text:
    Cornell University, Appellant-Respondent, v Elizabeth S. Bagnardi et al., Respondents-Appellants, and Charles Hindman et al., Intervenors-Respondents. In the Matter of Sarah Lawrence College, Appellant, v Zoning Board of Appeals of the City of Yonkers, Respondent, and Lawrence Park West and Neighborhood Homeowners Association, Inc., Intervenor-Respondent.
    Argued November 13, 1986;
    decided December 19, 1986

      POINTS OF COUNSEL

      Thomas Mead Santoro and Walter J. Relihan, Jr., for appellant-respondent in the first above-entitled action.
    I. This case presents the opportunity to reaffirm the public policy of this State favoring educational uses of property for the benefit of all. (Matter of Summit School v Neugent, 82 AD2d 463.) II. The trial court properly construed and applied New York State law on educational use exemptions to the case at bar. (Matter of New York Inst. of Technology v Le Boutillier, 33 NY2d 125; Matter of Westchester Reform Temple v Brown, 22 NY2d 488; Matter of Diocese of Rochester v Planning Bd., 1 NY2d 508; Matter of Wiltwyck School for Boys v Hill, 11 NY2d 182; Matter of Concordia Coll. Inst. v Miller, 301 NY 189; Jewish Reconstructionist Synagogue v Incorporated Vil. of Roslyn Harbor, 38 NY2d 283; Matter of Islamic Socy. v Foley, 96 AD2d 536; Diocese of Buffalo v Buczkowski, 112 Misc 2d 336, 90 AD2d 994; Matter of Imbergamo v Barclay, 77 Misc 2d 188; Meadows v Binkowski, 50 Misc 2d 19, 27 AD2d 706.) III. The trial court properly found that the zoning ordinance as applied to plaintiff’s proposed educational use was void and ineffective. (Matter of Diocese of Rochester v Planning Bd., 1 NY2d 508; Matter of Community Synagogue v Bates, 1 NY2d 445; Jewish Reconstructionist Synagogue v Incorporated Vil. of Roslyn Harbor, 38 NY2d 283; Matter of Hofstra Coll, v Wilmerding, 24 Misc 2d 248; Matter of Concordia Coll. Inst. v Miller, 301 NY 189.) IV. The instant action was properly brought. (Matter of Nassau Children’s Home v Board of Zoning Appeals, 77 AD2d 898.) V. The motion to intervene at the appellate level should not have been granted by the court below. (White v Globe Indem. Co., 14 AD2d 743; Matter of Unitarian Universalist Church v Shorten, 64 Misc 2d 851, 1027; Matter of Clearview Gardens First Corp. v Foley, 11 AD2d 1047, 9 NY2d 645; Matter of Wood v Fahey, 62 AD2d 86; Auerbach v Bennett, 64 AD2d 98; Horn Constr. Co. v Town of Hempstead, 33 Misc 2d 381.)

      Ralph W. Nash, City Attorney, for respondents-appellants in the first above-entitled action.
    I. The instant appeal may be dismissed because the amendment of the zoning ordinance has rendered the particular controversies moot. (Matter of Mascony Transp. & Ferry Serv. v Richmond, 71 AD2d 896, 49 NY2d 969; Matter of Alscot Investing Corp. v Incorporated Vil. of Rockville Centre, 99 AD2d 754, 64 NY2d 921; Matter of Stato v Squicciarini, 59 AD2d 718, 44 NY2d 816; Matter of Asman v Ambach, 64 NY2d 989; Matter of Storar, 52 NY2d 363.) II. This court should abrogate the favored status rule for educational and religious uses under municipal zoning ordinances. (Matter of Diocese of Rochester v Planning Bd., 1 NY2d 508; Matter of New York Inst. of Technology v Le Boutillier, 33 NY2d 125; Jewish Reconstructionist Synagogue v Incorporated Vil. of Roslyn Harbor, 38 NY2d 283; Matter of Holy Spirit Assn. v Rosenfeld, 91 AD2d 190; Village of Belle Terre v Boraas, 416 US 1; Lakewood, Ohio, Congregation of Jehovah’s Witnesses v City of Lakewood, 699 F2d 303, 464 US 815; Young v American Mini Theatres, 427 US 50; Schad v Mount Ephraim, 452 US 61; Larkin v Grendel’s Den, 459 US 116; Euclid v Ambler Co., 272 US 365.) III. The present Ithaca zoning laws are valid as regards plaintiffs proposed use under current decisional law of New York. (Matter of New York Inst. of Technology v Le Boutillier, 33 NY2d 125.)

      Nathaniel F. Knappen and Richard B. Thaler for intervenors-respondents in the first above-entitled action.
    I. Local zoning regulations which are designed to: provide for the public health, safety, and welfare; ensure the most desirable use of land; conserve the value of buildings; and enhance the value and appearance of land throughout the area, apply to educational institutions. (Euclid v Ambler Co., 272 US 365; Matter of New York Inst. of Technology v Le Boutillier, 33 NY2d 125.) II. Law in New York State requires a balancing test pitting the college’s desire to expand against the legitimate interest of community residents to protect and preserve their neighborhood. (Matter of New York Inst. of Technology v Le Boutillier, 33 NY2d 125; Matter of Clark v Board of Zoning Appeals, 301 NY 86; Matter of Solla v Simonds, 86 AD2d 612; Matter of Kenyon v Quinones, 43 AD2d 125; Ames v Palma, 52 AD2d 1077.) III. The question of whether the Board of Zoning Appeals must approve Cornell’s application for a special permit is not ripe for judicial review because the ruling of the court below did not finally determine the issue, and a new hearing has not been held under the revised ordinance. (Matter of Organization to Assure Servs. v Ambach, 56 NY2d 518; Pfeiffer v Byrne, 53 NY2d 1021; Spears v Berle, 48 NY2d 254.) IV. The intervention by the Cornell Heights residents was an intervention as of right, and the decision of the court below to grant the intervention was not an abuse of discretion. (Bay State Heating & Air Conditioning Co. v American Ins. Co., 78 AD2d 147; Matter of Carriage Hill v Lane, 20 AD2d 914; Myertin 30 Realty Dev. Corp. v Oehler, 82 AD2d 913; Matter of Unitarian Universalist Church v Shorten, 64 Misc 2d 851, 1027; Vantage Petroleum v Board of Assessment Review, 91 AD2d 1037, 61 NY2d 695; Patron v Patron, 40 NY2d 582.)

      Carl Stahl for appellant in the second above-entitled proceeding.
    I. Petitioner-appellant complied with the requirements of the zoning ordinance for the granting of a special exception use permit. (Matter of Aloe v Dassler, 278 App Div 975; Matter of Pleasant Val. Home Constr. v Van Wagner, 41 NY2d 1028; Matter of Family Consultation Serv. v Howard, 14 Misc 2d 194; Matter of Mason v Zoning Bd. of Appeals, 72 AD2d 889.) II. The determination of the Zoning Board was arbitrary, capricious and unsupported by substantial evidence as measured by the standards applicable to educational institutions. (Matter of Diocese of Rochester v Planning Bd., 1 NY2d 508; Matter of Pleasant Val. Home Constr. v Van Wagner, 41 NY2d 1028; Matter of Ouderkirk v Board of Appeals, 58 AD2d 667; Brandeis School v Village of Lawrence, 18 Misc 2d 550; Matter of Concordia Coll. Inst. v Miller, 301 NY 189; Matter of Westchester Reform Temple v Brown, 22 NY2d 488; Matter of Board of Coop. Educ. Servs. v Gaynor, 60 Misc 2d 316, 33 AD2d 701; Matter of Imbergamo v Barclay, 77 Misc 2d 188.) III. Petitioner-appellant has met the "need” requirement imposed by this court if any such requirement exists under the circumstances of this case. (Matter of North Shore Hebrew Academy v Wegman, 105 AD2d 702.)

      Jay B. Hashmall, Corporation Counsel (Dennis M. McMahon of counsel), for respondent in the second above-entitled proceeding.
    I. The applicant has not demonstrated any need for the requested relief and therefore is not entitled to a special exception use permit. (Matter of New York Inst. of Technology v Le Boutillier, 33 NY2d 125; Matter of Westchester Reform Temple v Brown, 22 NY2d 488; Matter of Community Synagogue v Bates, 1 NY2d 445.) II. Petitioner did not comply with the statutory requirements for a special exception use permit. .(Matter of Tandem Holding Corp. v Board of Zoning Appeals, 43 NY2d 801; Matter of North Shore Steak House v Board of Appeals, 30 NY2d 238; Matter of Mobil Oil Corp. v Oaks, 55 AD2d 809; Matter of Fiore v Zoning Bd. of Appeals, 21 NY2d 393; Matter of Point Lookout Civic Assn. v Zoning Bd. of Appeals, 94 AD2d 744; Matter of Berg v Michaelis, 21 AD2d 322, 16 NY2d 822.)

      Michael R. Edelman for intervenor-respondent in the second above-entitled proceeding.
    I. Special Term’s decision annulling the local Board’s denial of petitioner’s application to convert a single-family home in a residential area into a college dormitory was properly reversed by the court below. (Matter of Everheart v Johnston, 30 AD2d 608; McGowan v Cohalan, 41 NY2d 434; Matter of Cowan v Kern, 41 NY2d 591.) II. Petitioner failed to show that a demonstrable need existed for the proposed expansion. Notwithstanding the "special status” accorded to educational use applicants, a local zoning board may properly deny an application for a special exception use permit to expand the use where need is lacking. (Matter of New York Inst. of Technology v Le Boutillier, 33 NY2d 125; Matter of Diocese of Rochester v Planning Bd., 1 NY2d 508; Matter of Westchester Reform Temple v Brown, 22 NY2d 488; Matter of Concordia Coll. Inst. v Miller, 301 NY 189; Matter of Property Owners Assn. v Board of Zoning Appeals, 2 Misc 2d 309.) III. There was substantial evidence in the record upon which the local Zoning Board of Appeals could reasonably deny petitioner’s application. (Matter of Diocese of Rochester v Planning Bd., 1 NY2d 508; Matter of Lemir Realty Corp. v Larkin, 11 NY2d 20; Matter of Tandem Holding Corp. v Board of Zoning Appeals, 53 AD2d 697; Matter of

      Mobil Oil Corp. v Oaks, 55 AD2d 809; Matter of Klein v Siegel, 47 AD2d 924; Corter v Zoning Bd. of Appeals, 46 AD2d 184; Matter of Fiore v Zoning Bd. of Appeals, 21 NY2d 393; People ex rel. Hudson-Harlem Val. Tit. & Mtge. Co. v Walker, 282 NY 400; Matter of Von Kohorn v Morrell, 9 NY2d 27.)
   OPINION OF THE COURT

Titone, J.

In these cases involving local zoning regulations, we are called upon to determine the proper method of balancing the needs and rights of educational institutions that desire to expand or construct into purely residential neighborhoods against the concerns of the surrounding residents about the potential inconveniences. We hold that the presumption that educational uses are always in furtherance of the public health, safety and morals may be rebutted by a showing that the proposed use would actually have a net negative impact, and that a reasonably drawn special permit requirement may be used to balance the competing interests in this area. In all instances, the governing standard should be the protection of the public’s health, safety, welfare and morals. Since in these cases the schools involved were prevented from implementing their expansion plans for reasons not related to these considerations, the denial of their applications was improper.

I.

Plaintiff Cornell University sought to relocate its Modern Indonesia Project, an interdisciplinary academic program involving approximately 15 people on a full-time basis, to a large house it owned in the Cornell Heights area abutting the Cornell campus. Uses permitted in that area, zoned R-2a, included one- and two-family dwellings, churches, public parks or playgrounds, libraries, public or parochial schools and fire stations. Private schools were allowed by special permit of the Board. A "school” was defined as a "public, private or church-affiliated establishment academically below the college level, for the education of children and for adults in subjects or skills” (City of Ithaca Zoning Ordinance § 30.3 [78]).

Having assumed that its proposed use did not accord with uses allowed as of right or by special permit in the area, plaintiff applied for a variance, which the local Board of Zoning Appeals is empowered to issue where zoning restrictions impose "practical difficulties or unnecessary hardship” (City of Ithaca Zoning Ordinance § 30.58 [B] [3]). After a hearing, plaintiffs variance application was denied. The Board found that Cornell would suffer no hardship if the variance were denied and concluded that there would be potential unspecified damage to the character of the neighborhood. The Board further stressed that Cornell had shown no need to move its program to the particular site it had chosen.

Plaintiff then commenced a declaratory judgment action seeking a declaration that the ordinance was "unconstitutional, illegal and invalid and/or unconstitutionally, illegally, and invalidly applied to plaintiff”. Supreme Court, after trial, adjudged that the proposed use was an educational use that would not endanger the public’s health, safety or welfare, that the provisions of the zoning ordinance as applied to prevent plaintiff from using its property for the Modern Indonesia Project were void and ineffective and that defendants should be restrained from interfering with the proposed use of plaintiffs property.

The Appellate Division modified the judgment. That court first substituted for the trial court’s declaration concerning the invalidity of the ordinance a narrower declaration of its own that the ordinance was invalid to the extent that it required a variance for the proposed use and conditioned the granting of a variance on a showing of hardship. Such requirements, the court held, do not bear a substantial relation to public health, safety, morals or general welfare and are therefore improper. The court also held that the City of Ithaca Zoning Ordinance impermissibly distinguished between educational uses at the college level and those below. Having thus partially invalidated the ordinance, the court concluded that the proposed use fell within the category of uses available with a special permit. As a consequence, the court converted the remainder of the action into a proceeding under CPLR article 78 and remitted the matter to the Board to consider whether a special permit should be granted and whether any restrictions or conditions should be imposed.

After this decision and this court’s subsequent decision to grant both sides leave to appeal under CPLR 5602 (a) (2) (see, Matter of Lakeland Water Dist. v Onondaga County Water Auth., 24 NY2d 400), the zoning ordinance was amended to eliminate the need for a variance for uses such as that proposed by Cornell and to remove any distinctions between levels of educational use. Under the amended ordinance, all educational uses are permitted subject to obtaining a special permit. The section governing the issuance of special permits was also amended to add a requirement that the property owner show the need to use the particular site chosen for the educational use.

II.

Sarah Lawrence College sought to house 13 students and 1 staff member in a private house across the street from its main campus. The building is located in an S-200 residential district where a college use is allowed, but only by special permit. The ordinance delineating the factors to be considered in determining whether a special permit should be issued states, in part:

"C. Such permit may be granted subject to such additional conditions and safeguards as may be deemed by the Board to be advisable and appropriate.
"D. Such use shall be found by the Board to be in harmony with the general purposes and intent of this Chapter.
"E. Such use shall not affect adversely the character of the district, nor the conservation of property values, nor the health and safety of residents or workers on adjacent properties and in the general neighborhood.
"F. Such use shall be of such appropriate size, and so located and laid-out in relation to its access streets, that vehicular and pedestrian traffic to and from such use will not create undue congestion or hazards prejudicial to the character of the general neighborhood.
"G. Such use shall not conflict with the direction of building development in accordance with any Master Plan or portion thereof which has been adopted by the Planning Board.”

The Planning Board issued an unfavorable report finding, upon the college’s application, that the proposed use might depreciate property values, would increase traffic, would damage the character of the neighborhood and would lead to other similar applications along the same street. Furthermore, the Board found that the house was not contiguous to other college-related facilities and that sufficient evidence of need for an additional dormitory facility had not been adduced. Sarah Lawrence then submitted its application to the Zoning Board of Appeals for a special permit on the ground that the percentage of its students seeking on-campus housing had increased immeasurably and that the facilities available on the actual campus could no longer house all of them.

Following a hearing, the Zoning Board of Appeals denied the application, basing its decision on the college’s lack of need to expand and its conclusion that any hardship or practical difficulties borne by the college were self-included. The Board further deemed the college’s traffic survey unrepresentative of local conditions and stated that the college’s experts did not prove to its satisfaction that surrounding property values would not be adversely affected by the proposed student housing arrangements.

Sarah Lawrence thereafter commenced an article 78 proceeding, which resulted in the annulment of the Board’s determination and a direction that it issue the permit. The court concluded that the evidence at the hearing could not support a determination that the proposed use would pose a health or safety hazard or have an adverse impact on the neighborhood. The Appellate Division, however, reversed, finding that the Board’s determination was not arbitrary and capricious and that it was supported by substantial evidence.

III.

Initially, the unusual circumstances in the Cornell Univ. v Bagnardi case present the question whether plaintiff’s appeal should be dismissed on mootness grounds because of the recent amendments to the City of Ithaca’s zoning ordinance. Notably, the zoning ordinance, whose constitutionality plaintiff attacked, has been repealed, and it is the amended ordinance which will unquestionably govern plaintiff’s new application for a special permit. Therefore, that portion of plaintiff’s declaratory judgment action which seeks a declaration that the former City of Ithaca zoning ordinance was unconstitutional, or unconstitutional as applied, is clearly moot (see, Matter of Sibarco Stas, v Town Bd., 24 NY2d 900). Remaining in controversy, however, is the university’s attempt to enjoin defendants entirely from interfering with plaintiff’s proposed project, relief which was granted after trial and reversed by the Appellate Division. Because that aspect of the controversy remains live, the appeal should not be dismissed and the merits may be addressed.

IV.

The rules governing the relationship between the right of educational institutions to expand and the right of municipalities to regulate land use cannot be fully understood without reference to their background. Historically, schools and churches have enjoyed special treatment with respect to residential zoning ordinances and have been permitted to expand into neighborhoods where nonconforming uses would otherwise not have been allowed. Such favored status once seemed unobjectionable, since elementary schools and small churches serving the surrounding area were welcomed as benefits to the neighborhood. However, the advent of the automobile, as well as the growth and diversification of religious and educational institutions, brought a host of new problems. Sprawling universities brought increased traffic and other unexpected inconveniences to their neighbors, while the benefits these universities conferred were becoming less relevant to the residents of the immediately surrounding areas. Thus, neighbors who may have formerly welcomed the construction of a new school began to view its arrival with distrust and concern that it would unnecessarily bring people from other communities into the neighborhood to disrupt its peace and quiet.

With this change in attitude, courts were thrust into the role of protecting educational institutions from community hostility. Zoning ordinances that imposed limitations on the construction of public schools were held to conflict with the general law of the State (Union Free School Dist. v Village of Hewlett Bay Park, 198 Misc 932, affd 278 App Div 706; 2 Anderson, American Law of Zoning § 12.09, at 419-420 [2d ed]). The construction of parochial schools would not bear interference because of both their educational nature and the First Amendment protections afforded those schools (see, Matter of Diocese of Rochester v Planning Bd., 1 NY2d 508; 2 Rathkopf, Zoning and Planning § 20.02 [3], at 20-18). And, an ordinance which permitted public schools but excluded religious or private schools would not withstand challenge in New York (Matter of Diocese of Rochester v Planning Bd., supra, at p 526).

On a broader level, the courts held that schools, public, parochial and private, by their very nature, singularly serve the public’s welfare and morals (Matter of New York Inst. of Technology v Le Boutillier, 33 NY2d 125, 130; Matter of Concordia Coll. Inst. v Miller, 301 NY 189, 195; Matter of Summit School v Neugent, 82 AD2d 463). Colleges and universities were also recognized as serving the public’s welfare in the same important ways (see, e.g., Matter of Concordia Coll. Inst. v Miller, supra; Long Is. Univ. v Tappan, 202 Misc 956, affd 281 App Div 771, affd 305 NY 893; compare, Yanow v Seven Oaks Park, 11 NJ 341, 94 A2d 482). Because of the inherently beneficial nature of churches and schools to the public, we held that the total exclusion of such institutions from a residential district serves no end that is reasonably related to the morals, health, welfare and safety of the community (Matter of Diocese of Rochester v Planning Bd., supra, at p 522; 2 Anderson, American Law of Zoning § 12.10, at 422 [2d ed]; 2 Rathkopf, Zoning and Planning § 20.01 [4], at 20-9). Since a municipality’s power to regulate land use is derived solely from its right to use its police powers to promote these goals, such total exclusion is beyond the scope of the localities’ zoning authority (Matter of Westchester Reform Temple v Brown, 22 NY2d 488, 493; see also, Euclid v Ambler Co., 272 US 365, 395; 2 Rathkopf, Zoning and Planning § 20.01 [2] [a]; 1 Rohan, Zoning and Land Use Controls § 3.05 [2], at 3-219).

These general rules, however, were interpreted by some courts to demand a full exemption from zoning rules for all educational and church uses (see, e.g., Matter of Property Owners Assn. v Board of Zoning Appeals, 2 Misc 2d 309 [requiring a special permit be issued for an athletic stadium seating 4,000 spectators]; Zoning Regulations as Applied to Schools, Colleges, Universities and the Like, Ann., 36 ALR2d 653, 664; 2 Rathkopf, Zoning and Planning § 20.01 [2] [a]). The result has been to render municipalities powerless in the face of a religious or educational institution’s proposed expansion, no matter how offensive, overpowering or unsafe to a residential neighborhood the use might be. Such an interpretation, however, is mandated neither by the case law of our State nor common sense.

Although in Matter of Diocese of Rochester v Planning Bd. (1 NY2d 508, supra), we found an exclusion of a religious use to be arbitrary and unreasonable, we rejected any conclusive presumption of an entitlement to an exemption from zoning ordinances. In that regard, we explicitly rejected any argument that "appropriate restrictions may never be imposed with respect to a church and school and accessory uses” or that "under no circumstances may [such uses] ever be excluded from designated areas” (id., at p 526). Furthermore, while we stated in Matter of New York Inst. of Technology v Le Boutillier (33 NY2d 125, supra) that ordinarily the factors bearing on public health, safety and welfare such as traffic hazards, impairment of the use, enjoyment or value of properties in surrounding areas and deterioration of appearance of an area would not be weighty enough to foreclose an educational use in a residential area (id., at p 131), we did not intend to establish a rigid rule that educational or religious uses may never properly be found to conflict with these factors to such an extent as to endanger the public’s health, safety, welfare or morals.

The controlling consideration in reviewing the request of a school or church for permission to expand into a residential area must always be the over-all impact on the public’s welfare. Although the special treatment afforded schools and churches stems from their presumed beneficial effect on the community, there are many instances in which a particular educational or religious use may actually detract from the public’s health, safety, welfare or morals. In those instances, the institution may be properly denied. There is simply no conclusive presumption that any religious or educational use automatically outweighs its ill effects (Jewish Reconstructionist Synagogue v Incorporated Vil. of Roslyn Harbor, 38 NY2d 283, 292 [Breitel, Ch. J., concurring], cert denied 426 US 950). The presumed beneficial effect may be rebutted with evidence of a significant impact on traffic congestion, property values, municipal services and the like.

Thus, educational and religious uses which would unarguably be contrary to the public’s health, safety or welfare need not be permitted at all. A community that resides in close proximity to a college should not be obliged to stand helpless in the face of proposed uses that are dangerous to the surrounding area. Such uses, which are clearly not what the court had in mind when it stated that traffic and similar problems are outweighed by the benefits a church or school brings (Matter of Westchester Reform Temple v Brown, 22 NY2d 488, 496-497, supra), are unquestionably within the municipality’s police power to exclude altogether. "[E]yen religious [and educational] institutions [must] accommodate to factors directly relevant to public health, safety or welfare, inclusive of fire and similar emergency risks, and traffic conditions insofar as they involve public safety [citations omitted]” (Jewish Reconstructionist Synagogue v Incorporated Vil. of Roslyn Harbor, supra, at pp 291-292 [Breitel, Ch. J., concurring]).

Less extreme forms of expansion that are nonetheless obnoxious to the community’s residents, of course, require a more balanced approach than total exclusion. "[I]n Matter of Westchester Reform Temple v Brown (22 NY2d 488, 496) * * * the court recognized that 'considerations which may wholly justify the exclusion of commercial structures from residential areas * * * [may] * * * be considered for the purpose of minimizing, insofar as practicable, the impairment of surrounding areas or the danger of traffic hazards’ ” (Jewish Reconstructionist Synagogue v Incorporated Vil. of Roslyn Harbor, supra, at p 292 [Breitel, Ch. J., concurring]). A special permit may be required and reasonable conditions directly related to the public’s health, safety and welfare may be imposed to the same extent that they may be imposed on noneducational applicants (Jewish Reconstructionist Synagogue v Incorporated Vil. of Roslyn Harbor, supra, at pp 291-292 [Breitel, Ch. J., concurring]; Matter of Summit School v Neugent, 82 AD2d 463, 466, supra; see, Matter of Diocese of Rochester v Planning Bd., 1 NY2d 508, 526, supra). Thus, a zoning ordinance may properly provide that the granting of a special permit to churches or schools may be conditioned on the effect the use would have on traffic congestion, property values, municipal services, the general plan for development of the community, etc. (see generally, 2 Anderson, New York Zoning Law and Practice ch 24 [3d ed]). The requirement of a special permit application, which entails disclosure of site plans, parking facilities, and other features of the institution’s proposed use, is beneficial in that it affords zoning boards an opportunity to weigh the proposed use in relation to neighboring land uses and to cushion any adverse effects by the imposition of conditions designed to mitigate them (2 Rathkopf, Zoning and Planning § 20.01 [4], at 20-11). These conditions, if reasonably designed to counteract the deleterious effects on the public’s welfare of a proposed religious or educational use should be upheld by the courts, provided they do not, by their cost, magnitude or volume, operate indirectly to exclude such uses altogether (see, 2 Anderson, American Law of Zoning § 12.11, at 426 [2d ed]).

V.

In each of the cases before us these standards were not properly applied. The zoning boards involved in each case were, in fact, using an impermissible criterion in that they demanded that the schools make a showing of affirmative need for the proposed expansion. The boards’ use of this criterion may have been based, in part, on our decision in Matter of New York Inst. of Technology v Le Boutillier (33 NY2d 125, supra), in which we upheld a zoning appeal board’s denial of a school’s special permit based upon the lack of even a "colorable need” to expand (id., at p 131). A requirement of a showing of need to expand (Sarah Lawrence Coll. v Zoning Bd. of Appeals), or even more stringently, a need to expand to the particular location chosen (Cornell Univ. v Bagnardi; see, Matter of Community Synagogue v Bates, 1 NY2d 445), however, has no bearing whatsoever upon the public’s health, safety, welfare or morals. The imposition of such a requirement, or any other requirement unrelated to the public’s health, safety or welfare, is, therefore, beyond the scope of the municipality’s police power, and, thus, impermissible. To the extent that New York Inst. of Technology v Le Boutillier (supra) may be construed otherwise, it should not be followed. In addition, the board’s requirement in Sarah Lawrence Coll. v Zoning Bd. of Appeals, that the college show that no ill effects will result from the proposed use in order to receive a special permit, is improper because it fails to recognize that educational and religious uses ordinarily have inherent beneficial effects that must be weighed against their potential for harming the community.

In light of our holding that the institutions’ need to expand may not be considered and that the possible ill effects their proposed uses may have on the surrounding area may be taken into account, the applications of both Cornell and Sarah Lawrence must be reconsidered by the local zoning boards of appeal. Both schools should be given the opportunity to apply for special permits without having to show a special need, and the municipalities in which they are located should be given the opportunity to determine whether reasonable conditions should be imposed that would mitigate any deleterious effects on the surrounding community. Although the recently amended ordinance of the City of Ithaca is not technically before us, we note that, in accordance with this opinion, its requirement of a showing of need may not validly be applied to plaintiff Cornell’s application.

Accordingly, in Cornell Univ. v Bagnardi, the order of the Appellate Division should be modified, with costs to plaintiff, by striking, as moot, so much of that order as declared the City of Ithaca’s zoning ordinance partially invalid and remitting the matter to the Board of Zoning Appeals for consideratian of Cornell’s special use permit application in accordance with this opinion. In Matter of Sarah Lawrence Coll. v Zoning Bd. of Appeals, the order of the Appellate Division should be reversed, with costs, and the matter remitted to the Zoning Board of Appeals for consideration of Sarah Lawrence’s special use permit application, in accordance with this opinion.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye and Alexander concur; Judge Hancock, Jr., taking no part.

In Cornell Univ. v Barnardi: Order modified, with costs to plaintiff, and matter remitted to Supreme Court, Tompkins County, with directions to remand to the Board of Zoning Appeals of the City of Ithaca for consideration of the special use permit application in accordance with the opinion herein and, as so modified, affirmed.

In Matter of Sarah Lawrence Coll. v Zoning Bd. of Appeals: Order reversed, with costs, and matter remitted to Supreme Court, Westchester County, with directions to remand to the Zoning Board of Appeals of the City of Yonkers for consideration of the special use permit application in accordance with the opinion herein.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York, Appellant, v Karen Meierdiercks, Respondent. The People of the State of New York, Respondent, v James Boyd, Appellant. The People of the State of New York, Respondent, v Kasseem Harris, Appellant.
    Decided June 3, 1986

      APPEARANCES OF COUNSEL

      Carl A. Vergari, District Attorney (Richard E. Weill of counsel), for appellant in first above-entitled action.

      William I. Aronwald for respondent in first above-entitled action.

      Charles D. Halvorsen and Rose H. Sconiers for appellants in second and third above-entitled actions.

      Richard J. Arcara, District Attorney (J. Michael Marion of counsel), for respondent in second and third above-entitled actions.
   OPINION OF THE COURT

Memorandum.

The orders of the Appellate Division should be affirmed.

In the three appeals before us, defendants sought dismissal of indictments pursuant to CPL 30.30, alleging lengthy preindictment delays attributable in material part to adjournments of preliminary hearings. In the first case, People v Meierdiercks, the adjournment was ordered sua sponte by the local criminal court, after defense counsel had pointed out that the complaint did not accurately describe the purportedly stolen check. No motion was made by defendant, and the adjournment was neither requested nor consented to by her or her counsel. By contrast, in People v Boyd and People v Harris, defendants requested or consented to adjournments of preliminary hearings, thus expressly waiving any objection to those delays (CPL 30.30 [4] [b]). While defendants in all three cases contend that the periods of delay should be included because they did not prevent the People from seeking indictments, as we recognized in People v Worley (66 NY2d 523, 527) the controlling consideration is not whether defendants’ actions prevented the People from obtaining accusatory instruments sufficient for trial, but whether defendants waived the delay in the proceedings by requesting or consenting to the adjournments. Thus, in Meierdiercks, where there was no waiver by defendant, the sua sponte adjournment period was properly charged against the People and the indictment dismissed, and in People v Boyd and People v Harris, where there were express waivers, the delay periods were correctly excluded and defendants’ motions to dismiss properly denied.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

In each case: On review of submissions pursuant to section 500.4 of the rules of the Court of Appeals (22 NYCRR 500.4), order affirmed in a memorandum.


text:
    The People of the State of New York, Appellant, v Edward C. Kopciowski, Respondent.
    Decided June 3, 1986

      APPEARANCES OF COUNSEL

      Richard J. Arcara, District Attorney (Jo W. Faber of counsel), for appellant.

      Linda S. Reynolds and Rose H. Sconiers for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the indictment reinstated.

Defendant on June 2, 1983 was arraigned in Justice Court on misdemeanor charges of driving while under the influence of alcohol, speeding and failing to keep to the right side of the highway. Between June 2 and October 4, 1983, defendant secured several adjournments — to obtain counsel, for motions, and for trial preparation. On October 4, the People, having discovered that defendant had within the past 10 years been convicted of driving while intoxicated (which under Vehicle and Traffic Law § 1192 [5] makes a second statutory violation a felony) secured an adjournment to lay a felony complaint. Defendant was arraigned November 1 and indicted February 8, 1984, for driving while intoxicated, speeding and failing to keep to the right side of the highway. On February 17, the People announced their readiness for trial. Concluding that the People knew or should have known on June 3 of defendant’s earlier conviction, that the periods of adjournment directed to the misdemeanor trial were not excludable, and that the People therefore were not ready for trial within the time provided by CPL 30.30, the trial court dismissed the indictment. The Appellate Division affirmed the dismissal "as the People failed to show that any preindictment delay attributable to defendant impeded or prevented them from presenting the case to the Grand Jury.” (115 AD2d 266.)

Defendant’s requested adjournments in the period between June 2 and October 4 must be excluded in determining the People’s compliance with CPL 30.30 (CPL 30.30 [4] [b], [f]), thus bringing the period in issue here within statutory requirements. Where adjournments are allowed at defendant’s request, those periods of delay are expressly waived in calculating the People’s trial readiness, without the need for the People to trace their lack of readiness to defendant’s actions (People v Worley, 66 NY2d 523, 527). Here, the substance of the charges against defendant remained essentially unchanged. Neither the fact that defendant was ultimately charged with a felony nor the fact that the People knew or should have known earlier of his prior conviction, is cause for departure from the principles set forth in Worley.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander and Titone concur in memorandum; Judge Hancock, Jr., taking no part.

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


author: Kaye, J.

text:
    In the Matter of Campbell Sales Company, Respondent, v New York State Tax Commission, Appellant.
    Argued March 21, 1986;
    decided June 3, 1986

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Francis V. Dow, Robert Hermann and Peter H. Schiff of counsel), for appellant.

      George J. Noumair, Gerald D. Groden and Allen A. Hans for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be reversed, with costs, and the determination of the New York State Tax Commission reinstated.

We agree, for the reasons stated in the dissenting memorandum of Justice Paul A. Yesawich, Jr., at the Appellate Division, that substantial evidence supports the determination of the State Tax Commission to require petitioner to file its franchise tax return on a combined basis with its parent corporation and other subsidiaries of the parent corporation. In order to accurately reflect tax liability, corporate taxpayers subject to the New York State franchise tax may be required, in the discretion of the State Tax Commission, to file combined reports with other corporations, irrespective of whether such corporations are doing business in this State, where the parent owns or controls substantially all the capital stock of petitioner (see, 20 NYCRR 6-2.2 [a]), and the corporations are, in substance, part of a unitary business conducted by the entire group of corporations (see, Tax Law § 211 [4]; Matter of Wurlitzer Co. v State Tax Commn., 35 NY2d 100; Matter of Coleco Indus. v State Tax Commn., 92 AD2d 1008, 1009, affd 59 NY2d 994; 20 NYCRR 6-2.5 [a]). Nevertheless, as we made clear in Matter of Wurlitzer Co. v State Tax Commn. (supra, at p 105), "it is not a condition precedent that the income or capital of the taxpayer be improperly or inaccurately reflected” before the Commission may exercise that discretion and require combined reports because of intercompany transactions. In point of fact, many of the same arguments advanced by the dissent here were made by the dissenters in Wurlitzer and rejected by the majority. Our construction of the statute in Wurlitzer constitutes binding precedent on all members of the court (Foss v City of Rochester, 66 NY2d 872, 873; People v Hobson, 39 NY2d 479, 489-490).

In any event, the State Tax Commission here expressly found that "a proper reflection of * * * New York franchise tax liability is impossible without combination.” This conclusion is plainly rational (see, 20 NYCRR 6-2.3 [c]). Petitioner and its related corporations have substantial intercompany transactions, which demonstrate that they have a symbiotic relationship to each other and that petitioner is a vital link in the over-all enterprise. Moreover, since its inception, petitioner has exclusively solicited sales for Campbell’s Soup in 34 States.

Finally, it was incumbent upon petitioner to establish that the allocation formula utilized by the Commission does not properly reflect the business it transacts in New York (Matter of Eastman Kodak Co. v State Tax Commn., 33 AD2d 298, 303, affd 30 NY2d 558). That burden has not been met here.

Kaye, J.

(dissenting). For more than 30 years, Campbell Sales Company (Sales), a New York taxpayer (see, Tax Law § 208 [2]; § 209 [1]), had paid State franchise tax based on its income. Its parent, Campbell Soup (Soup), had not done business here and was not subject to the tax. Now, with no change in Sales’ business or its relations with its parent, Sales is compelled to file a combined report with Soup and its subsidiaries, because they are part of a unitary business, thereby for the first time subjecting the income of Soup and its subsidiaries to New York State franchise tax.

Pursuant to Tax Law § 211 (4) the State Tax Commission may require a New York taxpayer that owns or is owned by another corporation to report income on a combined basis, "provided * * * that no combined report * * * shall be required unless the tax commission deems such a report necessary, because of inter-company transactions * * * in order properly to reflect the tax liability under this article.” Because the Tax Commission’s position — now reinforced by the majority’s incorrect assumption that a taxpayer may be forced to file a combined report simply because it is "part of a unitary business conducted by the entire group of corporations” (at p 620) — reads out of the statute the requirement that a combined report must be necessary "in order properly to reflect the tax liability under this article”, I respectfully dissent.

The Tax Commission made no finding that, because of intercompany transactions, a combined report was necessary properly to reflect the tax liability of Sales. To the contrary, the Commission apparently believed that it was not required to make such a finding and that it could require affiliated corporations to file a combined report on the basis of two other factors: "(1) whether the corporations are in substance part of a unitary business conducted by the entire group, and (2) whether there are substantial intercorporate transactions among the corporations.” (See, Conclusions of Law of Tax Commission.) Thus, the issue is not — as the majority states— whether there was substantial evidence, or could have been a rational conclusion, that combined reporting was necessary to correctly portray Sales’ tax liability under article 9-A of the Tax Law. The agency did not reach its decision on this basis and our review is confined to the agency’s basis for its determination (see, Matter of Montauk Improvement v Proccacino, 41 NY2d 913; Securities & Exch. Commn. v Chenery Corp., 332 US 194, 196). The issue is whether a taxpayer can be compelled to file a combined report simply because it is part of a unitary business, or whether — as the statute says — the Commission first must find that, because of intercompany transactions, a combined report is necessary in order properly to reflect tax liability.

The Tax Commission’s reasoning permits the Commission to order affiliated corporations to file a combined report whenever they engage in activities that "are related to the activities of the other corporations in the group” (20 NYCRR 6-2.2 [b]). The second requirement, that there be "substantial inter-corporate transactions”, adds nothing of substance, for affiliated corporations engaging in a "unitary business” will, almost by definition, have "substantial intercorporate transactions” (see, 20 NYCRR 6-2.3 [c]). The Appellate Division majority was therefore correct in concluding that the Commission’s "reasoning would require a combined report in every instance in which a unitary relationship existed.” (Ill AD2d 995, 997.)

The "unitary business” concept essentially reflects a constitutional limitation on a State’s right to tax income arising out of interstate activities — even on a proportional basis — unless there is a minimal connection or nexus between the interstate activities and the taxing State. Thus, a State may tax a purported "unitary business” if at least a portion of it is conducted within the State, and if the business is in fact "unitary” in the constitutional sense. Chief among the factors relevant to the latter question, are requirements that there be some uniting bond of ownership or control and that between in-State and out-of-State activities "there be some sharing or exchange of value not capable of precise identification or measurement — beyond the mere flow of funds arising out of a passive investment or a distinct business operation — which renders formula apportionment a reasonable method of taxation” (Container Corp. v Franchise Tax Bd., 463 US 159, 166). Thus, the Commission’s approach may well be constitutional. But New York by statute has chosen not to adopt a unitary business test (cf. Container Corp. v Franchise Tax Bd., 463 US 159, 167-168, supra). Our Tax Law provides on its face that the Commission may not require a combined report unless necessary "in order properly to reflect the tax liability under this article”, and this statutory threshold has not been met— indeed it was not even recognized — in the case at bar.

Matter of Wurlitzer Co. v State Tax Commn. (35 NY2d 100) is markedly different. There, the court upheld the Commission’s determination to require the taxpayer, Wurlitzer, to file a combined report including the net income of its subsidiary, Wurlitzer Acceptance (WAC). But WAC was a shell. After receiving $2.5 million in capital from Wurlitzer in the form of accounts receivable, WAC went into the business of buying accounts receivable from Wurlitzer and collecting them. WAC had no employees. It paid Wurlitzer a "fee” and Wurlitzer employees performed the collection tasks, purportedly on behalf of WAC.

Here, by contrast, Sales acted as a sales representative or food broker for Soup’s products; Soup also retained brokers elsewhere to render the same service. While wholly owned by Soup, Sales operated autonomously, with its own employees— more than 1,000 in number — its own payroll, bank accounts, facilities, and a recognized business from which it derived income and paid expenses. It is uncontroverted that Soup paid Sales percentage commissions that were at least as high as— and likely higher than — commissions paid to other food brokers. Thus, Sales’ own taxable income was at least as great as that of an independent food broker would have been.

As the Appellate Division noted in Wurlitzer: "The key finding made by the commission, which is dispositive of the case, is that WAC had no separate corporate autonomy and was, in reality, merely the finance department of a unitary business, Wurlitzer” (42 AD2d 247, 250). Therefore, "the Commission concluded that the computation of the liability of Wurlitzer by including Wurlitzer and WAC in the combined report, properly reflects Wurlitzer’s tax liability for franchise tax purposes” (35 NY2d, at p 103), and we agreed that the "Commission could properly conclude that separate reports would not accurately reflect the taxable income or the taxable liability” (id., at p 105). The court in Wurlitzer, having pointedly set out the facts indicating that WAC had no autonomous existence and having reached its conclusion "[o]n this record” (id.), cannot be said to have held as a matter of binding precedent that the Tax Law no longer requires inaccuracy by virtue of the intercorporate transactions as a basis for imposing combined reporting (see, People v Bethea, 67 NY2d 364, 368, n). "[I]t is well settled that '[t]he language of any opinion must be confined to the facts before the court’ ” (People v Anderson, 66 NY2d 529, 535, quoting Dougherty v Equitable Life Assur. Socy., 266 NY 71, 88).

Because the Commission failed to apply the correct standard, I would affirm the judgment.

Chief Judge Wachtler and Judges Meyer, Simons, Alexander, Titone and Hancock, Jr., concur in memorandum; Judge Kaye dissents and votes to affirm in an opinion.

Judgment reversed, etc.

       The majority suggests that the Commission made a specific factual finding that in this case a combined report was necessary properly to reflect tax liability. Quoting from the Commission’s decision, the majority claims that the Commission "here expressly found that 'a proper reflection of * * * New York franchise tax liability is impossible without combination.’ ” The full quotation, however, reveals that the Commission was taking the position that a factual finding was unnecessary because unitary businesses must always be combined for tax purposes: "Where the businesses of corporations are so unified and interassociated (having due regard for their separate corporate existences), a proper reflection of their New York franchise tax liability is impossible without combination.” Our Tax Law requires more.


text:
    In the Matter of Veteran’s Administration Medical Center, Respondent, v Harvey U., Appellant.
    Decided June 3, 1986

      APPEARANCES OF COUNSEL

      James T. Donnelly and David M. Le Vine for appellant.

      Barry A. Gold for respondent.
   OPINION OF THE COURT

On the court’s own motion, in view of the submissions as to renewed request to withdraw the appeal herein, the issues presented are deemed moot, the order of the Appellate Division reversed, without costs, and the matter remitted to Supreme Court, Albany County, with directions to vacate the determination of that court and to reconsider the issue of appellant’s competence as the basis of the current submissions and such other evidence as may be presented to that court. This court’s stay is continued until determination of the issues herein by Supreme Court.

Renew request to withdraw the appeal dismissed as academic.

Concur: Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr.


text:
    In the Matter of Barry J. Stone, Sr., Appellant, v New York State Appellate Division Third Judicial Department Supreme Court Justices et al., Respondents.
    Submitted April 14, 1986;
    decided June 3, 1986
   Motion for assignment of counsel, etc., dismissed as academic.


text:
    V.R.W., Inc., Respondent, v Barbara Klein, Appellant, et al., Defendant.
    Submitted May 27, 1986;
    decided June 3, 1986
   Motion for leave to appeal and for a stay granted.


text:
    In the Matter of the Veteran’s Administration Medical Center, Respondent, v Harvey U., Appellant.
    Submitted June 2, 1986;
    decided June 3, 1986
   Motion for leave to appeal and for a preference granted, and case set down for oral argument at 9:00 a.m. on June 4, 1986.

On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved.

Stay ordered by the Appellate Division modified to the extent that petitioner may perform the subject amputations upon appellant’s consent and as modified continued (CPLR 5519 [e]).

Request for an order of withdrawal of the appeal and motion for leave to appeal based lipón a stipulation submitted by counsel denied, with leave to resubmit a new stipulation, upon compliance with 14 NYCRR 22.3.


text:
    Spring Valley Gardens Associates et al., Appellants, v Victor Marrero, as Commissioner of the State of New York Division of Housing and Community Renewal, et al., Defendants, and Village of Spring Valley, Respondent. (And Five Other Actions.)
    Argued April 30, 1986;
    decided June 5, 1986

      APPEARANCES OF COUNSEL

      Milton B. Shapiro and Daniel J. Shapiro for Spring Valley Gardens Associates and others, appellants.

      Seymour Dubbs for Joseph Feld and others, appellants.

      Lawrence Alexander, Sheldon D. Melnitsky and Martin A. Shlufman for State of New York Division of Housing and Community Renewal, respondent.

      Michael A. Stone and Sammy Diament for Village of Spring Valley, respondent.
   OPINION OF THE COURT

Memorandum.

The judgment appealed from and the Appellate Division order brought up for review should be affirmed for the reasons stated in the opinion of Justice David T. Gibbons at the Appellate Division.

We note, however, that although it should generally be presumed that the Legislature has investigated and found sufficient facts to support the legislation, that presumption cannot be applied in a case such as this where the implementing legislation requires the local legislative body to first make a particular factual finding. In this case that finding was adequately made.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, in a memorandum.


text:
    In the Matter of Darien Lake Fun Country, Inc., Appellant, v State Tax Commission, Respondent.
    Decided June 5, 1986
    APPEARANCES OF COUNSEL

      Samuel L. Shapiro for appellant.

      Robert Abrams, Attorney-General (Francis V. Dow, Robert Hermann and Peter H Schiff of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Petitioner operates an amusement park which includes carnival-like rides among other attractions. Petitioner sells two kinds of tickets: one permits use of the park and attractions other than the rides; the other allows the holder also to make unlimited use of the rides. Petitioner paid no sales tax on its acquisition of the rides which it contends were purchased for "resale” to users of them. It has paid tax on the admission tickets. At issue, then, is whether use of the rides by a ticket holder constitutes a resale such as to exempt the purchase or lease of the ride equipment by petitioner from tax.

Tax Law § 1105 distinguishes between the tax it imposes upon a retail sale (§ 1105 [a]) as defined in section 1101 (b) (4) and the tax it imposes upon an admission charge (§ 1105 [¶] [1] ) as defined in section 1101 (d) (2). Petitioner’s acquisition of the rides and other facilities would be nontaxable only if it was an acquisition for resale. But it has long been the rule that something more than temporary possession is required before there is, within the meaning of section 1101 (b) (4), a "license to use” taxable as a retail sale (Matter of Frissell v McGoldrick, 300 NY 370, 374; Howitt v Street & Smith Pub., 276 NY 345, 350-351).

That the definition of "admission charge” in section 1101 (d) (2) includes the "use of facilities” does not require a contrary conclusion, even if the fact situation in this case can be distinguished from that in Fairland Amusements v State Tax Commn. (66 NY2d 932) (a question we do not decide). To the extent that the tax on admissions may be a charge for the "use of facilities”, that use is by its very nature a limited, temporary use which, as the Frissell and Howitt cases hold, does not qualify as a "sale” and therefore cannot constitute a "resale” within the meaning of section 1101 (b) (4). To the extent that 20 NYCRR 526.7 (a) (4) by its reference to a transaction enumerated in Tax Law § 1105 (f) includes within the definition of "sale” an admission charge, it runs counter to the clear wording of the statute it was intended to implement and, therefore, is not controlling (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459; see, Fairland Amusements v State Tax Commn., supra).

We need not pass upon petitioner’s contention that under the Fairland holding its admission charge to its customers was not taxable and, therefore, it is entitled to offset against any amount due from it the taxes it paid on such charges. No such contention was made to the Commission. More importantly, however, petitioner cannot offset against its obligation as purchaser of the facilities any sums that, if due at all, are due its customers and to obtain refund of which petitioner must show that it "has repaid such tax to the customer” (Tax Law § 1139 [a]).

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

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


text:
    Patricia Clark, Respondent, v State of New York, Appellant.
    (Claim No. 62962.)
    Decided June 5, 1986

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Peter J. Dooley of counsel), for appellant.

      Daniel R. Santola for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed, without costs, upon the ground that no appeal lies as of right to review either the Appellate Division order of affirmance, or the prior nonfinal order of the Appellate Division pursuant to CPLR 5601 (d), because the dissents at the Appellate Division as to each of those orders are not on questions of law (NY Const, art VI, § 3 [a]; CPLR 5601 [a] [as amended by L 1985, ch 300]).


text:
    In the Matter of Eric W., a Person Alleged to be a Juvenile Delinquent, Appellant. In the Matter of Arthur L., a Person Alleged to be a Juvenile Delinquent, Appellant. In the Matter of Dwayne R., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Argued May 29, 1986;
    decided June 5, 1986

      APPEARANCES OF COUNSEL

      Burt Grayman, Carol Goldstein and Lenore Gittis for Eric W., appellant.

      Carol Goldstein and Lenore Gittis for Arthur L. and Dwayne R, appellants.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Trudi Mara Schleifer and Francis F. Caputo of counsel), for respondent in first above-entitled proceeding.

      Robert M. Morgenthau, District Attorney (Barbara A. Sheehan and Norman Barclay of counsel), for respondent in second above-entitled proceeding.

      Mario Merola, District Attorney (Kevin D. McLoone and Billie Manning of counsel), for respondent in third above-entitled proceeding.
   OPINION OF THE COURT

Memorandum.

The appeals in these three cases should be dismissed upon the ground that no substantial constitutional question is involved.

In each of these juvenile delinquency proceedings, the appellant, a juvenile under 16 years of age, was charged with having committed an act which, if done by an adult, would have constituted a crime (see, Family Ct Act art 3). In each case, Family Court held a brief Wade or Huntley hearing, well under an hour in length, followed immediately by a fact-finding hearing lasting no longer than two hours. In two of the cases, one witness testified at the pretrial hearing; in the third, three witnesses testified. All pretrial witnesses then testified at the fact-finding hearings. In each case the Judge and counsel were the same at the pretrial and the fact-finding hearings. In Eric W. and Arthur L. defense counsel informed the court at the beginning of the Wade hearings that they wanted copies of transcripts of the hearings, as well as adjournments of the fact-finding hearings to permit transcription, and unsuccessfully renewed those requests immediately prior to the fact-finding hearings. In Dwayne R. counsel first requested a transcript of the Huntley hearing and an adjournment to permit transcription at the beginning of the fact-finding hearing, which the court denied.

In each case appellant was adjudicated a juvenile delinquent, and on appeal from the Family Court order of disposition, the Appellate Division affirmed, without opinion. The appeals have been taken to this court on constitutional grounds pursuant to CPLR 5601 (b) (1). Each appellant urges that the trial court erred when it refused to grant an adjournment of the fact-finding hearing so that he could obtain a transcript of the pretrial hearing. Ordinarily, of course, the decision whether to grant an adjournment of trial is within the sound discretion of the trial court and not of constitutional dimension. Appellants argue, however, that a constitutional question is involved because they were entitled, as a matter of due process, to transcripts of pretrial proceedings, and that the failure to provide transcripts denied them fair trials (see, People ex rel. Cadogan v McMann, 24 NY2d 233; People v Ballott, 20 NY2d 600; People v Rosario, 9 NY2d 286, cert denied 368 US 866).

The appeals should be dismissed. In Dwayne R. the purported constitutional issue has not been preserved for review. As we made clear in People v Sanders (31 NY2d 463, 467), a defendant must "make his request for a transcript of the minutes of any pretrial hearing prior to its conclusion.” No such request was made in the case of Dwayne R.

Although we have stated that "an indigent defendant has a 'fundamental constitutional right’ to a free transcript of the minutes of a pretrial suppression hearing” (People v Sanders, 31 NY2d 463, 466, supra, quoting People v West, 29 NY2d 728, 729; see, People v Peacock, 31 NY2d 907; People v Zabrocky, 26 NY2d 530, 536; cf. People v Ballott, 20 NY2d 600, 604, supra), such cases stand for the proposition that, where a defendant with funds is entitled to procure a pretrial transcript, the equal protection clauses of the State and Federal Constitutions (NY Const, art I, § 11; US Const, 14th Amend, § 1) afford an indigent defendant a similar right. Equal protection is not implicated here, and appellant’s due process claims are without basis. On the facts presented, the denial of trial adjournments was not even an abuse of discretion. The complainants, appellants, witnesses, attorneys and Judges were present in court and able to proceed without delay, as indeed they did. Neither appellant claims that there was any prejudice in proceeding from the brief pretrial proceedings to the brief fact-finding hearings involving the same witnesses, counsel and Judge. Nor was any right of appellants under Family Court Act § 331.4 (1) (a) violated by a failure to make available transcripts which the presentment agency itself did not have. We therefore need not consider whether noncompliance with that statute could constitute a due process violation.

In each case: Appeal dismissed, without costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Joseph Wintje, Appellant.
    Decided June 5, 1986

      APPEARANCES OF COUNSEL

      Paul J. McAllister for appellant.

      Joseph M. Costello, District Attorney (Robert C. Lusardi of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The Trial Judge correctly charged the jury that defendant had no burden of proof with respect to his alibi and that the People must disprove the alibi beyond a reasonable doubt (People v Victor, 62 NY2d 374). In light of these unequivocal instructions, the additional charge that the People need not prove that all the alibi evidence presented is false or mistaken merely clarified the weight of the People’s burden. It did not shift the burden of proof onto defendant. The other purported trial errors raised by defendant either are unpreserved or harmless.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

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


text:
    In the Matter of Francis L. McKone et al., Respondents, v State Tax Commission, Appellant.
    Decided June 5, 1986

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Leslie B. Neustadt, Robert Hermann and Peter H. Schiff of counsel), for appellant.

      T. Kevin Fahey and Anne O. Troutman for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), judgment affirmed, with costs. We agree with the Appellate Division that there was no substantial evidence to support the Tax Commission’s determination.

Concur: Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr.


text:
    Marilyn Bikowitz et al., Appellants, v Nedco Pharmacy, Inc., et al., Defendants, and Eleonore Hinse, Respondent.
    Submitted April 14, 1986;
    decided June 5, 1986
   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 (Cohen and Karger, Powers of the New York Court of Appeals § 20, 81-84, at 84).


text:
    Janice Birnbaum et al., as Coexecutors of Bernard P. Birnbaum, Deceased, et al., Respondents, v State of New York, Appellant.
    (Claim No. 63695.)
    Submitted May 27, 1986;
    decided June 5, 1986
   Judge Hancock, Jr., taking no part.


text:
    In the Matter of James E. Boyle, Deceased. James P. Boyle, Also Known as Pat Boyle, Appellant; Estate of James E. Boyle, Respondent.
    Submitted April 28, 1986;
    decided June 5, 1986
   Motion, treated as a motion for reargument of appellant’s previous motion for leave to appeal which was dismissed for nonfinality on June 6, 1985 (65 NY2d 784), dismissed as untimely (22 NYCRR 500.11 [g] [3]), with $20 costs and necessary reproduction disbursements.


text:
    Kadish Pharmacy, Inc., et al., Appellants, v Blue Cross and Blue Shield of Greater New York, Inc., Respondent.
    Submitted April 7, 1986;
    decided June 5, 1986
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution inasmuch as the court below dismissed only two of plaintiffs’ four causes of action and not the entire complaint.


text:
    In the Matter of Donald Lazarus et al., Appellants, v Robert Steingut, as Chairman of the Workers’ Compensation Board, et al., Respondents.
    Submitted April 21, 1986;
    decided June 5, 1986
   Motion for leave to appeal denied.


text:
    Kristian A. Miller, an Infant, by His Guardian ad Litem, Susan S. Miller, Respondent, v Andrew F. Miller, Appellant.
    Submitted May 27, 1986;
    decided June 5, 1986

      APPEARANCES OF COUNSEL

      Donald D. Brown for appellant.

      Karen Nemiroff for respondent.
   OPINION OF THE COURT

Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no appeal lies as of right pursuant to CPLR 5601 (d) to review a prior nonfinal Appellate Division order of reversal, absent a dissent by at least two Justices or the direct involvement of a substantial constitutional question (CPLR 5601, as amended by L 1985, ch 300, § 1).


text:
    Milton Montalvo, Respondent, v Nel Taxi Corp., Appellant.
    Submitted April 21, 1986;
    decided June 5, 1986
   Motion, insofar as it seeks leave to appeal from that portion of the order of the Appellate Division which affirmed the judgment entered after determination of damages, denied. Motion, insofar as it seeks leave to appeal from the remainder of the Appellate Division order, dismissed upon the ground that that portion of the Appellate Division order does not finally determine the action within the meaning of the Constitution.


text:
    Rudolph G. Vassura et al., Respondents, v Bruce Taylor et al., Appellants.
    Submitted May 19, 1986;
    decided June 5, 1986
   Motion to dismiss the appeal granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that the stipulation for judgment absolute, under the facts of this case, is illusory and frustrates the very purpose of CPLR 5601 (c) (Goldberg v Elkom Co., 36 NY2d 914).


text:
    Donald Wilkinson, Appellant, v Francis J. Sukiennik et al., Defendants, and Robert Hoelscher, Respondent.
    Submitted May 12, 1986;
    decided June 5, 1986
   Motion to dismiss the appeal granted and the appeal dismissed, without costs, upon the ground that it does not lie as of right from the Appellate Division order of reversal, absent a dissent by at least two Justices or the direct involvement of a substantial constitutional question (CPLR 5601, as amended by L 1985, ch 300, § 1).


text:
    In the Matter of National Basketball Association, Respondent, v New York State Division of Human Rights, on Complaint of Manny Sokolofsky, Also Known as Manny Sokol, Appellant.
    Decided June 10, 1986

      APPEARANCES OF COUNSEL

      Robert M. Kerrigan for appellant.

      Howard L. Ganz for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs. We agree with the Appellate Division that under the circumstances of this case complainant did not establish prima facie "that he was physically fit to fully perform as a professional basketball referee”. Although a doctor’s report which does not give the basis of his opinion is admissible (CPLR 4515) and such a report in affirmation form (CPLR 2106) may constitute substantial evidence even though the doctor is not called by complainant (People ex rel. Vega v Smith, 66 NY2d 130, 139-140; Matter of Eagle v Paterson, 57 NY2d 831), the affirmation of Dr. Unger submitted by complainant was received by the Administrative Law Judge under the limitation that it "would not establish * * * any ultimate fact by itself’. In light of that ruling, petitioner cannot be faulted for not requesting that the doctor be called as a witness (CPLR 4515; State Administrative Procedure Act § 304; Matter of Eagle v Paterson, supra) so that he could be cross-examined.

Concur: Chief Judge Wachtler and Judges Meyer, Simons, Alexander, Titone and Hancock, Jr. Taking no part: Judge Kaye.


text:
    In the Matter of Nyack Board of Education, Appellant, v K. Capolino Design and Renovation, Ltd., Respondent.
    Decided June 10, 1986

      APPEARANCES OF COUNSEL

      Joseph J. Ceccarelli for appellant.

      David H. Fromm for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (114 AD2d 849), which we interpret as a determination on the law and in the exercise of discretion.

Concur: Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr.


text:
    In the Matter of Jeanne M. Johnson, Appellant, v Steven Katz, as Commissioner of New York State Office of Mental Health, et al., Respondents.
    Decided June 10, 1986

      APPEARANCES OF COUNSEL

      William F. Sheehan for appellant.

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

Memorandum.

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

Judicial review of the determination to discharge this probationary employee is limited to an inquiry as to whether the termination was made in bad faith. Evidence in the record supporting the conclusion that performance was unsatisfactory establishes that the discharge was made in good faith (Matter of King v Sapier, 47 AD2d 114, 116, affd on opn below 38 NY2d 960; see, Matter of York v McGuire, 99 AD2d 1023, affd 63 NY2d 760; Matter of Matsa v Wallach, 42 AD2d 1004, 1005, affd 34 NY2d 891). Special Term had before it affidavits of petitioner’s supervisors detailing "continuing problems concerning her relationships with other staff’ and a meeting with petitioner at which such problems were discussed; a performance appraisal report prepared two months before her termination showing a comparatively low rating regarding her ability to communicate with staff and others; and petitioner’s own lengthy correspondence explaining various problems she had with fellow employees. In the face of such evidence establishing good faith in her termination, no material issue of fact was raised by petitioner’s disputed assertion that the facility deputy director told her she was being discharged to protect other employees from scheduled layoffs. Thus, no hearing of the issue of bad faith was required, and the petition was properly dismissed.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

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


text:
    Robert W. Curley, as Administrator of the Estate of James H. Curley, Deceased, Appellant, v Arlene A. Giltrop, Respondent.
    Argued April 30, 1986;
    decided June 10, 1986

      APPEARANCES OF COUNSEL

      William L. Burke for appellant.

      Edward J. Tyler for respondent.
   OPINION OF THE COURT

Memorandum.

The order should be reversed, with costs, and the judgment of Supreme Court reinstated.

After a trial without a jury, Supreme Court awarded judgment in favor of the estate of James A. Curley against defendant, decedent’s former wife, for sums paid to her as beneficiary under his retirement program and two life insurance policies. The Appellate Division, by a divided court, reversed on the law and the facts and dismissed the complaint. Plaintiff, decedent’s administrator, appeals.

Decedent and defendant were divorced on June 7, 1983. Approximately six weeks later, on July 23, 1983, he took his own life. A few weeks prior to the divorce, on April 27, 1983, defendant wrote a letter to her attorney in the divorce action confirming her agreement to the terms of the divorce settlement in which she, in return for receiving the house, the proceeds of a bank account and other assets, agreed that she would "not make any claim on [decedent’s] retirement which is approximately $8,190.00 a year, or any insurances, or request maintenance from him” (emphasis added). On the hearing of the default proceedings in the divorce action, defendant testified:

"Q Are you requesting that the Court determine that these items of property to which you just testified be your separate property?
"A Yes.
"Q And, that in return for these items of separate property, you are willing to waive your right to maintenance as presently ordered from the defendant?
"A Yes.
"Q As well as any right in his retirement program or life insurance?
"A Yes. ” (Emphasis added.)

In the instant trial, the attorney who had represented defendant in the divorce was called as a witness. He testified that defendant had "clearly intended” to waive any interest in the decedent’s insurance and retirement benefits. In drafting the divorce decree for the court’s signature, the attorney included the stipulated provision in which defendant relinquished her interest in the decedent’s retirement program but omitted any reference to the life insurance policies. He testified, however, that this omission was due to oversight or inadvertence and the trial court so found. That court also found: "It is clear from the total context of [defendant’s] testimony at the divorce trial that she intended at that point in time to waive her right to James Curley’s retirement and insurance benefits, in exchange for sole ownership of most of the major marital assets. When she accepted the benefits of that proposed bargain, (i.e., ownership of the house, furniture, stocks, bonds, bank account and car) she also waived her right to maintenance, counsel fees, retirement benefits and insurance proceeds.”

Defendant attempted to establish at trial that because decedent had not changed the designated beneficiary on the policies or for his retirement program, he "must have intended to leave [defendant] as beneficiary, in spite of her waiver of that right.” The record contains extensive evidence concerning decedent’s deplorable mental and physical state during the period between the divorce and his death, his alcoholism, his involuntary commitment to a detoxification unit in June 1983, and the serious injuries he received in a fall from a cliff shortly before his suicide. In the light of this proof, the trial court found that decedent’s failure to make the beneficiary changes prior to his death "hardly evidences a conscious decision” that his former wife should be the beneficiary despite her express waiver of her rights. The court specifically rejected defendant’s request that it find to the contrary.

The foregoing findings of Supreme Court are amply supported by the record and more nearly comport with the weight of the evidence than the contrary findings of the Appellate Division.

We do not accept the position of the majority at the Appellate Division that defendant relinquished nothing more in the divorce settlement than her right to seek a court order requiring decedent to name her as irrevocable beneficiary of the insurance policies pursuant to Domestic Relations Law § 236 (B) (8) (a). Defendant’s agreement clearly went beyond that and, as found by the trial court, included whatever inchoate and contingent rights she then had to make a claim for sums that might become payable in the future under the retirement program and insurance policies (see, Mohawk Airlines v Peach, 61 AD2d 346, 349, lv denied 44 NY2d 838; O’Brien v Elder, 250 F2d 275, 278).

When the divorce was entered and defendant obtained a decree awarding her sole possession of the house, the bank account, the stocks and bonds and other assets, she received the consideration bargained for, and she became bound to fulfill her promise not to make claim for retirement program death benefits or life insurance proceeds (see, Hedeman v Fairbanks, Morse & Co., 286 NY 240, 251; Rubin v Dairymen’s League Co-op. Assn., 284 NY 32, 37; Hamer v Sidway, 124 NY 538; Restatement [Second] of Contracts §§ 71, 72; Restatement of Contracts § 76; 21 NY Jur 2d, Contracts, § 12). As specifically concluded by the trial court, the evidence does not support defendant’s contention that decedent, during his life, released her from her promise. Accordingly, it was proper to award a judgment in favor of the estate for the sums paid to defendant under the retirement program and the insurance policies.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur in memorandum.

Order reversed, etc.

       The parties have never questioned whether defendant’s promise and the subsequent decree constituted a valid "opting out agreement” under Domestic Relations Law § 236(B)(3). We have therefore, not considered that issue.


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    Alisa Kasachkoff, Appellant, v City of New York et al., Respondents.
    Decided June 10, 1986

      APPEARANCES OF COUNSEL

      John G. Lipsett for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Barry P. Schwartz of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

We agree with the Appellate Division that the first and second causes of action for defamation should have been dismissed as against the Health and Hospitals Corporation for plaintiffs failure to serve a proper notice of claim (see, Davidson v Bronx Mun. Hosp., 64 NY2d 59, 62), and as against the individual defendants for failure to raise a triable issue of fact with respect to malice or abuse of defendants’ qualified privilege (see, Loughry v Lincoln First Bank, 67 NY2d 369, 375-376; Dano v Royal Globe Ins. Co., 59 NY2d 827, 829). Likewise, the third cause of action for intentional infliction of emotional distress was properly dismissed against all defendants inasmuch as plaintiff failed to allege sufficiently extreme and outrageous conduct (see, Freihofer v Hearst Corp., 65 NY2d 135, 143).

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, in a memorandum.


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    The People of the State of New York, Appellant, v Terrence M. Evers, Respondent.
    Decided June 10, 1986

      APPEARANCES OF COUNSEL

      James B. Canfield, District Attorney (Richard L. Nabozny of counsel), for appellant.

      Matthew J. Clyne for respondent.
   OPINION OF THE COURT

Memorandum.

The order of County Court should be reversed and the case remitted to County Court for consideration of the facts (CPL 470.25 [2] [d]; 470.40 [2] [b]).

Vehicle and Traffic Law § 1194 (1), which requires chemical testing of a motor vehicle operator’s breath, blood, urine or saliva to be administered "at the direction of’ a police officer, does not preclude the police officer who determines that testing is warranted from administering the test as well. Where the test is given by an officer trained to administer it and no unusual circumstances have been shown, corroboration of the results is not required (see, Vehicle and Traffic Law § 1194 [9]).

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

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


text:
    Lindsay De Trabuc, Appellant, v Robert Klein et al., Respondents. Banque Francaise Du Commerce Exterieur, New York Branch, Respondent, v Arnaud De Trabuc et al., Respondents, and Lindsay De Trabuc, Intervenor-Respondent-Appellant.
    Submitted March 24, 1986;
    decided June 10, 1986
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed the order denying intervention and vacatur of a prior judgment, dismissed upon the ground that that portion of the Appellate Division order does not finally determine the action within the meaning of the Constitution (see, Cohen and Karger, Powers of the New York Court of Appeals § 46 [b], at 193; § 36 [c], at 144). Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed the order and judgment dismissing the petition brought pursuant to CPLR 5239, denied. Twenty dollars costs and necessary reproduction disbursements to respondents Klein and Banque Francaise.


text:
    In the Matter of Bobbie H. Holmes, Appellant, v John D. Simpson, Individually and as President of the New York City Transit Authority, Respondent.
    Submitted May 12, 1986;
    decided June 10, 1986
   Motion for an extension of time within which to move for reargument denied. Motion for reargument dismissed as untimely (22 NYCRR 500.11 [g] [3]), with $20 costs and necessary reproduction disbursements. [See, 64 NY2d 678.]


text:
    The John W. Cowper Company, Inc., Appellant-Respondent, v Buffalo Hotel Development Venture et al., Respondents, Spancrete Northeast, Inc., Respondent-Appellant, et al., Defendants. (And a Third-Party Action.)
    Decided June 10, 1986
   Appeal by Spancrete Northeast, Inc. dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution, and upon the further ground that no appeal lies as of right from the order of modification, absent a dissent by at least two Justices or the direct involvement of a substantial constitutional question (CPLR 5601, as amended by L 1985, ch 300, § 1).


text:
    Alice M. Kiernan, as Limited Administratrix of the Estate of Claude G. Packard, Deceased, Appellant, v Richard P. Hendrick et al., Respondents, and Linsey Lipscomb et al., Appellants.
    Submitted April 14, 1986;
    decided June 10, 1986
   Motion to dismiss appeal by defendants Lipscomb and Greyhound granted and appeal dismissed, without costs, upon the ground that the order of the Appellate Division insofar as it denied appellants summary judgment does not finally determine the action within the meaning of the Constitution and no appeal lies as of right from the order insofar as it unanimously granted summary judgment to the Hendrick defendants.

Motion to dismiss plaintiffs cross appeal granted and cross appeal dismissed, with costs and $20 costs of motion, upon the ground that the dissent at the Appellate Division is not in favor of plaintiff.


text:
    Leonard Smith, Inc., et al., Respondents, v Merrill Lynch, Pierce, Fenner and Smith, Defendant, and Marine Midland Bank, N. A., et al., Appellants.
    Submitted April 7, 1986;
    decided June 10, 1986
   Motion by appellant Chase Manhattan Bank, N. A., for leave to appeal denied.

Motion by appellant Marine Midland Bank, N. A., for leave to appeal dismissed upon the ground that the portion of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    James MacPherson et al., Respondents, v Kessef Tov Corp. et al., Appellants.
    Submitted May 5, 1986;
    decided June 10, 1986
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.

Cross motion to dismiss appeal taken as of right granted and appeal dismissed, with costs and $20 costs of motion, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Betty O. Muka, Appellant, v John L. Livingston, as Surrogate of St. Lawrence County, Respondent.
    Decided June 10, 1986
   Appeal transferred, without costs, by the Court of Appeals sua sponte, to the Appellate Division, Third Department. A direct appeal does not lie because no substantial question is presented as to the constitutional validity of the challenged statute (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).


text:
    Betty O. Muka, Appellant, v State of New York, Respondent.
    (Claim No. 70703.)
    Decided June 10, 1986
   Appeal transferred, without costs, by the Court of Appeals sua sponte, to the Appellate Division, Fourth Department. A direct appeal does not lie because no substantial question is presented as to the constitutional validity of the challenged statute (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).


text:
    Clement J. Pacyna, Appellant, v Lee G. Greenley et al., Respondents.
    Submitted May 5, 1986;
    decided June 10, 1986
   Motion for reconsideration of the Court of Appeals April 1, 1986 dismissal of appeal denied. Motion for leave to appeal to the Supreme Court of the United States dismissed as beyond the authority of the Court of Appeals. [See, 67 NY2d 917.]


text:
    In the Matter of Pagano Beer & Soda Corp., Appellant, v New York State Liquor Authority, Respondent.
    Submitted May 27, 1986;
    decided June 10, 1986
   Motion for leave to appeal and for a stay denied with $20 costs and necessary reproduction disbursements.


text:
    In the Matter of Cynthia R., a Child under the Age of Eighteen Years Alleged to be Neglected. Iris P., Appellant.
    Decided June 10, 1986
   Appeal transferred, without costs, by the Court of Appeals sua sponte, to the Appellate Division, First Department. A direct appeal does not lie where questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).


text:
    Ernie Renn et al., Appellants, v Orval Kimbark et al., Respondents.
    Submitted May 5, 1986;
    decided June 10, 1986
   Motion for leave to appeal and for a stay denied with $20 costs and necessary reproduction disbursements.


text:
    Celia Roldan, Respondent, v Dudley E. Thorpe, Appellant.
    Submitted April 21, 1986;
    decided June 10, 1986
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals § 36 [b], at 143-144).


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    The People of the State of New York, Respondent, v Fernando Rodriguez, Appellant.
    Argued June 2, 1986;
    decided July 1, 1986

      APPEARANCES OF COUNSEL

      Abigail Everett and Philip L. Weinstein for appellant.

      Andrew J. Frisch and Barbara D. Underwood for respondent.
   OPINION OF THE COURT

Order reversed and indictment dismissed for reasons stated in the dissenting opinion of Justice Leon D. Lazer at the Appellate Division (113 AD2d 337, 343-348).

Concur: Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr.


text:
    The People of the State of New York, Respondent, v Cheryl A. Peacock, Appellant.
    Argued May 29, 1986;
    decided July 1, 1986

      APPEARANCES OF COUNSEL

      Robert H. Bailan for appellant.

      Charles A. Gardner, District Attorney (Jerome J. Richards of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the County Court, St. Lawrence County, should be reversed and the information dismissed.

Penal Law § 205.30 defines resisting arrest as intentionally preventing or attempting to prevent a police officer "from effecting an authorized arrest”. The People concede that the officer did not have any ground to believe that defendant was committing, had committed or was about to commit an offense. That being the case, defendant’s arrest was not "authorized,” nor did her striking his arm in reaction to the officer’s attempt to detain her constitute harassment.

There being no probable cause that authorized defendant’s arrest, she cannot be guilty of resisting arrest. Penal Law § 35.27, as its title indicates, is concerned with the defense of justification and does not amend Penal Law § 205.30 to make resistance to an unauthorized arrest an offense (People v Carneglia, 63 AD2d 734; People v Harewood, 63 AD2d 876; see, People v Stevenson, 31 NY2d 108). To the extent that People v Simms (36 AD2d 23) and People v Lattanzio (35 AD2d 313) may be read to indicate otherwise, they are not to be followed.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur in memorandum.

Order reversed, etc.


text:
    The People of the State of New York, Respondent, v Angel Torres, Appellant.
    Argued May 28, 1986;
    decided July 1, 1986

      APPEARANCES OF COUNSEL

      Harold L. Levy and Edward M. Rappaport for appellant.

      Robert M. Morgenthau, District Attorney (Vija Kemanis and Amyjane Rettew of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Following the seizure of methaqualone tablets, more than two pounds of cocaine, narcotics paraphernalia, and a gun and ammunition from a luxury apartment leased by defendant and his girlfriend, defendant was convicted by a jury of criminal possession of a controlled substance in the first and seventh degrees, criminal use of drug paraphernalia in the second degree and criminal possession of a weapon in the fourth degree. The Appellate Division affirmed, without opinion.

On this appeal defendant, who had left for Puerto Rico the day before the contraband was found, claims that the evidence was insufficient to establish that he possessed the items seized from the apartment. We conclude that the requisite standard of proof was satisfied in this circumstantial evidence case (see, People v Giuliano, 65 NY2d 766, 767-768). Among other things the proof showed that defendant, a habitual cocaine user, was a named tenant on the apartment lease in which the contraband was found; the doorman saw him 25-30 times in the month of the seizure; he had keys to the apartment; he left the apartment the morning of the seizure carrying a suitcase and leaving behind his safe, gun and other effects; when he arrived at a hotel in Puerto Rico he gave the apartment address as his home and called the doorman to ask if the marshal (who executed an eviction warrant) had "found anything.” Defendant urges, as he did below, that the drugs belonged to others using the apartment. However, circumstances such as those found here can provide a sufficient basis for a trier of fact to conclude that a defendant is guilty of constructive possession of contraband found within the apartment, though a defendant may be absent from the apartment under his or her dominion and control, or others have use of it (People v Robertson, 48 NY2d 993; People v Diaz, 34 NY2d 689). Moreover, possession, even if joint, is still possession (People v Tirado, 38 NY2d 955). The evidence linking defendant to the apartment and to the contraband sufficiently supported the verdict.

Defendant’s contention that the initial and supplemental jury instructions regarding constructive possession were erroneous — to the extent the alleged errors are preserved for our review — are without basis. While defendant urges that the constructive possession charge contained in 1 CJI (NY) 9.70 p 539 should have been given instead of the court’s instructions here, he points to no material departure which was the subject of an objection at trial. Defendant’s remaining contentions, to the extent preserved for review, are without merit.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

Order affirmed in a memorandum.


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    The People of the State of New York, Respondent, v Roberto Henriquez, Appellant.
    Argued May 30, 1986;
    decided July 1, 1986

      APPEARANCES OF COUNSEL

      Charles L. Finke and Philip L. Weinstein for appellant.

      Robert M. Morgenthau, District Attorney (John G. Martin and Amy jane Rettew of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Term should be reversed and the matter remitted for consideration of the facts and the exercise of discretion (CPL 470.40 [2] [b]). Inasmuch as the order of the Appellate Term did not include a statement of whether the facts underlying the Criminal Court’s judgment were considered and determined to be established, we presume that the court did not consider or make any determination with respect to the facts (CPL 470.25 [2] [d]).

It was error for the Appellate Term to treat this matter as a calendar control dismissal within the prohibition of People v Douglass (60 NY2d 194) as a matter of law. On the People’s appeal to it, the Appellate Term should have looked at all of the attendant circumstances in determining whether the Trial Judge improvidently exercised his discretion and whether it should substitute its discretion for that of Criminal Court (People v Rickert, 58 NY2d 122).

While in reviewing the record the conclusion could be reached that the Trial Judge impermissibly dismissed the information for failure to prosecute or as a method of calendar control (People v Douglass, 60 NY2d 194, supra), it is equally apparent that facts supporting the sua sponte dismissal in the interest of justice were before the Trial Judge (CPL 170.40 [1]; People v Wingard, 33 NY2d 192). If the Trial Judge considered the factors listed in CPL 170.40 (1), then it would not be an abuse of discretion to affirm the dismissal, even though each of the factors was not enumerated on the record (People v Rickert, 58 NY2d 122, supra).

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

Order reversed and case remitted to the Appellate Term, First Department, for further proceedings in accordance with the memorandum herein.


text:
    John B., Appellant, v Village of Rockville Centre et al., Respondents.
    Argued June 2, 1986;
    decided July 1, 1986
    APPEARANCES OF COUNSEL

      Robert M. Schaufeld for appellant.

      James J. Seward for respondents.
   OPINION OF THE COURT

Memorandum.

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

Petitioner was a probationary police officer employed by the Police Department of the Village of Rockville Centre. His employment was terminated at the end of the probationary period, and he commenced this proceeding, claiming that the termination was violative of Mental Hygiene Law § 33.01 because the termination was allegedly predicated upon the fact that he had sought treatment for alcoholism. Special Term granted the petition after a hearing, but the Appellate Division unanimously reversed.

Mental Hygiene Law § 33.01 prohibits the termination of employment solely because an employee has sought and received treatment for alcoholism. It does not preclude consideration of any other illness which necessitated the hospitalization.

In this case, the Commissioner of Police was advised by a hospital record that petitioner’s "major problem appears to be his inability to deal with emotionally charged issues due to his obsessive compulsive natures”. This diagnosis shows that petitioner’s illness may affect his ability to properly discharge the duties of a police officer. Thus, the termination was not for a constitutionally or statutorily proscribed reason (cf. Matter of Miller v Ravitch, 60 NY2d 527).

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

Order affirmed, with costs, in a memorandum.