitled to a hearing on his claim of "innocence and coercion”. It appears that he is not. "Only in the rare instance will a defendant be entitled to an evidentiary hearing; often a limited interrogation by the court will suffice” (People v Tinsley, 35 NY2d 926, 927; People v Frederick, 45 NY2d 520). In this situation there was no reason for holding a hearing and the court properly denied it, based on his review of the plea minutes, the visitation records and, as he stated, "that on the underlying evidence it was in [defendant’s] best interest” to have entered the bargained plea.

We have never recognized "coercion” by family members as a reason for withdrawing a guilty plea. Indeed, we recognize that in times of trouble an accused person must often rely on the counsel of his family when making the difficult decision to plead guilty or stand trial. If this "coercion” combined with a conclusory statement of innocence was grounds for upsetting a plea of guilty, the plea would be essentially revocable at will.

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

Order affirmed in a memorandum.


text:
    Elizabeth Lester, Appellant, v Mrs. Carl Harris et al., Constituting the Board of Education of the Pittsford Central School District, Respondents.
    Argued November 28, 1978;
    decided December 27, 1978

      APPEARANCES OF COUNSEL

      Irving Pheterson for appellant.

      William T. Lehman for respondent.
   OPINION OF THE COURT

Order affirmed, without costs, on the memorandum at the Appellate Division (60 AD2d 791).

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


text:
    Nassau Insurance Company, Appellant, v Diane M. Murray et al., Respondents. In the Matter of Empire Mutual Insurance Company, Appellant, v Philip Sash et al., Respondents.
    Argued October 27, 1978;
    decided December 27,1978

      APPEARANCES OF COUNSEL

      Bertram Herman for Nassau Insurance Company, appellant.

      Philip Hoffer, Rose L. Hoffer and Peter T. Affatato for Empire Mutual Insurance Company, appellant.

      Charles F. Brady and Benjamin Purvin for Allstate Insurance Company, respondent.

      Leonard Sheft for Aetna Insurance Company, respondent.

      Dolores Gerber for Criterion Insurance Company, respondent.
   OPINION OF THE COURT

Memorandum.

In both cases, the orders of the Appellate Division should be affirmed, with costs.

Where, as here, the proof exhibits an office practice and procedure followed by the insurers in the regular course of their business, which shows that the notices of cancellation have been duly addressed and mailed, a presumption arises that those notices have been received by the insureds (News Syndicate Co. v Gatti Paper Stock Corp., 256 NY 211, 214; Gardam & Son v Batterson, 198 NY 175, 178; Richardson, Evidence [Prince — 10th ed], § 80). Denial of receipt by the insureds, standing alone, is insufficient to rebut the presumption. In addition to a claim of no receipt, there must be a showing that routine office practice was not followed or was so careless that it would be unreasonable to assume that the notice was mailed (see Trusts & Guar. Co. v Barnhardt, 270 NY 350, 354-355). We would hasten to add, however, that in order for the presumption to arise, office practice must be geared so as to ensure the likelihood that a notice of cancellation is always properly addressed and mailed.

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

In each case: Order affirmed.


text:
    Lawrence Yetman et al., Respondents, v Alphonse E. D’Ambrose, as Director of the Department of Personnel and Chairman of the Civil Service Commission of the City of New York, et al., Appellants. In the Matter of Patrick T. McCarthy et al., Respondents, v Thomas F. Roche, as City Personnel Director of the Department of Personnel and Chairman of the Civil Service Commission of the City of New York, et al., Appellants. Seymour Gewirtz, Respondent, v Alphonse D’Ambrose et al., as Members of the Department of Personnel and the Civil Service Commission of the City of New York, et al., Appellants.
    Argued November 30,1978;
    decided December 27,1978

      APPEARANCES OF COUNSEL

      Allen G. Schwartz, Corporation Counsel (Susan L. Bloom and L. Kevin Sheridan of counsel), for appellants.

      Richard K Shepard for respondents in the first above-entitled proceeding.

      Adolph D. Seltzer, Dominick F. Callo and Robert J. Cahn for respondents in the second above-entitled proceeding.

      Seymour Gewirtz, respondent pro se, in the third above-entitled proceeding.
   OPINION OF THE COURT

Memorandum.

In each case, the order of the Appellate Division should be reversed, with costs, and the petition dismissed.

Petitioners, members of the New York City Fire Department, successfully competed in a competitive examination for promotion to the rank of Lieutenant. A promotional eligibility list was promulgated on July 13, 1972. Subsequently, the Legislature amended section 85 (subd 1, par [c], cl [3]) of the Civil Service Law and extended the "time of war” period of the Korean conflict to January 31, 1955, thereby authorizing the grant of veterans’ preference credit on civil service examinations to persons who had served in the armed forces during that period (L 1976, ch 313 [eff June 8, 1976]). The effect of the amendment was to harmonize the State’s recognition of the dates of the Korean conflict with those of the Federal Government (US Code, tit 38, § 101, subd [9]).

Respondents denied petitioners’ requests to award them additional credits on their promotional examinations by reason of their service in the armed forces during the period embraced by the redefined duration of the Korean conflict. Claiming the amendatory legislation to be remedial and therefore retroactive, petitioners instituted these article 78 proceedings to compel respondents to award them additional veterans’ preference points on the ground that refusal to do so constituted arbitrary and capricious administrative action.

Recognizing that civil service eligibility lists must be finalized as soon as practicable, our Constitution specifies that veterans’ preference credit "shall be granted only at the time of the establishment of [the eligibility] list” (NY Const, art V, § 6; see, also, Civil Service Law, § 85, subd 3). Inasmuch as the eligibility list had already been made at the time the amendatory legislation was enacted, petitioners were not entitled to additional veterans’ preference credit. In view of the specific command of the Constitution, attempts to glean an intent on the part of the Legislature that this legislation be applied retroactively are unavailing.

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

In each case: Order reversed, etc.


text:
    Adirondack Park Agency, Respondent, and Kildare Club, by its Treasurer, Ralph Friedman, et al., Intervenors-Respondents, v Ton-Da-Lay Associates et al., Appellants.
    Submitted November 20, 1978;
    decided December 27,1978
   Motion, insofar as it renews a decided motion for leave to appeal, dismissed upon the ground that it does not lie, and, insofar as it may be considered as seeking reargument of the decided motion for leave to appeal, dismissed as untimely, with $20 costs and necessary reproduction disbursements. [See 45 NY2d 834.]


text:
    In the Matter of Shirley C. Soman, Individually and as Coexecutor of Robert Soman, Deceased, Respondent, v Dominick J. Dimaio, as Chief Medical Examiner of the City of New York, Appellant.
    Submitted November 13, 1978;
    decided December 27, 1978
   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 (Matter of F. J. Zeronda, Inc. v Town Bd. of Town of Halfmoon, 37 NY2d 198).


text:
    In the Matter of Thomas Wilson, Appellant, v Arthur Levitt, as State Comptroller and Administrative Head of the New York State Employee’s Retirement System, Respondent.
    Decided December 27, 1978
   Appeal transferred, by the Court of Appeals sua sponte, to the Appellate Division, Third Department, without costs, upon the ground that a direct appeal does not lie (NY Const, art VI, § 5, subd b; CPLR 5601, subd [b], par 2).


text:
    Carl H. Neuman, Doing Business as Sarah R. Neuman Nursing Home and Health Related Facility, et al., Appellants, v Charles J. Hynes, as Deputy Attorney-General of the State of New York, Respondent.
    Submitted December 18, 1978;
    decided December 27, 1978
   Motion to dismiss the appeal herein granted and the appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Pursuant to CPLR 5514 (subd a), any motion by appellants for permission to appeal shall be made within 10 days of the date hereof. Motion to vacate or condition the stay herein dismissed as academic. Cross motion for extension of time, etc., dismissed as academic.


text:
    New York Property Insurance Underwriting Association, Respondent, v Morris Goldfeld, Individually and Doing Business as Goldfeld Realty & Rentals, Appellant. Public Service Mutual Insurance Company, Respondent, v Morris Goldfeld, Individually and Doing Business as Goldfeld Realty & Rentals, Appellant.
    Submitted December 4,1978;
    decided December 27,1978
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the actions within the meaning of the Constitution (NY Const, art VI, § 3, par b; CPLR 5602, subd [a], par [i]).


text:
    John R. Quinzio, Appellant, v Town of Clay et al., Respondents. (And Six Other Titles.)
    Submitted November 6, 1978;
    decided December 27, 1978
   Motion, insofar as it seeks leave to appeal from orders which affirmed orders settling the record, dismissed upon the ground that those orders do not finally determine the action within the meaning of the Constitution. Motion, insofar as it seeks leave to appeal from orders which affirmed orders dismissing the complaints, denied.


text:
    John T. Stewart et al., Appellants, v Joel L. Scheinert et al., Respondents, et al., Defendants.
    Submitted December 16, 1978;
    decided December 27, 1978
   Motion to dismiss the appeal herein denied.


text:
    Ella M. Thrower et al., Respondents, v John J. Smith et al., Appellants, and Isidoro Perez, Respondent.
    Submitted November 13, 1978;
    decided December 27, 1978
   On the court’s own motion, order of the Appellate Division will be affirmed, without costs, and judgment absolute ordered against appellant Estate of Berens on said appellant’s stipulation, unless within 30 days appellant makes application to withdraw the appeal herein, in which event leave to do so is hereby granted. The decision at the Appellate Division having been made, in part, in the exercise of discretion, this court would be bound in any event to affirm and render judgment absolute. (CPLR 5615; see Cohen and Karger, Powers of the New York Court of Appeals, pp 295-296, 304-305.) Appellant Smith’s appeal withdrawn on consent. Respondent’s motion to dismiss the appeal herein dismissed as academic.


text:
    Wrecking Corporation of America, Appellant, v Memorial Hospital for Cancer and Allied Diseases, Respondent, et al., Defendant.
    Submitted November 13,1978;
    decided December 27, 1978
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. (See Lizza Inds. v Long Is. Light. Co., 36 NY2d 754; Walker v Sears, Roebuck & Co., 36 NY2d 695; cf. Ratka v St. Francis Hosp., 44 NY2d 604.)


text:
    Hylan Flying Service, Inc., et al., Appellants, v State of New York, Respondent.
    Submitted December 18,1978;
    decided January 4,1979
   Motion to dismiss the appeal herein denied (CPLR 5601, subd [a], par [iij; subd [d]).


text:
    In the Matter of John D. Calandra, Individually and as Senator Representing the 34th Senatorial District, et al., Appellants, v City of New York et al., Respondents.
    Submitted December 26, 1978;
    decided January 4, 1979
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that the nonfinal order sought to be appealed from is not one entered in a proceeding within the contemplation of CPLR 5602 (subd [a], par 2).


text:
    Pearl Carlin, Appellant, v Equitable Life Assurance Society of the United States, Respondent. (And Third- and Fourth-Party Actions.)
    Decided January 9, 1979
   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 (Walker v Sears, Roebuck & Co., 36 NY2d 695; Lizza Inds. v Long Is. Light. Co., 36 NY2d 754).


text:
    James Panico, as a Professional Fire Fighter and Member of the Fairview Fire District, Appellant, v Donald R. Young et al., Constituting the Fire Commissioners of the Fairview Fire District, Respondents.
    Submitted December 4,1978;
    decided January 9,1979
   Motion for leave to appeal denied. The Court of Appeals restates the rule that denial of a motion for leave to appeal is not equivalent to an affirmance and has no precedential value (see, e.g., Matter of Marchant v Mead-Morrison Mfg. Co., 252 NY 284, 297-298 [Cardozo, Ch. J.]; Matter of Brooklyn Hosp. v Lennon, 45 NY2d 820).


text:
    Town of Monroe, Appellant, v Hugh L. Carey, as Governor of the State of New York, et al., Respondents.
    Argued January 9, 1979;
    decided January 16, 1979

      APPEARANCES OF COUNSEL

      James G. Sweeney for appellant.

      Louis J. Lefkowitz, Attorney-General (Ezra I. Bialik, Samuel A. Hirshowitz and Philip Weinberg of counsel), for respondents.
   OPINION OF THE COURT

Judgment affirmed, with costs, for the reasons stated in the opinion by Mr. Justice George D. Burchell at Special Term.

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