author: Wachtler, J. Jasen, J.

text:
    The People of the State of New York, Respondent-Appellant, v Bentley Thompson, Appellant-Respondent.
    Argued November 22, 1983;
    decided December 15, 1983

      POINTS OF COUNSEL

      Lynn W. L. Fahey and William E. Hellerstein for appellant-respondent.
    I. This court’s decision in Farrar should not be extended to permit the District Attorney to withdraw his consent to a guilty plea whenever a negotiated sentence is modified as unduly harsh on appeal, in view of the different considerations present at the appellate level, and the clear legislative policy, long tradition, and strong public policy considerations militating against such an extension of Farrar. (People v Farrar, 52 NY2d 302; People v Esajerre, 35 NY2d 463; People v Williams, 36 NY2d 829; People v Whiting, 89 AD2d 694; People v Junco, 43 AD2d 266, 35 NY2d 419, 421 US 951; People v Bulger, 84 AD2d 720; People v Zuckerman, 5 NY2d 401; People v Speiser, 277 NY 342; People v Potskowski, 298 NY 299.) II. It would be unfair and violative of due process to apply any extension of Farrar to appellant. (People v Prato, 89 AD2d 860; Matter of Fernandez v Silbowitz, 59 AD2d 837; People v Damsky, 47 AD2d 822; Santobello v New York, 404 US 257; People v Serrano, 15 NY2d 304; Raley v Ohio, 360 US 423; Cox v Louisiana, 379 US 559; People v Markowitz, 18 NY2d 953.)

      Elizabeth Holtzman, District Attorney {Barbara D. Underwood, Lucille Di Bello, Peter A. Weinstein and Anthea H. Bruffee of counsel), for respondent-appellant.
    I. People v Farrar requires that the People be given the opportunity to withdraw their consent to the plea in this case where the modification of defendant’s sentence by the court below materially changed the terms of the plea bargain. (People v Farrar, 52 NY2d 302; People v Esajerre, 35 NY2d 463; Matter of Gold v Booth, 79 AD2d 691, cert den sub nom. Sapio v Gold, 454 US 840; People v Zimmer, 51 NY2d 390; People v Di Falco, 44 NY2d 482; People v Eboli, 34 NY2d 281; People v Gottfried, 94 AD2d 632; Woosley v United States, 478 F2d 139; Dorszynski v United States, 418 US 424; People v Selikoff, 35 NY2d 227, 419 US 1122.) II. The court below abused its discretion as a matter of law when it modified defendant’s sentence in this case. (People v Coleman, 30 NY2d 582; People v Whiting, 89 AD2d 694; People v Roman, 84 AD2d 851; People v Harris, 57 AD2d 663; People v Junco, 43 AD2d 266, 35 NY2d 419, 421 US 951; People v Felix, 87 AD2d 529, 58 NY2d 156; People v Notey, 72 AD2d 279; People v Selikoff, 35 NY2d 227; People v West, 52 AD2d 968.) III. Defendant forfeited his right to appeal his sentence as harsh or excessive by knowingly and voluntarily entering into the plea agreement. (People v Thomas, 53 NY2d 338; People v Foster, 19 NY2d 150; People v Melton, 35 NY2d 327; People v Lynn, 28 NY2d 196; People v Esajerre, 35 NY2d 463; People v Williams, 36 NY2d 829, 423 US 873.)
   OPINION OF THE COURT

Wachtler, J.

The primary question on this appeal is whether the rule requiring the trial court to afford the prosecutor an opportunity to withdraw consent to a plea when the Trial Judge finds the agreed-upon sentence excessive (People v Farrar, 52 NY2d 302), also applies to the Appellate Division and limits its statutory power to reduce an excessive sentence in the interest of justice (CPL 470.15, subds 2, 6, par [b]; 470.20, subd 6). In this case the Appellate Division modified the sentence as excessive but, finding the Farrar holding applicable, remitted to the trial court to afford the People an opportunity to withdraw their consent to the plea. Both sides have appealed from the modification.

The defendant contends that the Farrar rule only applies to trial courts and that when the Appellate Division finds a sentence excessive the proper corrective action is to reduce the sentence to an appropriate one. The People contend that the Farrar rule also binds the Appellate Division, but that the court abused its discretion in finding the sentence excessive in this case and, in any event, the defendant forfeited his right to appeal the sentence by pleading guilty.

In July, 1978 the defendant, then 17 years old, shot and killed another youth on a Brooklyn street. The incident apparently occurred when the victim and several others approached the defendant and accused him of stealing a bicycle. The defendant was on a moped and the others were riding in a car. According to the victim’s friends the defendant fired without provocation. The defendant initially denied the shooting but later stated that he had acted in self-defense. The defendant claimed that the victim had previously hit him with the car. This prompted the defendant to borrow a gun for protection, and use it on the day of the shooting when he believed the victim was about to pull a gun on him. The defendant had no prior record of criminal convictions.

The Grand Jury indicted the defendant for murder in the second degree and possession of a weapon in the first degree. He was brought to trial in November of 1979. However, after a jury had been selected the defendant and the prosecutor agreed that the defendant would plead guilty to first degree manslaughter in satisfaction of the indictment. In support of the application to change the plea the prosecutor stated: “[I]n view of the fact the defense is offering a plea of guilty to the crime of manslaughter in the first degree, which under the fact pattern a jury could find, and the term of imprisonment Your Honor will stipulate to, the People would therefore be willing to take a plea to manslaughter in the first degree”. The court accepted the plea and stated that he would sentence the defendant to the maximum term, 8V3 to 25 years’ imprisonment.

At the time of sentence the court noted that the defendant was eligible for youthful offender treatment, but denied him “youthful offender consideration”. The court also observed that there was nothing in the probation report which would “preclude the court from imposing the sentence that was agreed upon at the time he pleaded guilty”. After pronouncing sentence the court directed the clerk to advise the defendant of his right to appeal.

The defendant appealed claiming that the imposition of the maximum permissible sentence was unduly harsh under the circumstances. He noted that this was his first offense and although it was a serious one, asked the court to consider “as a mitigating factor the likelihood that the deceased was not blameless but rather provoked the incident”. The defendant also submitted records showing successful completion of educational and trade courses in prison, which he claimed indicated his attitude toward rehabilitation and ability to find productive employment if released from prison. He stated: “Despite the seriousness of the crime, appellant’s act was an aberration from a life pattern of non-violent, law-abiding behavior and stable family life” and asked the court to exercise mercy and reduce his sentence in the interests of justice.

The People opposed the application on the ground that the sentence imposed was a proper exercise of the trial court’s discretion.

The Appellate Division modified, as a matter of discretion in the interests of justice, by reducing the sentence to a term of 3Vs to 10 years. The court stated: “Under the facts presented, the sentence was excessive to the extent indicated” (88 AD2d 939, 940).

The People then moved to resettle the Appellate Division order so as to afford them the opportunity to withdraw their consent to the guilty plea and proceed to trial on the indictment. The prosecutor urged that this was required by our decision in People v Farrar (52 NY2d 302, supra). The Appellate Division agreed and amended its decision and order by remitting the case to the trial court to offer the People the option of accepting the reduced sentence or withdrawing their consent to the plea, thus restoring the case for trial. As indicated, the defendant and the People have cross-appealed from the modification.

In the Farrar case we held that if the trial court concludes after accepting a plea that a lesser sentence than that agreed to by the parties is warranted, it should afford the People the opportunity to withdraw consent to the plea, absent exceptional circumstances. The decision was based on the legislative policy expressed in CPL 220.10 (subds 3, 4), which requires the consent of the court and the prosecution before the defendant is permitted to enter a plea to less than the entire indictment or to a lesser included offense. The opinion also stresses the fact that the ultimate decision with respect to the appropriate sentence in a particular case, even a “negotiated sentence” presumably acceptable to the parties, rests with the judiciary and that the trial court cannot be compelled to impose a sentence it finds unwarranted simply because it was a condition of the plea.

In the case now before us those requirements were met by the trial court. As noted the court accepted the plea with the consent, indeed recommendation, of the prosecutor. Before pronouncing sentence the court made an independent study of the case and in fact imposed the sentence agreed to by the parties after concluding that nothing brought to his attention precluded him from doing so.

On its facts the Farrar decision only dealt with the powers of the trial court with respect to pleas involving “negotiated sentences”. The statute upon which the decision was based, and the legislative policy expressed in that statute applies only to prosecutions of indictments at the trial court level (see CPL tit J). The powers and responsibilities of the Appellate Divisions with respect to sentencing are governed by other statutes which were not at issue in Farrar. A review of those statutes shows that the Legislature has adopted procedures at the intermediate appellate level, conferring different authority to reduce sentences on the Appellate Divisions than has been granted to the individual Trial Judges.

The Legislature has expressly authorized the Appellate Divisions to review sentences on appeals from convictions (CPL 450.10, subd 2). The Appellate Division’s scope of review with respect to sentences is broadly defined. It may reverse or modify the sentence, not only in those instances where the sentence was “unauthorized, illegally imposed or otherwise invalid as a matter of law” (CPL 470.15, subd 4, par [c]) but also where the court concludes that the “sentence, though legal, was unduly harsh or severe” (CPL 470.15, subd 6, par [b]). This latter inquiry is addressed to the Appellate Division’s discretion and power to act in the interests of justice. It is not confined to correcting errors of law (CPL 470.15, subd 6, par [b]).

The Legislature has also prescribed the corrective action the Appellate Division must take if it decides that a sentence legally imposed is excessive under the circumstances of a particular case. CPL 470.20 (subd 6) states: “Upon modifying a judgment or reversing a sentence as a matter of discretion in the interests of justice upon the ground that the sentence is unduly harsh or severe, the court must itself impose some legally authorized lesser sentence”.

Thus the Appellate Division was not bound, as it assumed, to afford the People the option of withdrawing their consent to the plea once it concluded in the exercise of its discretion that the sentence imposed was excessive. Its first order, simply reducing the sentence to a lesser term, was in accord with the relevant statute. It was also consistent with the well-established practice.

The power of the Appellate Division to reduce a sentence, which it finds unduly harsh or severe, in the interest of justice and impose a lesser one has long been recognized in this State. It was originally exercised as an inherent power (see, e.g., People v Miles, 173 App Div 179,183-184) and was later codified in section 543 of the Code of Criminal Procedure. When the Legislature adopted the current CPL in 1971 it again expressly authorized the practice, without substantive change (CPL 470.15, subd 6, par [b]; 470.20, subd 6).

The defendant did not, as the People urge, lose his right to seek appellate review of his sentence by pleading guilty. The statutes governing this type of appeal draw no distinction between sentences based on verdicts of guilty and those resulting from guilty pleas. In either circumstance the defendant has a statutory right to appeal to the Appellate Division’s discretionary power to reduce his sentence if the interests of justice warrant it. The defendant did not expressly waive this right to appellate review at the time he pleaded guilty (cf. People v Williams, 36 NY2d 829). Neither did the defendant automatically forfeit the right by entering the plea of guilty (cf. People v Thomas, 53 NY2d 338). As we noted in People v Coleman (30 NY2d 582, 583): “Although the scope of appeal in a criminal case after a guilty plea is narrowly limited, one of the questions reviewable by an Appellate Division is the severity of sentence”.

If the exercise of this power frustrates the People’s expectations in cases involving negotiated sentences it is not the result of any change in the law. The statute is clear on its face and has been uniformly, albeit rarely, employed in the past. It presents a risk, although a minimal one, which presumably is taken into account or discounted at the time of the plea negotiations.

The People’s final contention that the Appellate Division abused its discretion when it found the sentence imposed in this case to be excessive, poses no question of law for this court to consider. It is well settled that any question as to whether an otherwise lawful sentence is harsh or severe in a particular case involves a type of discretion not reviewable by the Court of Appeals (People v Rytel, 284 NY 242, 246; People v Potskowski, 298 NY 299, 303).

In sum, our decision in this case, as in Farrar, is dictated by the applicable statutes. The Legislature has provided that the prosecutor’s consent to a plea is required at the trial court level which necessarily permits the prosecutor to impose lawful conditions which the trial court cannot disregard. The Legislature, however, has not seen fit to impose similar restrictions on the Appellate Division’s power to reduce a sentence in the interests of justice and impose a lesser one if a majority of the court concludes that the sentence imposed was unduly harsh under the circumstances.

There is no need to consider whether these procedures intrude on the “traditional power” of the District Attorneys to control the course of the prosecution as the People suggest, or have the practical effect of depriving the trial courts of their “traditional power” of determining the appropriate sentence as some critics have urged (see Committee on Criminal Advocacy of Assn of Bar of City of NY, Prosecutorial Displacement of Judicial Sentencing Power Under People v Farrar: A Call for Reconsideration and Remedial Action [1983]) or are necessary to eliminate some of the more notorious sentence disparities as the defendant suggests. These arguments serve to illustrate the fundamental disagreements resulting from the extensive use of guilty pleas, which at the present time account for all but a small percentage of the criminal convictions in this State. However, they are matters for the Legislature which is well aware of the turmoil generated by the existing sentencing procedures and has recently established a special committee of distinguished experts to provide new solutions to the long-standing problem of suiting the punishment to the offense and the offender (see L 1983, ch 711, establishing the Sentencing Guidelines Committee).

Accordingly, the order of the Appellate Division should be modified by reinstating the sentence imposed by that court in its order of June 7,1982 and deleting the provision remitting the case to the trial court, and otherwise affirmed.

Jasen, J.

(dissenting in part and concurring in part). The majority holds that CPL 470.20 (subd 6) prohibits the prosecution from being afforded an opportunity to withdraw its consent to a plea agreement after the Appellate Division has reduced the agreed-upon sentence as excessive, even though the prosecutor expressly conditioned his consent upon the imposition of the original sentence.

While I agree that the Appellate Division is empowered to reduce a plea as excessive, I do not believe that the neW plea arrangement which emerges from the Appellate Division’s modification can be enforced without the consent of the People. I, therefore, respectfully dissent.

It should be noted at the outset that this is not a case where the power of the Appellate Division to modify an unduly harsh or illegal sentence and impose a legally authorized lesser sentence is at issue. I agree completely with the majority that CPL 450.10 (subd 2), 470.15 (subd 4, par [c]), 470.15 (subd 6, par [b]) and 470.20 (subd 6) specifically grant the Appellate Division those powers. But that is all they do. Contrary to the majority’s position, those provisions were not intended to nor do they speak to the question of what effect the exercise of the Appellate Division’s power to modify a sentence has on a plea agreement, the prosecutor’s consent to which was expressly conditioned on the defendant receiving the original agreed-upon sentence.

Inasmuch as the issue presented on this appeal only relates to the effect of a modified sentence on defendant’s plea and the prosecutor’s conditional consent thereto, the majority’s reliance on CPL article 470 (entitled Appeals-Determination Thereof) is entirely misplaced.

It is CPL article 220 (tit J) which sets forth the law to be applied to this case. CPL 220.10 (subds 3, 4) state specifically that the consent of the court and the People is required before a defendant may enter a plea to a lesser offense. It logically and necessarily follows, therefore, that where, as here, the People’s consent to a plea is conditioned, in the first instance, upon the defendant receiving a specific sentence, the subsequent invalidation of that condition also effectively invalidates the People’s consent, nunc pro tunc. That being so, the statutory requirement that the People consent to all plea agreements before they can be enforced has not been satisfied (People v Ciccone, 91 AD2d 688, 689-690) and the People must be given an opportunity to formally withdraw their consent to what has become, in effect, a new agreement (People v Farrar, 52 NY2d 302, 307). If no prejudice would result to the defendant by withdrawal of the People’s consent, the People’s application must be granted, the plea must be vacated and the parties must be returned to status quo ante. (Id., at p 308.)

In addition to disregarding the obvious intent of the Legislature in enacting CPL 220.10 (subds 3, 4), the majority also ignores the rationale of this court’s recent decision in People v Farrar (52 NY2d 302, supra). While it is true that in Farrar we only addressed the question of what the trial court, as opposed to an appellate court, must do when it alters a condition of a plea, the rationale of that case is clearly applicable here. Indeed, the majority gives no reason, based on policy or otherwise, why the rationale of Farrar should not control this case.

In Farrar, this court held that: “Where the record shows that the prosecutor’s consent to a plea is premised on a negotiated sentence and a lesser sentence is later deemed more appropriate, the People should be given the opportunity to withdraw their consent. However justified the court’s unwillingness to impose the negotiated sentence, fairness dictates that this avenue be left open.” (People v Farrar, supra, at pp 307-308.) This holding was based on three distinct lines of reasoning which are clearly applicable to this appeal, each of which will be discussed seriatim.

First, it was reasoned that “a joint consent procedure prevents abuse”. (Id., at p 307.) This concern reflects the fear that a sentencing court will use its power to impose sentence unwisely and thereby change the terms of a plea arrangement despite the prosecutor’s protest. This fear is at least as justified where, as here, it is the Appellate Division which modifies the sentence. Indeed, because a reviewing court lacks some of the first-hand knowledge of the case, has only a sterile record to review and has not had the opportunity to observe the defendant, the sentencing court is given great deference in its decision. (Labbe, Appellate Review of Sentences: Penology on the Judicial Doorstep, 68 J Grim L & Criminology 122; People v Junco, 43 AD2d 266, affd 35 NY2d 419, cert den 421 US 951; People v Notey, 72 AD2d 279, 282.) The limited nature of appellate review of sentencing decisions is a recognition of this principle. (People v Suitte, 90 AD2d 80, 85.) It is clear, therefore, that the concern expressed in Farrar, that the court which modifies a sentence may do so unwisely, is as evident, if not more so, where an appellate court, which is in a worse position than the sentencing court to evaluate the circumstances of the defendant, the threat he poses to society and the chance of his being rehabilitated, is the one which alters the sentence.

The second line of reasoning upon which the Farrar decision is based is a recognition of “the prosecutor’s independent role and interest concerning the course the prosecution will take.” (People v Farrar, 52 NY2d 302, 307, supra.) There can be no serious dispute that this important concern is equally affected whether it is the sentencing court or an appellate court which unilaterally modifies the original sentence, upon which the prosecutor’s consent to the plea was conditioned.

The third prong of the majority’s reasoning in Farrar was centered on insuring fairness to the prosecutor. The result reached by the majority goes beyond what fairness requires. The parties entered into an agreement whereby defendant, who was indicted for murder in the second degree and criminal possession of a weapon in the second degree, was allowed to plead guilty to manslaughter in the first degree. A sentence of 8V3 to 25 years’ incarceration was agreed upon by defendant and the prosecutor. The court, believing the sentence to be fair, accepted the plea. Defendant then appealed the sentence as excessive, as he had a clear right to do, and the Appellate Division reduced it. Just as the possibility existed in Farrar, the People here were deprived of a material condition of the plea agreement by the court’s action. If fairness required that the prosecutor be given an opportunity to withdraw his consent in Farrar, as it did, the same result should follow here where the identical fact situation exists except that the People in the case before us were deprived of a material condition of the plea bargain by an appellate court, rather than the sentencing court. In either case, it is grossly unfair to allow the defendant to strike a favorable bargain and then allow him to challenge those portions which are not to his benefit, and which result in the People being deprived of a material benefit of the agreement — the originally agreed-upon sentence — while precluding the People from formally withdrawing their consent to the new arrangement. The distinction between which court modified the agreement is irrelevant because it in no way alters that prong of the rationale of Farrar which holds that fairness dictates that the People be given an opportunity to withdraw their consent.

The language used by this court in Farrar in pointing out the error of the Appellate Division in that case is equally applicable to the case before us. The majority “fail[s] to recognize the prosecutor’s right to withdraw consent to the plea in the event that the sentence to be imposed is less than originally negotiated by the parties. The legislative policy of this State is to require the consent of the court and prosecutor to a plea to a lesser included offense or to less than the entire indictment (see CPL 220.10, subds 3, 4).” (People v Farrar, supra, at p 307.)

I would hold, as the Appellate Division did, that the case should be remitted to Criminal Term for further proceedings, at which the People should be afforded the opportunity to withdraw their consent to the plea agreement. Should the People opt for a withdrawal, the defendant’s guilty plea should be vacated, and a new plea entered. Should the People decline to withdraw their consent to the plea arrangement as modified by the Appellate Division, then Criminal Term shall modify the sentence accordingly.

Finally, I concur in the majority’s holding that the Appellate Division’s exercise of discretion in reducing the sentence involves a type of discretion not reviewable by this court.

Accordingly, I would affirm the order of the Appellate Division.

Chief Judge Cooke and Judges Jones, Meyer, Simons and Kaye concur with Judge Wachtler; Judge Jasen dissents in part and concurs in part and votes to affirm in a separate opinion.

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

       The defendant has appealed with respect to the corrective action pursuant to CPL 450.90 (subd 2, par [b]). The People have cross-appealed pursuant to CPL 450.90 (subd 2, par [a]). The Appellate Division’s modification was based on the determination of law that it had power to review the sentence resulting from the guilty plea.

      . Perhaps the best proof of the correctness of this statement is exemplified by the fact that the Appellate Division below decided, contrary to the decision of the sentencing Judge and the belief of both the defendant and the prosecutor, that a minimum term of 8Vs years’ incarceration was excessive where the defendant intentionally shot a 17-year-old boy in the head and killed him. The Appellate Division believed a term of 3Vs to 10 years was more appropriate.

      . It is important to note, as the court in Farrar did in a footnote at page 308, that the same considerations would inure to the benefit of the defendant if the court determined that the sentence agreed upon was inappropriate because it was not severe enough.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Kenneth Miller, Appellant, v Richard Ravitch, as Chairman of the New York City Transit Authority, et al., Respondents.
    Argued October 17, 1983;
    decided December 15, 1983

      POINTS OF COUNSEL

      Joel Field for appellant.
    I. The construction by the courts below that “disability” as defined by subdivision 21 of section 292 of the Executive Law, as amended to mean that a person physically unable to perform full duty in a position, was incapable of performing the functions of the position in a reasonable manner was error. (Matter of Westinghouse Elec. Corp. v State Div. of Human Rights, 49 NY2d 234; City of New York v Cole, 48 NY2d 707.) II. Respondents’ requirement that appellant must be physically able to perform the full duties of an assistant station supervisor to be promoted has an adverse impact upon a protected class of persons — the physically disabled — respondents therefore have the burden of showing through a factual determination that it bears a rational relationship to employee job performance and does not create a barrier to employment operating to discriminate on the basis of an impermissible classification — physical disability. (State Div. of Human Rights [Ghee] v County of Monroe, 48 NY2d 727; Matter of Westinghouse Elec. Corp. v State Div. of Human Rights, 49 NY2d 234; Matter of Sontag v Bronstein, 33 NY2d 197; City of Schenectady v State Div. of Human Rights, 37 NY2d 421.) III. The fact that appellant may have been probationary and not permanent as an assistant station supervisor does not deprive him of the protection of the Human Rights Law. (Matter of New York City Bd. of Educ. v Batista, 54 NY2d 379; Matter of Going v Kennedy, 5 AD2d 173, 5 NY2d 900; Eastern Paralyzed Veterans Assn. v Metropolitan Transp. Auth., 79 AD2d 516.)

      Richard Dreyfus and Richard K. Bernard for respondents.
    L. Appellant has failed to state a cause of action and the dismissal of the petition by the courts below was proper. (Matter of Stanziale v Executive Dept., Off. of Gen. Servs., 55 NY2d 735; Matter of Holbrook v State Ins. Fund, 54 NY2d 892; James v Board of Educ., 37 NY2d 891; Eastern Paralyzed Veterans Assn. v Metropolitan Transp. Auth., 79 AD2d 516; Jablon v City of New York, 177 Misc 838, 268 App Div 859, 1026; Matter of Susquehanna Val. School Dist. [Susquehanna Val. Teachers’ Assn.], 37 NY2d 614; Matter of Albano v Kirby, 36 NY2d 526; People ex rel. Kastor v Kearny, 164 NY 64; Matter of Sanches v Town of Brookhaven, 19 AD2d 864; Matter of Avalon v Allen, 22 Misc 2d 961, 12 AD2d 480; Matter of Going v Kennedy, 5 AD2d 173, 5 NY2d 900; Matter of Talamo v Murphy, 38 NY2d 637.) II. Respondents need not apply the same rules to probationary employees as they are required to apply to permanent employees pursuant to a collective bargaining agreement. (Matter of Going v Kennedy, 5 AD2d 173; Matter of Beneky v Waterfront Comm., 42 NY2d 920, 434 US 940.) III. If the motion to dismiss is denied, respondents must be given the opportunity to answer the petition.
   OPINION OF THE COURT

Wachtler, J.

In this article 78 proceeding petitioner contends that his employer terminated his probationary appointment to a supervisory position because of a physical disability, and thus discriminated against him in violation of this State’s Human Rights Law (Executive Law, § 296). The trial court dismissed the petition without a hearing on the ground that petitioner was unable to perform “full duties” and therefore did not come within the protection contemplated by the statute (Executive Law, § 292, subd 21). The Appellate Division affirmed and petitioner has appealed by leave of this court.

In 1971 petitioner was employed as a railroad clerk by the New York City Transit Authority (Authority) after passing a competitive examination. In 1975 he passed the examination for assistant station supervisor and was placed on the eligible list. On November 10, 1979 he was appointed to the supervisory position subject to the satisfactory completion of one year on probation.

On several occasions in 1980 petitioner was hospitalized for treatment of a heart condition. As a result of this condition he was absent from work from September 20 to October 20, 1980. On the latter date he was found physically fit to return to “full duty status” by the Authority’s cardiac consultant. However on October 27, 1980 that same doctor found petitioner “not qualified to do full duty in his [supervisory] title. He is to do no excessive stair climbing. He is able to work as a railroad clerk”. On November 6, 1980 petitioner’s probation was terminated and he was demoted to his former position of railroad clerk.

In January, 1981 petitioner commenced this article 78 proceeding claiming that the Authority discriminated against him in violation of section 296 of the Executive Law by demoting him because of his physical disability. He asked that he be reinstated to his supervisory position with back pay.

The Authority did not answer the petition but instead moved to dismiss for failure to state a cause of action. The employer claimed that petitioner had been demoted because of “unsatisfactory service during his probationary period”. The Authority also urged that since its cardiac consultant had found the petitioner unfit for full duty, it could not be said that it had discriminated against him because of a disability which would not interfere with the performance of his duties. The Authority alleged that petitioner’s “specific assignment” required him to climb stairs “on a regular basis”. In opposition to the motion the petitioner contended that the doctor’s October 27 finding that he was physically unable to perform the full duties of the title was “suspect” and, in any event, did not establish his inability to perform in a “reasonable manner” as required by the antidiscrimination statute (Executive Law, § 292). He also disputed the employer’s suggestion that extensive stair climbing was actually required of assistant station supervisors.

The trial court granted the motion to dismiss, without a hearing, concluding that: “Here, the medical finding that petitioner is not qualified to do full duty means that he is not capable of ‘performing in a reasonable manner’ the functions of Assistant Station Supervisor”. The Appellate Division affirmed, without opinion.

Although the employment of a probationary appointee may be terminated without a hearing and without stated reasons, the employer may not terminate the employment for reasons prohibited by law (Matter of Talamo v Murphy, 38 NY2d 637, 639). In this State the Human Rights Law prohibits an employer from discriminating against an employee or job applicant because of a disability (Executive Law, § 296).

Prior to 1979 a disability by statutory definition, was “limited to physical, mental or medical conditions which are unrelated to the ability to engage in the activities involved in the job or occupation which a person claiming protection of this article shall be seeking” (Executive Law, § 292, former subd 21). Under that statute job relatedness was the test. An employer who denied a job opportunity to an employee or applicant because of a physical of mental impairment could not be said to have discriminated if the condition was in any way related to the duties the person was required to perform in connection with the position sought (Matter of Westinghouse Elec. Corp. v State Div. of Human Rights, 49 NY2d 234; State Div. of Human Rights [Ghee] v County of Monroe, 48 NY2d 727; Matter of State Div. of Human Rights v Averill Park Cent. School Dist., 46 NY2d 950). It was not necessary for the employer to go further and demonstrate that the condition also precluded the person from performing the job in a reasonable manner (Matter of Westinghouse Elec. Corp. v State Div. of Human Rights, supra, p 237).

In 1979 the Legislature amended the statute more accurately to define disabilities as “physical, mental or medical conditions which do not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought” (L 1979, ch 594, now Executive Law, § 292, subd 21). This “individualized standard” went into effect on July 10,1979 and has been held to be not retroactive (Matter of Westinghouse Elec. Corp. v State Div. of Human Rights, supra, p 238). However it applies to this case where the allegedly discriminatory act occurred in November of 1980.

Under the current statute, then, it is not enough for the employer to show that the employee’s physical impairment is somehow related to the duties he must perform in the position sought. Nor is it sufficient to show that the impairment precludes the employee from performing the duties in a perfect manner. The statute bars discrimination against an impaired individual who is reasonably able to do what the position requires. Unless it is shown that the employee’s physical condition precludes him from performing to that extent, the disability is irrelevant to the job and can form no basis for denying him the position.

Thus at this stage of the proceeding the trial court erred in dismissing the petition. Even if it be assumed, as the Authority contends, that the restrictions imposed by petitioner’s heart condition do relate to the duties of an assistant station manager and may impair his ability to “fully” perform those duties to some unspecified extent, it does not follow that petitioner can claim no protection from the Human Rights Law. As noted, the determinative question under the amended statute is whether the petitioner is incapable of performing the duties required by the supervisory position in a reasonable manner and nothing submitted thus far by either side eliminates this as a factual question. Indeed at this stage it appears that the Authority terminated petitioner solely because of his probationary status. This it may not do if, as the petitioner contends, there was discrimination under the statute.

In sum, the motion to dismiss the petition should have been denied and the Authority should be required to submit its answer (CPLR 7804, subd [f]) addressing the discrimination issue. The court must then decide whether questions of fact exist warranting a hearing with respect to whether the petitioner’s probationary appointment was terminated because of his physical condition, and if so, whether the restrictions imposed by that condition and the nature of the activities actually required for the supervisory position would justify a conclusion that he cannot perform the job in a reasonable manner.

The order of the Appellate Division should be reversed, the motion to dismiss denied and the case remitted to the Supreme Court, Kings County, for further proceedings in accordance with this opinion.

Jasen, J.

(concurring). While I agree with the majority that the case should be remitted to the Supreme Court for further proceedings, I do so for the reasons that follow.

This case involves the provisions of the Human Rights Law (Executive Law, §§ 290-301) which prohibit employment discrimination by reason of disability. The issue presented is whether the court below erred as a matter of law in determining, without a hearing and without requiring respondents to submit an answer, that petitioner’s medical condition rendered him unable to perform his employment duties and, therefore, falls outside the statutory protections.

Several specific provisions of the statute apply here. Section 296 (subd 1, par [a]), of the Executive Law prohibits employment discrimination on the basis of disability and the recently enacted amendment to subdivision 21 of section 292 defines a covered disability as one which does “not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought.” Prior to this amendment, the statute’s protection did not apply to disabilities which were somehow related to the nature of the employment. (Matter of State Div. of Human Rights v Averill Park Cent. School Dist., 46 NY2d 950.) But, as we'noted in Matter of Westinghouse Elec. Corp. v State Div. of Human Rights (49 NY2d 234,238), the statute’s coverage was extended by the amendment to provide protection to individuals with a wider range of disabilities, excluding from its coverage only those disabilities which would actually impair or interfere with the ability to perform the employment activities involved. Henceforth, the mere fact that a medical, mental or physical condition is related to the employment sought is no longer sufficient justification for disparate treatment of an employee or applicant. The nexus between the disability and the employment involved must be “individualized”. No mere abstract or theoretical connection is sufficient. Rather, the particular disability must be such that it prevents the particular individual from performing in a reasonable manner the particular activities involved in the job or occupation before an employer is permitted to terminate the individual employee or treat him differently than others not similarly disabled.

Nevertheless, though an applicant or employee need not be able to perform perfectly to be entitled to the statutory protections, still he must be able to perform reasonably “the activities involved” — not just some or most or a reasonable proportion of those activities. The statute bars discrimination against a disabled individual who is able to do what the job or occupation requires. It does not mandate that an employer hire an individual who cannot perform the work involved. While the amended statute surely has a remedial purpose and necessitates accommodation of the disabled, it does not require absurd results.

The statute as amended prohibits discrimination against a disabled individual who can reasonably perform the tasks required. But it does not entitle any individual, whether or not disabled, to employment which that person can perform only in part. Indeed, any other interpretation is entirely inconsistent with the unamended clarifying provision in section 296 (subd 3-a, par [c]) which unambiguously states that “nothing contained * * * in subdivision one of this section [the subdivision claimed to have been violated] shall be construed to prevent the termination of employment of any person who is physically unable to perform his duties”. (Emphasis supplied.) Hence, the relevant question is not whether petitioner can in some general sense “perform the job in a reasonable manner” — any more than it is whether he can perform it “in a perfect manner” or whether his disabling condition is “somehow related” to the ability to engage in the activities of the job. Rather, as the statute and logic dictate, the pertinent question is whether petitioner can actually perform the particular “activities involved in the job” in a reasonably acceptable manner.

Before applying the foregoing to the specific facts of this case, it is essential to recognize that petitioner here was a probationary employee and as such he was subject to the generally “unfettered right” of an employer to terminate a probationer. (James v Board of Educ., 37 NY2d 891, 892.) Indeed, an employer may discharge a probationary employee without reasons or a hearing unless the employee has demonstrated that the termination was for a constitutionally impermissible purpose or in violation of a statutory proscription. (Matter of Stanziale v Executive Dept., Off. of Gen. Servs., 55 NY2d 735, 737; Matter of Holbrook v State Ins. Fund, 54 NY2d 892, 894.) Because a probationer has no vested right to continued employment (Matter of New York City Bd. of Educ. v Batista, 54 NY2d 379, 382), he need not be afforded a hearing or a statement of reasons unless there is no lawful basis for his termination (Matter of Talamo v Murphy, 38 NY2d 637, 639; cf. Board of Regents v Roth, 408 US 564, 578) or the record discloses a genuine issue concerning the infringement of a constitutional right (cf. Perry v Sindermann, 408 US 593, 598). Moreover, as we have consistently held, judicial examination of an administrative determination should be limited to a review of the record for substantial evidence that supports a rational and lawful basis for that determination. (Matter of Pell v Board of Educ., 34 NY2d 222, 230; Matter of Howard v Wyman, 28 NY2d 434, 438.)

Here, petitioner’s probationary promotion was terminated on account of “unsatisfactory probationary period” and he was returned to his former position. In response to petitioner’s article 78 petition alleging unlawful discrimination by reason of disability, respondents explained that petitioner was physically unable to perform the work in his probationary position. In support of that determination, respondents relied upon a medical report of their cardiologist consultant which outlined petitioner’s medical problems and which concluded that he “is not qualified to do full duty in [the probationary position]. He is to do no excessive stair climbing.” Petitioner contends that he is capable of stair climbing and, more importantly, he challenges the bona fides of the medical report. He claims that it contradicts a report of the same cardiologist issued one week earlier which did not declare any disqualification but instead stated that the petitioner “is returned to a full duty status”. There being no apparent explanation for the discrepancy between the two reports, petitioner argues that the later one is too questionable to support respondents’ determination. He further insists that a hearing is warranted to determine the sufficiency of respondents’ evidence and the lawfulness of the reasons for his termination in light of the antidiscrimination provisions of the Human Rights Law.

The resolution of the issues thus presented requires a reconciliation of two seemingly competing mandates. On the one hand, as our decisions have recognized, an employer is normally entitled to discharge an employee at any time during the nonbinding probationary period without the inconvenience and cost of a formal hearing and, indeed, even without giving reasons, whenever the employer is dissatisfied with the probationer. On the other hand, a disabled employee is entitled to the safeguard of the statutorily required “individualized” test to insure that he is not discharged for discriminatory reasons. Stated another way, this is n. case in which the employer’s general authority summarily to terminate a probationary employee must be reconciled with the special protection against discrimination afforded to disabled employees.

Supreme Court dismissed the petition without first requiring respondents to answer petitioner’s complaint. While a probationer is normally subject to summary discharge without a hearing, it is necessary in a case such as this for the trial court to determine whether, indeed, there is any legitimacy to petitioner’s claim of unlawful discrimination or whether, on the other hand, there is a rational and lawful basis for respondents’ action. For that purpose, respondents should be required to answer petitioner’s complaint and therein to state more thoroughly and clearly the reasons for its determination. Not only might this procedure obviate a hearing which our decisions have repeatedly held is not usually required when probationary employment is involved, but it will also conform to the protective mandate of the antidiscrimination law which requires that its provisions “be construed liberally for the accomplishment of the purposes thereof” (Executive Law, § 300). Moreover, a detailed answer will provide a more adequate record enabling judicial review to determine whether there is any basis for petitioner’s claim of discrimination, which, if substantiated, must be enjoined. (A similar proceeding was required in Drown v Portsmouth School Dist., 435 F2d 1182; and in Olson v Regents of Univ. of Minn., 301 F Supp 1356.)

The record as it presently stands is unclear on several matters which are essential to determine whether petitioner has in fact been subject to unlawful discrimination or whether respondents do have the requisite lawful basis for terminating him. The record is unclear whether petitioner was terminated solely because of his disabling condition or whether his probationary employment period was unsatisfactory for other reasons as well. It is unclear whether the initial medical report was intended to state that petitioner was actually qualified to return to his probationary position or whether it merely stated a fact, that after an extended absence from work due to illness, he was no longer ill. Moreover, if the former was intended, it is unclear whether there is any basis for the discrepancy between the initial report and the second which stated that petitioner was then unqualified to perform his probationary position. Additionally, it is unclear whether petitioner’s disqualification from “full duty” as stated in the second report means merely that he is unable perfectly to perform all the activities involved, or whether he is actually unable to perform some of them to any reasonable extent. Finally, that report’s reference to “excessive stair climbing” is unilluminating and leaves unanswered whether petitioner is unable to perform the amount of stair climbing actually required in the performance of his duties or just some abstract excessive amount.

In order that a more complete record be developed which would permit a sufficient review of both petitioner’s claim of discrimination and respondents’ basis for its action, respondents should be required to answer petitioner’s complaint, stating more precisely and explaining more fully their reasons for terminating petitioner’s probationary employment and, thereby, clarifying the matters thus far left uncertain. Upon receiving respondents’ answer and supporting affidavits, the trial court should decide whether respondents have provided substantial evidence that the basis for their action did not disregard the “individualized test” for disability discrimination.

Chief Judge Cooke and Judges Jones, Meyer, Simons and Kaye concur with Judge Wachtler; Judge Jasen concurs in a separate opinion.

Order reversed, with costs, motion to dismiss denied and matter remitted to Supreme Court, Kings County, for further proceedings in accordance with the opinion herein.

       We reject the suggestion in the concurring opinion that the reasonableness standard should be interpreted in a technical manner so as to require a parsing out and separate evaluation of each activity, as opposed to a more general consideration of the employee’s over-all ability to perform the job. When reasonableness is the test the weight to be accorded to a particular factor cannot be predicted in advance but must be considered in light of all the circumstances of the particular case. Thus in our view the suggested interpretation is inconsistent with the obvious intent of the recent amendment to shift the focus from technicalities to practicalities in cases involving claims of job discrimination on the basis of physical disability.

       The plain language of the statutory provision mandates the view expressed herein. Our interpretation certainly ought not to be governed by overtechnical construction, nor by disregard of the plain language, but, rather, by practicality, common sense and faithful adherence to the evident legislative intent.


author: Jasen, J.

text:
    Parochial Bus Systems, Inc., et al., Appellants, v Board of Education of the City of New York, Respondent.
    Argued October 25, 1983;
    decided December 15, 1983

      POINTS OF COUNSEL

      Joseph S. Rosenthal and Thomas J. McNamara for Parochial Bus Systems, Inc., appellant.
    I. In granting defendant summary judgment the court below mysteriously relied upon language that appears nowhere in the contract. (Rodolitz v Neptune Paper Prods., 22 NY2d 383.) II. There are triable issues of fact which preclude defendant from being granted summary judgment. (Millerton Agway Coop. v Briarcliff Farms, 17 NY2d 57; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Onondaga Soil Testing v Barton, Brown, Clyde & Loguidice, 69 AD2d 984; Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439; Varsity Tr. v Saporita, 98 Misc 2d 255, 71 AD2d 643, 48 NY2d 767.) III. The court below improperly engaged in the issue-determination rather than issue-finding. (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Strychalski v Mekus, 54 AD2d 1068.) IV. The court below improperly granted defendant summary judgment based solely upon the hearsay affirmations of its attorneys. (Sutton v East Riv. Sav. Bank, 55 NY2d 550; Roche v Hearst Corp., 53 NY2d 767; Zuckerman v City of New York, 49 NY2d 557; David Graubart, Inc. v Bank Leumi Trust Co., 48 NY2d 554.)

      Robert A. Kennedy, Richard L. O’Hara, Victoria Quesada and David Westermann, Jr., for Local 100, Transport Workers Union of America, appellant.
    I. The moving papers of the Board are insufficient, as a matter of law, for a grant of summary judgment. (Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338; Sutton v East Riv. Sav. Bank, 55 NY2d 550; Zuckerman v City of New York, 49 NY2d 557; Rymanowski v Pan Amer. World Airways, 70 AD2d 738, 49 NY2d 834; V. A. W. of Amer. v General Elec. Co., 38 AD2d 989; New England Inds. v Albatross Tanker Corp., 85 AD2d 539; Indig v Finkelstein, 23 NY2d 728; Friends of

      Animals v Associated Fur Mfrs., 46 NY2d 1065; Falk v Goodman, 7 NY2d 87.) II. Ambiguities in the “cessation of service” clause require a plenary trial on the merits. (Sutton v East Riv. Sav. Bank, 55 NY2d 550; Hartford Acc. & Ind. Co. v Wesolowski, 33 NY2d 169; Janos v Peck, 21 AD2d 529,15 NY2d 509; Fleischman v Furgueson, 223 NY 235; Meade v Poppenberg, 167 App Div 411; United States Expansion Bolt Co. v Marmorstein, 181 App Div 790; 67 Wall St. Co. v Franklin Nat. Bank, 37 NY2d 245; Semmes Motors v Ford Motor Co., 429 F2d 1197; Varsity Tr. v Saporita, 98 Misc 2d 255, 71 AD2d 643, 48 NY2d 767.) III. The court below improperly engaged in issue-determination. (Rotuba Extruders v Ceppos, 46 NY2d 223; Falk v Goodman, 7 NY2d 87; Esteve v Abad, 271 App Div 725; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Stelick v Gangl, 47 AD2d 789; Greenberg v Manlon Realty, 43 AD2d 968.)

      Frederick A. O. Schwarz, Jr., Corporation Counsel {John F. Grubin and Mark H. Weinstein of counsel), for respondent.
    I. Plaintiffs failed to present a notice of claim to defendant’s governing body. Therefore, section 3813 of the Education Law mandates dismissal of this action. (Public Improvements v Board of Educ., 81 AD2d 537, 56 NY2d 850; Crescent Elec. Installation Corp. v Board of Educ., 72 AD2d 760, 50 NY2d 780; H & J Floor Covering v Board of Educ., 66 AD2d 588; P. J. Panzeca, Inc. v Board of Educ., 29 NY2d 508, 676; Pugh v Board of Educ., 38 AD2d 619, 30 NY2d 968; Matter of Defelice v Board of Educ., 37 AD2d 930; Matter of Lloyd [MVAIC], 23 NY2d 478; Tarquinio v City of New York, 84 AD2d 265, 56 NY2d 950; Moore v New York City Housing Auth., 35 AD2d 553; Almar Constr. Corp. v Hughes & Sons, 58 AD2d 615, 42 NY2d 1009.) II. The “cessation of service clause” on which plaintiffs rely clearly applies only where the contractor was willing and able to provide or attempt to provide busing services. Since there is no issue of fact that Parochial was unwilling even to attempt to perform during the period in question, the action was properly dismissed. (Sutton v East Riv. Sav. Bank, 55 NY2d 550; West, Weir & Bartel v Carter Paint Co., 25 NY2d 535; Bethlehem Steel Co. v Turner Constr. Co., 2 NY2d 456; Brainard v New York Cent. R.R. Co., 242 NY 125; Portsmouth Baseball Corp. v Frick, 278 F2d 395, 364 US 831; West Africa Nav. v Ore & Ferro Corp., 192 F Supp 651; Messina v Lufthansa German Airlines, 47 NY2d 111; Laba v Carey, 29 NY2d 302; Rotuba Extruders v Ceppos, 46 NY2d 223; Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338.)
   OPINION OF THE COURT

Jasen, J.

The principal issue on appeal in this contract action is whether the failure to present a claim to the Board of Education pursuant to section 3813 of the Education Law necessarily bars an action against it, where the notice has instead been served upon an officer of one of the bureaus operating under the supervision of the Board.

This action was brought by plaintiff Parochial Bus Systems, Inc. (“Parochial”), to recover amounts allegedly owed to it under a contract with defendant Board of Education of the City of New York (the Board) whereby Parochial was to provide transportation for school children. During the period from February 16, 1979 through May 10, 1979, the members of two unions unaffiliated with the employees of Parochial engaged in a wildcat strike against the Board, and Parochial did not provide transportation at any time therein. Parochial commenced this action on November 8, 1979, claiming entitlement to full compensation under the contractual provisions, and alleging that it was at all times prepared to provide transportation services but was unable safely to do so because of the violence incident to the wildcat strike.

On April 16, 1980, plaintiff Local 100, whose members were employees of Parochial, was granted permission to intervene and, shortly thereafter, served its complaint upon the Board seeking wages owed its members out of the compensation unpaid to Parochial. Previously, Local 100 had won an arbitration award against Parochial for the payment of wages to its member-employees for the period of the wildcat strike. The arbitrator, however, stayed the enforcement of that award pending the satisfaction of the Board’s alleged obligation to Parochial.

The Board moved at Supreme Court for summary judgment on the ground that Parochial had failed to satisfy the notice of claim requirements of section 3813 of the Education Law. The motion was denied, the Trial Judge holding that Parochial had satisfied the statutory requirements by its unverified letter of July 26, 1979 to the Director of the Bureau of Pupil Transportation. That letter, which was forwarded to and answered by the Board’s Office of Legal Services, all within the statutory three-month time limitation, was deemed sufficient to alert the Board to the claim made in this case. On appeal, the Appellate Division, while agreeing as to the sufficiency of Parochial’s notice of claim, nevertheless granted the Board’s motion for summary judgment and dismissed both complaints, finding that Parochial was in no way “prevented” by the strike from providing transportation for the school children. Plaintiffs brought their appeal to this court as of right; the Board has not cross-appealed from any part of the order of the Appellate Division, including the ruling that Parochial’s notice of claim substantially complied with the requirements of section 3813 of the Education Law.

We are presented with a threshold issue: whether the Board may now obtain review of the adverse ruling below which upheld Parochial’s notice of claim, even though the Board failed to cross-appeal from that ruling. Stated in other words, may the successful party which has received all of the relief it sought below be permitted, on an appeal brought by the losing party, to challenge an adverse determination from which it has not cross-appealed? It has been noted by the commentators that this question has received “scant attention” and, indeed, we have had little opportunity to clarify the matter. (7 Weinstein-Korn-Miller, NY Civ Prac, par 5511.06, p 55-74; Cohen and Karger, Powers of the New York Court of Appeals, § 91, pp 394-395.)

Generally, the party who has successfully obtained a judgment or order in his favor is not aggrieved by it, and, consequently, has no need and, in fact, no right to appeal. (CPLR 5511; 10 Carmody-Wait 2d, NY Prac, § 70:54; Siegel, NY Prac, § 525; 7 Weinstein-Korn-Miller, NY Civ Prac, par 5511.05.) The major exception to this general rule, however, is that the successful party may appeal or cross-appeal from a judgment or order in his favor if he is nevertheless prejudiced because it does not grant him complete relief. This exception would include those situations in which the successful party received an award less favorable than he sought (Norton & Siegel v Nolan, 276 NY 392) or a judgment which denied him some affirmative claim or substantial right (City of Rye v Public Serv. Mut. Ins. Co., 34 NY2d 470). But where the successful party has obtained the full relief sought, he has no grounds for appeal or cross appeal (Matter of Bayswater Health Related Facility v Karagheuzoff, 37 NY2d 408, 413). This is so even where that party disagrees with the particular findings, rationale or the opinion supporting the judgment or order below in his favor (Matter of Zaiac, 279 NY 545, 554), or where he failed to prevail on all the issues that had been raised (Matter of Kaplan v Rohan, 7 NY2d 884; 7 Weinstein-Korn-Miller, NY Civ Prac, par 5511.06).

The question remaining in such cases, however, is whether the successful nonaggrieved party, thus barred from bringing an appeal or cross appeal, may nonetheless seek review of an adverse holding rendered below, on the appeal from the final judgment or order brought by the losing party. Whatever may have been the confusion existing under section 580 of the old Civil Practice Act (repealed Sept. 1,1963), the provisions of CPLR 5501 (subd [a], par 1) permit a broad scope of review of any such determinations that were “adverse to the respondent”, as long as the final judgment or order has been properly appealed by the appellant. (10 Carmody-Wait 2d, NY Prac, § 70:337; Siegel, NY Prac, § 530, pp 736-737; 7 Weinstein-Korn-Miller, NY Civ Prac, pars 5501.04, 5511.06.) An appeal from a final judgment or order brings up for review any determination of the court below “which was adverse to the respondent” and which “if reversed, would entitle the respondent to prevail in whole or in part on [the] appeal”. (CPLR 5501, subd [a], par 1.) This rule permits a respondent to obtain review of a determination incorrectly rendered below where, otherwise, he might suffer a reversal of the final judgment or order upon some other ground. Hence, the successful party, who is not aggrieved by the judgment or order appealed from and who, therefore, has no right to bring an appeal, is entitled to raise an error made below, for review by the appellate court, as long as that error has been properly preserved and would, if corrected, support a judgment in his favor. (See Town of Massena v Niagara Mohawk Power Corp., 45 NY2d 482, 488; Kulaga v State of New York, 37 AD2d 58, 63 [concurring opn], affd 31 NY2d 756; cf. Ferro v Bersani, 78 AD2d 1010; see, generally, Appeal — Right of Winning Party, Ann., 69 ALR2d 701.) Any such error is reviewable once the final judgment or order has been properly appealed from by the losing party.

Here, where the Board was the successful party below, obtaining all the relief it sought, to wit: summary judgment in its favor and dismissal of the complaints, it was not aggrieved by the incidental adverse determination which upheld the sufficiency of plaintiffs’ notice of claim. Consequently, there was no need for the Board to appeal from that incidental holding. However, because a reversal of that incidental determination would entitle the Board to prevail on this appeal, in the event Parochial was successful on the other issue in this case, the Board has the right to assert error and raise the incidental issue for our review. The Board having done so, the issue of the sufficiency of Parochial’s notice of claim is properly before us, and to that we now turn.

The contested notice of claim consisted of the letter written by Parochial’s vice-president, dated July 26, 1979, including the invoices for the disputed period as enclosures, which was sent to the Director of the Board’s Bureau of Pupil Transportation. The letter requested payment in the amount of the enclosed invoices, quoted the specific provision of the contract between Parochial and the Board upon which Parochial’s claim is predicated, and explained the then pending arbitration proceeding in which the member-employees of Local 100 were seeking wages and benefits for the period in question. The letter was apparently forwarded to the Board’s central office in Brooklyn, New York, whereupon the Board’s Office of Legal Services acknowledged receipt in a letter dated August 28, 1979, denying Parochial’s claim. The preparation, delivery, receipt and acknowledgment of Parochial’s letter all occurred within three months of the last day of the wildcat strike. The lower courts both held the letter to be sufficient to satisfy the statutory requirements for a notice of claim, finding, in the words of Supreme Court, that “[i]t is inconceivable that the letter dated July 26, 1979, did not sufficiently alert the Board of Education to the possibility of the instant litigation.”

As we have stated on previous occasions, “the purpose of section 3813 of the Education Law is to give a school district prompt notice of claims ‘so that investigation may be made before it is too late for investigation to be efficient’.” (Matter of Board of Educ. [Wager Constr. Corp.], 37 NY2d 283, 289; cf. Winbush v City of Mount Vernon, 306 NY 327, 333.) The essential elements to be included in the notice are the nature of the claim, the time when, the place where and the manner in which the claim arose (Widger v Central School Dist. No. 1, 18 NY2d 646, 648) and, where an action in contract is involved, the monetary demand and some explanation of its computation. (P. J. Panzeca, Inc. v Board of Educ., 29 NY2d 508, 509.) Satisfaction of these requirements is a condition precedent to bringing an action against a school district or a board of education (Matter of Board of Educ. [Wager Constr. Corp.], supra, at p 289; Matter of Board of Educ. [Heckler Elec. Co.], 7 NY2d 476, 482) and, moreover, failure to present a claim within the statutory time limitation (Pugh v Board of Educ., 30 NY2d 968; Walker & Co. v Board of Educ., 44 NY2d 918) or to notify the correct party (Matter of Geneseo Cent. School [Perfetto & Whalen Constr. Corp.], 53 NY2d 306, 311; Bayer v Board of Educ., 58 Misc 2d 259, 260 [Meyer, J.]), is a fatal defect.

Although we have previously held that, where the school district has been “sufficiently informed” of the claim (Widger v Central School Dist. No. 1, supra, at p 648), “all that is required is substantial compliance with the statute” regarding the degree of descriptive detail in a notice of claim (Matter of Baker [Board of Educ.], 309 NY 551, 557), we have, nevertheless, always insisted that statutory requirements mandating notification to the proper public body or official must be fulfilled. (Chesney v Board of Educ., 5 NY2d 1007; Munroe v Booth, 305 NY 426.) Indeed, this court has long held, in the words of Chief Judge Cardozo, that where the “legislature has said that a particular form of notice, conveyed with particular details to particular public officers, shall be a prerequisite to the right to sue [,] [t]he courts are without power to substitute something else.” (Thomann v City of Rochester, 256 NY 165, 172 [emphasis added].) Moreover, “[w]hat satisfies [a statute such as section 3813 of the Education Law] is not knowledge of the wrong. What the statute exacts is notice of the ‘claim.’ ” (Id.).

Nor may a claimant be relieved of “a positive statutory mandate” simply because no prejudice has resulted, “even to avoid a harsh result.” (P. J. Panzeca, Inc. v Board of Educ., 29 NY2d 508, 510, supra; cf. Matter of Lloyd [MVAIC], 23 NY2d 478,481.) Indeed, addressing a similar question in Ponsrok v City of Yonkers (254 NY 91, 95), Judge Pound wrote for this court that the “fact that the [public body] has not been prejudiced is immaterial. The court may not exercise a dispensing power based on principles of abstract justice fitting the particular case. It may only see that the requirements of the law are complied with.”

Accordingly, Parochial’s failure to present its notice of claim “to the governing body of [the] district or school”, here the defendant Board, as required by the clear language of subdivision 1 of section 3813 of the Education Law, is a fatal defect mandating dismissal of this action.

The statutory prerequisite is not satisfied by presentment to any other individual or body, and, moreover, the statute permits no exception regardless of whether the Board had actual knowledge of the claim or failed to demonstrate actual prejudice. The statute “must be read and given effect as it is written by the Legislature, not as the court may think it should or would have been written if the Legislature had envisaged all the problems and complications which might arise”. (Lawrence Constr. Corp. v State of New York, 293 NY 634, 639; see, also, Bayer v Board of Educ., 58 Misc 2d 259, 261, supra.) The Legislature has spoken unequivocally that no action or proceeding may be prosecuted or maintained against any school district or board of education unless a notice of claim has been “presented to the governing body” (Education Law, § 3813, subd 1 [emphasis added]), and this court may not disregard its pronouncement. (Munroe v Booth, 305 NY 426, 428, supra.)

For this reason, the order of the Appellate Division should be affirmed.

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

Order affirmed, with costs.

      . Indeed, even where the order of the Appellate Division “directs a modification * ** * in a substantial respect”, the successful party has no right to appeal unless it is actually “aggrieved” by that modification. (CPLR 5601, subd [a], par [iii]; Matter of Mize v State Div. of Human Rights, 31 NY2d 1032; 7 Weinstein-Korn-Miller, NY Civ Prac, par 5601.05.)

      . The recently enacted subdivision 2-a of section 3813 of the Education Law, which took effect on July 31,1981, authorizes courts, in the exercise of discretion, to extend the time to serve a notice of claim in circumstances where an agent of the school or district “acquired actual knowledge” of the claim and where the district or school has not been “substantially prejudiced”. That amendment, however, is explicitly inapplicable to claims, such as this one, “arising out of contracts entered into by the parties before the effective date”.

      . Curiously, subdivision 2 of section 3813, referring to tort actions or proceedings, expressly incorporates section 50-e of the General Municipal Law which, in turn, provides that service of a notice of claim shall be valid, notwithstanding defects in the manner of service, “if the notice is actually received by a proper person within the time specified”. (Subd 3, par [c] [emphasis added].) Contrawise, however, subdivision 1 of section 3813, applicable to contract actions and therefore to the instant case, contains no such reference to the General Municipal Law or to a similar saving provision regarding an “actually received” notice.


text:
    Olga V. Defreitas, Appellant, v City of New York, Respondent, et al., Defendant.
    Decided July 12, 1983

      APPEARANCES OF COUNSEL

      Austin Titus for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Debra A. James of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (91 AD2d 968).

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


text:
    In the Matter of Roxann Joyce M., a Child. Alleged to be Permanently Neglected. Catholic Guardian Society of the Diocese of Brooklyn, Incorporated, et al., Respondents; Nicholas M., Appellant.
    Decided July 12, 1983

      APPEARANCES OF COUNSEL

      Edwin Ira Schulman for appellant.

      Richard J. Cea for Catholic Guardian Society of the Diocese of Brooklyn, Inc., respondent.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Sara P. Schechter of counsel), for New York City Commissioner of Social Services, respondent.

      Lenore Gittis, Law Guardian, and Edward Carr, Jr., for Roxann J. M.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed, without costs, and matter remitted to the Appellate Division, Second Department, for review of the facts in light of Santosky v Kramer (455 US 745), or, in its discretion, remission to Family Court for a de novo hearing (cf. Matter of Michael B., 58 NY2d 71).

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


text:
    In the Matter of Charles Archul, Appellant, v Board of Trustees of the New York City Fire Department, Article IB Pension Fund, et al., Respondents.
    Decided July 12, 1983

      APPEARANCES OF COUNSEL

      Kenneth E. Gordon for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (.Michael Gage of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (93 AD2d 716).

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


text:
    The People of the State of New York, Respondent, v Bruce Clarke, Appellant.
    Decided July 12, 1983

      APPEARANCES OF COUNSEL

      Valerie Hriciga and William E. Hellerstein for appellant. Robert Morgenthau, District Attorney {James M. McGuire of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Term should be affirmed.

Defendant was charged with criminal possession of a weapon in the fourth degree. (Penal Law, § 265.01.) He moved to suppress the gun on the ground that the police did not have reasonable suspicion at the time of the stop and frisk.

The suppression court denied the motion, reasoning that the totality of the officers’ observations supported a determination that they possessed reasonable suspicion at the time defendant was stopped and frisked. After the denial of his suppression motion, defendant entered a guilty plea to the charge and was sentenced to an unconditional discharge.

On appeal, the Appellate Term affirmed for the reasons stated by the suppression Judge.

Whether reasonable suspicion exists at the time of a stop and frisk has been held to be a mixed question of law and fact which is beyond the review powers of this court, other than to ascertain whether the record supports that determination. (People v Harrison, 57 NY2d 470.)

There being adequate support in the record for the determination made by the suppression court and affirmed by the Appellate Term in this case, the question of whether the police had reasonable suspicion to warrant the minimal intrusion of a stop and frisk is beyond the further review powers of this court.

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

Accordingly, an affirmance of the order of the Appellate Term is warranted.

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


text:
    In the Matter of Blue Cross and Blue Shield of Greater New York, Respondent, v State Division of Human Rights, Appellant, et al., Respondents.

      Argued April 28, 1983;
    decided July 12, 1983

      APPEARANCES OF COUNSEL

      Ann Thacker Anderson for appellant.

      Joel M. Rosenthal and Ellen Barrett Levin for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the case remitted to that court for reconsideration in light of the decision of the Supreme Court of the United States in Shaw v Delta Airlines (463 US _, 103 S Ct 2890, 2903-2905).

The disposition at the Appellate Division from which the present appeal is taken to our court was predicated on its conclusion that the Federal Employee Retirement Income Security Act of 1974 (ERISA) (US Code, tit 29, § 1001 et seq.) pre-empted our State’s Human Rights Law (Executive Law, § 296). In Shaw {supra), the Supreme Court held that the Human Rights Law is pre-empted with respect to ERISA benefit plans only insofar as it prohibits practices that are lawful under Federal law. In view, then, of what amounts to a partial pre-emption, as the Supreme Court noted (463 US _, _, 103 S Ct 2890, 2903-2905): “Courts and state agencies, rather than considering whether employment practices are unlawful under a broad state law, will have to determine whether they are prohibited by Title VII. If they are not, the state law will be superseded and the agency will lack authority to act.”

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

Order reversed, without costs, and the case remitted to the Appellate Division, First Department, for further proceedings in accordance with the memorandum herein.


text:
    In the Matter of Therese Deren, Appellant, v Edward V. Regan, as Comptroller of the State of New York, Respondent.
    Decided July 12, 1983

      APPEARANCES OF COUNSEL

      James W. Kirkpatrick for appellant.

      Robert Abrams, Attorney-General {John Q. Driscoll and Peter H. Schiff of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, for the reasons stated in the memorandum at the Appellate Division. We would only add that Matter of O’Marah v Levitt (35 NY2d 593) does not require a different result. The petitioner was not, as in O’Marah, on a leave of absence without pay, but had been terminated from employment and her name had been placed on a hiring preference list. Respondent’s determination that petitioner was not therefore “in service” within the meaning of section 62 (subd aa, par 2) of the Retirement and Social Security Law so as to be eligible to apply for ordinary disability retirement was rational and should not be disturbed.

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

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


text:
    The People of the State of New York, Respondent, v David Sanin, Appellant.
    Decided July 12, 1983

      APPEARANCES OF COUNSEL

      Paul J. Cambria, Jr., for appellant.

      Richard J. Arcara, District Attorney (.Deborah N. Sorbini of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

A warrant was issued authorizing a search of defendant’s apartment, of the person of defendant and of any other person found inside the apartment. When two police officers arrived at the apartment to execute the warrant, defendant was pulling into the driveway in his car. Defendant was searched in the driveway, and a small quantity of cocaine was found on his person. The officers then searched defendant’s apartment and recovered a greater amount of cocaine along with a handgun.

Defendant contends that the portion of the warrant authorizing search of defendant’s person was limited to a search inside the apartment and that the search of his person in the driveway was invalid under our decision in People v Green (33 NY2d 496). The provision allowing a search of defendant’s person should be interpreted as authorizing a personal search. In Green, the focus of the warrant application was on the presence of drugs in an apartment; the tie to defendant was only his occupancy of the apartment and thus of possible constructive possession of drugs and no other evidence was offered of drug activity on his part. Here the evidence was that defendant had sold drugs; the apartment was identified only as the locus of the sales. The activities of defendant being the predicate for issuance of the warrant, the warrant should be interpreted as authorizing a personal search of defendant at least as he approached the apartment. Defendant was therefore properly searched in the driveway.

On the same analysis we reject defendant’s argument that the evidence submitted to the issuing magistrate did not establish probable cause for the issuance of a warrant authorizing the search of defendant’s person.

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

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

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


text:
    Bayly, Martin & Fay, Inc., et al., Appellants, v Allan C. Glaser, Respondent.
    Decided July 12, 1983

      APPEARANCES OF COUNSEL

      Richard N. Gray for appellant.

      Robert Rosenthal for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (92 AD2d 850).

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


text:
    The People of the State of New York ex rel. John S. Hall, Sr., on Behalf of Harry J. Haralambou, Appellant, v Eugene S. LeFevre, as Superintendent of the Clinton Correctional Facility, Respondent.
    Decided July 12, 1983

      APPEARANCES OF COUNSEL

      John S. Hall, Sr., for appellant.

      Robert Abrams, Attorney-General (Martin A. Hotvet and Peter H. Schiff of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Where the only remedy sought is a new trial or appeal and not immediate release from custody, habeas corpus is an improper remedy (People ex rel. Douglas v Vincent, 50 NY2d 901). Here the only claim in the petition that could result in release is that because relator suffers from epilepsy imprisonment constitutes cruel and unusual punishment. There being no allegation that the prison officials have been deliberately indifferent to relator’s medical heeds, however, the writ was properly dismissed (Estelle v Gamble, 429 US 97).

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

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


text:
    Louis A. Marabella, Appellant, v Timothy Lundy et al., Respondents, et al., Defendant.
    Decided July 12, 1983

      APPEARANCES OF COUNSEL

      Solomon Abrahams for appellant.

      Joseph J. Buderwitz, Jr., for respondents.
   OPINION OF THE COURT

Memorandum.

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

We need not consider the recent amendments to the CPLR allowing the lower courts to exercise discretion “to excuse delay or default resulting from law office failure” (CPLR 2005, 3012, subd [d]), for we agree with the Appellate Division that plaintiff’s papers failed to establish the merit of the cause of action as required by 22 NYCRR 675.5 (b).

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

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


text:
    Shephard Melzer et al., Respondents, v Arthur Robbins et al., Appellants.
    Decided July 12, 1983

      APPEARANCES OF COUNSEL

      Michael Permut for appellants.

      Joseph Di Benedetto for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reason stated in the memorandum at the Appellate Division (92 AD2d 540; see, also, Di Falco, Field & Lomenzo v Newburgh Dyeing Corp., 54 NY2d 715; Zuckerman v City of New York, 49 NY2d 557).

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


text:
    In the Matter of Fernande Hoexter, Respondent. Walter Hoexter et al., Appellants.
    Submitted May 31, 1983;
    decided July 12, 1983
   Motion for leave to appeal denied, with $20 costs and necessary reproduction disbursements. On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that it does not lie.


text:
    In the Matter of Richard J. Lentlie, Appellant, v John C. Egan, as Commissioner of the New York State Office of General Services, et al., Respondents.
    Submitted June 20, 1983;
    decided July 12, 1983
   Motion for leave to appeal denied upon the ground that an appeal lies as of right (CPLR 5601, subd [a], par [iii]).


text:
    Glenn A. Lyle et al., Plaintiffs, v Albert Mendel & Sons, Inc., et al., Respondents. Department of Agriculture and Markets of the State of New York, Appellant.
    Submitted July 5, 1983;
    decided July 12, 1983
   Motion to dismiss appeal 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 (Cohen and Karger, Powers of the New York Court of Appeals, § 46, pp 202-203).


text:
    Whippany Paper Board Co., Inc., Respondent, v V.C.N.Y., Inc., Formerly Known as Victory Container Corporation, et al., Appellants. (And Another Action.)

      Submitted May 23, 1983;
    decided July 7, 1983
   Motion insofar as it seeks leave to appeal by defendant Radin dismissed upon the ground that the order sought to be appealed from as to that defendant does not finally determine the action within the meaning of the Constitution; motion insofar as it seeks leave to appeal by defendant V.C.N.Y., Inc., denied. Twenty dollars costs and necessary reproduction disbursements to respondent.


text:
    In the Matter of John H. Smith, Appellant, v Edward J. Mahoney et al., Constituting the Board of Elections of the County of Erie, Respondents.
    Argued August 29, 1983;
    decided August 30, 1983

      APPEARANCES OF COUNSEL

      William Sims for appellant.

      Eugene F. Pigott, Jr., County Attorney {Roger D. Avent of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

Petitioner submitted a designating petition with a cover sheet that omitted the title of the office for which he was running. This information is required by statute (Election Law, § 6-134, subd 2), with which there must be strict compliance (see Matter of Hutson v Bass, 54 NY2d 772, 773-774). Petitioner’s failure to include the necessary information is not excused by the fact that the form he used was supplied by the local board of elections. That body is not empowered to authorize, implicitly or explicitly, noncompliance with the strictures set forth by the Legislature in section 6-134.

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

Order affirmed, without costs, in a memorandum.


text:
    In the Matter of Josephine R. Golata, Appellant, v Edward J. Mahoney et al., Constituting the Board of Elections of the County of Erie, et al., Respondents.
    Argued August 29, 1983;
    decided August 30, 1983

      APPEARANCES OF COUNSEL

      Peter A. Reese for appellant.

      Eugene F. Pigott,Jr., County Attorney (Roger D. Avent of counsel), for Erie County Board of Elections, respondent.

      Timothy R. Lovallo for Stephen J. Godzisz, respondent.
   OPINION OF THE COURT

Order affirmed, without costs (Matter of Smith v Mahoney, 60 NY2d 596; Matter of Hutson v Bass, 54 NY2d 772).

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


text:
    In the Matter of George A. Ferguson, Appellant, v Everett F. McNab et al., Constituting the Board of Elections of the County of Suffolk, and Lorraine A. Santoianni et al., Respondents.
    Argued August 29, 1983;
    decided August 30, 1983

      APPEARANCES OF COUNSEL

      Herbert L. Haas for appellant.

      Thomas J. Spargo for respondents.
   OPINION OF THE COURT

Memorandum.

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

Respondent candidate having two residences may choose one to which she has legitimate, significant and continuing attachments as her residence for purposes of the Election Law. (Matter of Gallagher v Dinkins, 32 NY2d 839; Election Law, § 1-104, subd 22.) We find that the determination of the Appellate Division more nearly comports with the evidence that respondent Lorraine A. Santoianni has chosen her Huntington address.

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

Order affirmed, without costs, in a memorandum.


text:
    In the Matter of Charles H. Green, Respondent, v Everett F. McNab et al., Constituting the Board of Elections of Suffolk County, and Daniel Martin, Appellant.
    Argued August 29, 1983;
    decided August 30, 1983

      APPEARANCES OF COUNSEL

      Thomas J. Spargo for appellant.

      Herbert L. Haas for respondent.
   OPINION OF THE COURT

Order affirmed, without costs, for the reasons stated in the memorandum at the Appellate Division (96 AD2d 918).

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


text:
    In the Matter of Anthony J. Ferraro, Jr., Appellant, v Everett F. McNab et al., Constituting the Board of Elections of the County of Suffolk, and John O. Costello et al., Respondents.
    Argued August 29, 1983;
    decided August 30, 1983

      APPEARANCES OF COUNSEL

      Herbert L. Haas for appellant.

      Thomas J. Spargo for respondents.
   OPINION OF THE COURT

Memorandum.

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

Absent a finding that the candidates’designating petition is permeated with fraud, a showing that some signatures were not properly obtained should not result in invalidation of the entire designating petition. Inasmuch as the petition in the present case has sufficient valid signatures, the Appellate Division correctly ordered that the candidates’ names be restored to the ballot. Further, appellant’s contention that the petition should be invalidated because some signatures also appeared on a previous petition circulated by one of the designated candidates is without merit in the absence of an allegation that the previous petition was filed with the board of elections.

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

Order affirmed, without costs, in a memorandum.


text:
    In the Matter of Anthony Grancio, Appellant, v Frank Coveney et al., Constituting the Board of Elections of the County of Suffolk, and William F. X. Klan et al., Respondents.
    Argued August 29, 1983;
    decided August 30, 1983

      APPEARANCES OF COUNSEL

      Edward, J. Ledogar for appellant.

      Robert C. Gottlieb for respondents.
   OPINION OF THE COURT

Memorandum.

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

That the Appellate Division correctly held the rules and regulations of the Conservative Party invalid because inconsistent with section 6-120 of the Election Law is evident from an examination of the provisions of that section. Subdivision 1, which deals with the validity of a primary designating petition for party nomination, states affirmatively that the petition “shall be valid only if the person so designated is an enrolled member of the party”. Subdivision 2, which deals with party designation or nomination by other than petition, states negatively that no such “designation or nomination shall be valid unless the person so designated or nominated shall be an enrolled member of the * * * party”. Each is, however, expressly limited; subdivision 1, by the phrase “except as otherwise herein provided” and subdivision 2, by the phrase “[e]xcept as provided in subdivisions three and four of this section”.

Subdivision 3 validates the designation or nomination of a person not an enrolled member of the party when the appropriate party committee so authorizes. Subdivision 4 by making the entire section inapplicable to designations or nominations of a new political party for the first time, or by party caucus, or for judicial office, validates the designation or nomination of a person not enrolled as a party member for such offices or in such manner without party committee authorization. It follows that the Conservative Party rule which would require party authorization for a judicial nomination is more restrictive than the statute and, therefore, invalid (see Matter of Rosenthal v Harwood, 35 NY2d 469, 475).

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

Order affirmed, without costs, in a memorandum.


text:
    In the Matter of Tony Corrente, Appellant, v Everett F. McNab et al., Constituting the Board of Elections of the County of Suffolk, et al., Respondents.
    Argued August 29, 1983;
    decided August 30, 1983
   Appeal taken as of right dismissed, without costs, upon the ground that the modification at the Appellate Division is not in a “respect, which is within the power of the court of appeals to review” (CPLR 5601, subd [a], par [iii]). Oral applications, treated as motions for leave to appeal, denied.


text:
    In the Matter of James J. Ernewein et al., Respondents, v Frederick F. Pordum, Appellant, and Joseph F. Crangle et al., Respondents.
    Submitted August 30, 1983;
    decided August 30, 1983
   Motion, insofar as it seeks leave to appeal from the order of the Appellate Division which dismissed the appeal from an order denying a motion to supplement the record, dismissed, and, on the court’s own motion, appeal taken as of right from that order dismissed, without costs, each upon the ground that the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied. On the court’s own motion, appeal taken as of right from the Appellate Division order of modification dismissed, without costs, upon the grounds that appellant is not aggrieved by the modification and no substantial constitutional question is directly involved.


text:
    In the Matter of the Application of Thomas Schutrick, Appellant, v Westchester County Board of Elections et al., Respondents.
    Submitted August 30, 1983;
    decided August 30, 1983
   On the court’s own motion, appeal taken as of right, dismissed, without costs, upon the grounds that no substantial constitutional question is directly involved and the order of the Appellate Division is not one of modification within the meaning of CPLR 5601 (subd [a], par [iii]). Motion for leave to appeal denied.


text:
    In the Matter of Richard Engert et al., Respondents, v Everett F. McNab et al., Constituting the Board of Elections of the County of Suffolk, and Patricia E. Anton et al., Appellants.
    Argued August 30, 1983;
    decided August 31, 1983
    APPEARANCES OF COUNSEL

      Steven M. Schapiro for appellants.

      Frederic Block for respondents.
   OPINION OF THE COURT

Memorandum.

Order reversed, without costs, and petition to validate dismissed.

In Matter of Hutson v Bass (54 NY2d 772, 774), we emphasized that “[wjhile substantial compliance is acceptable as to details of form, there must be strict compliance with statutory commands as to matters of prescribed content”. The failure of the petitioners to set forth on the cover sheet of their designating petition the information necessary to comply with subdivision 2 of section 6-134 of the Election Law is a matter of substance, and not form, and that “omission to include the prescribed information is fatal.” (Matter of Frome v Board of Elections, 57 NY2d 741, 742.)

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

Order reversed, etc.


text:
    In the Matter of Anthony Grancio, Appellant, v Frank Coveney et al., Constituting the Board of Elections in the County of Suffolk, and Benedict P. Vuturo et al., Respondents.
    Argued August 30, 1983;
    decided August 31, 1983

      APPEARANCES OF COUNSEL

      Vincent J. Hand for appellant.

      Benedict P. Vuturo, respondent pro se, and for Charles Tomasella and another, respondents.
   OPINION OF THE COURT

Memorandum.

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

Petitioners seek in these proceedings to invalidate designating petitions filed with the Suffolk County Board of Elections by the three respondents, each of whom seeks the Conservative Party nomination for District Court Judge in this year’s primary election. -

The petition sets forth several grounds for invalidation, but Trial Term dismissed the petition in its entirety after a hearing. It held that the court lacked jurisdiction because, the proceedings were governed by subdivision (b) of section 6204.1 of the Rules and Regulations of the State Board of Elections and petitioner had not complied with it. The rule requires service of specification of objections on respondents on or before the date of filing any specifications with the election board (see 9 NYCRR 6204.1 [b]). Notwithstanding its ruling, the court considered the several objections in the petition and found that none required invalidation. On appeal, the Appellate Division affirmed holding that Trial Term correctly applied the State rule. It did not rule on petitioner’s specific objections.

By its terms, rule 6204.1 (b) only applies to the State Board of Elections. The applicable statute provides that county boards may adopt their own rules (Election Law, § 6-154, subd 2) and local boards are not subject to the State rules unless they elect to follow them. Inasmuch as there is no local rule requiring service of specification of objections on respondents, the Appellate Division should have passed upon petitioner’s objections to the petition. Since the parties agree that there are no disputed facts, we now do so.

Petitioner first maintains that since respondents are not enrolled members of the Conservative Party, they may not become candidates of it under the party’s rules without a certificate of resolution. No certificate is required, however, because the rules are in conflict with the express provisions of subdivision 4 of section 6-120 of the Election Law which excludes judicial candidates from such a requirement. The rules are therefore invalid (see Matter of Grancio v Coveney, 60 NY2d 603).

Second, petitioner contends that certain signatures are void because the signers listed only the street address, election district and town of residence without listing the hamlet of their residence. The information supplied met the requirement of subdivision 1 of section 6-130 of the Election Law that the signer’s “town or city” be designated on the petition.

Third, petitioner contends that several sheets witnessed by Raymond Nugent, Jr., were void because he was not an enrolled member of the Conservative Party when he executed them (see Election Law, § 6-132, subd 2). The facts established that in 1980 Nugent was registered in the Town of Babylon as a member of the Democratic Party. Around Memorial Day in 1981 he moved to Montauk, New York, and in November of 1981 he moved to his present address at West Jslip. On July 7, 1983, he registered as a member of the Conservative Party and on July 20 and 26, 1983 he circulated and witnessed the disputed petitions. He did not vote in the 1981 or 1982 elections. Pursuant to the provisions of subdivision 2 of section 5-400 of the Election Law, Nugent’s registration was canceled when he moved his residence in 1981 without transferring his registration. Accordingly, when he registered and enrolled in 1983, he was a new voter and his registration and enrollment took effect immediately (Election Law, § 5-300). Thus, he was qualified under the statute to witness designating petitions for the Conservative Party and the challenged petitions are valid.

Finally, petitioner contends that signatures witnessed by Mary Hynes are invalid because she signed the sheets as a witness after the name of Eleanor Fries was crossed out in the body of the witnessing clause and her own name, Mary Hynes, was printed above it. The cross out was not initialed or explained on the sheet. There is no evidence that the alteration was made by anyone other than the subscribing witness or that it resulted in any fraud or confusion and it does not require invalidation of the petitions (see Matter of Waible v Dosberg, 83 AD2d 983, affd 54 NY2d 780).

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

Order affirmed, without costs, in a memorandum.