text:
    The People of the State of New York, Appellant, v Sandra Jackson, Respondent.
    Submitted September 10, 1979;
    decided October 11, 1979
   Motion to dismiss the appeal herein granted and the appeal dismissed upon the ground it does not lie (CPL 460.30, subd 6; see People v Thomas, 44 NY2d 759).


source: Caselaw Access Project

license: Public Domain

text:
    A. Mal Malvin, Appellant, v Marsha Schwartz et al., Respondents, et al., Defendants.
    Argued September 4, 1979;
    decided October 16, 1979

      APPEARANCES OF COUNSEL

      Stanford A. Schwartz for appellant.

      Jon Emanuel for respondents.
   OPINION OF THE COURT

Memorandum.

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

Since the parties had not executed an express stipulation of discontinuance of the action, or entered judgment in accordance with their settlement agreement, the action had not terminated. Thus, the settlement was amenable to enforcement by motion (Teitelbaum Holdings v Gold, 48 NY2d 51). Furthermore, insofar as defendant was relieved from adherence to the letter of the settlement, it cannot be said that there was an abuse of discretion as a matter of law (see, e.g., Barry v Mutual Life Ins. Co., 53 NY 536, 540).

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

Order affirmed.


text:
    In the Matter of Rochester Urban Renewal Agency, Respondent, Relative to Acquiring Title to Real Property for Upper Falls Urban Renewal Project NYR-188 in the City of Rochester. Willsea Works, Appellant.
    Argued September 4, 1979;
    decided October 16, 1979

      APPEARANCES OF COUNSEL

      James M. Hartman, Michael C. Normoyle and Frank S. Hagelberg for appellant.

      Duncan W. O’Dwyer and Robert J. Kalb for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division.

Claimant has created an issue as to value and the extent of its damages by alleging that the property taken by eminent domain was a specialty and therefore was not susceptible of valuation by fair market standards. Since fair market value is presumptively the .correct method for assessing damages in condemnation cases, a condemnee who would have the court apply a different method must bear the burden of demonstrating that the value , of his property cannot reasonably be measured by the fair market value approach (Matter of Penn Yan Urban Renewal Agency v Penn Yan Realty Corp., 57 Misc 2d 1033; see Matter of Rochester Urban Renewal Agency [Patchen Post], 45 NY2d 1, 9; Newburgh Urban Renewal Agency v Williams, 79 Misc 2d 991; cf. Heyert v Orange & Rockland Utilities, 17 NY2d 352, 364). Claimant here has failed to sustain this burden, and, consequently, its request for a higher damages award must be rejected.

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

Order affirmed, with costs, in a memorandum.


author: Chief Judge Cooke Meyer, J.

text:
    Mildred A. McLearn, Appellant, v Cowen & Co. et al., Defendants, and Merrill Lynch, Pierce, Fenner & Smith Incorporated, Respondent.
    Argued September 5, 1979;
    decided October 16, 1979

      APPEARANCES OF COUNSEL

      James D. Burchetta and Robert C. Agee for appellant.

      Roger J. Hawke and Thomas J. Mullaney for respondent.
   OPINION OF THE COURT

Memorandum.

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

As that court held, plaintiff-appellant’s present claim is precluded by the determination adverse to her in the Federal court action. If one accepts the contention now advanced by her that recovery on the theory of breach of common-law fiduciary duties was not pleaded in the Federal action, it could have been. On the other hand, if one accepts the analysis of the pleadings advanced by the dissenter, the common-law cause of action was separately pleaded in the Federal action. In any event it is not disputed that both the Federal statutory claim and the common-law claim arose out of the same series of connected transactions. The disposition of the Federal action on the merits for failure to state a cause of action extinguished all rights plaintiff may have had to remedies against Merrill Lynch with respect to all or any part of the series of connected transactions out of which the Federal action arose. (Matter of Reilly v Reid, 45 NY2d 24; see Restatement, Judgments, 2d [Tent Draft No. 1, 1973], § 61.) This rule applies to extinguish theories of recovery not presented and remedies not demanded in the Federal action (see Restatement, Judgments, 2d [Tent Draft No. 1, 1973], § 61.1).

The only basis on which the present claim would not now be precluded would be that plaintiff-appellant’s present common-law claim could not have been asserted in the Federal action. Although it is conceded that the common-law cause of action could have been considered only under the pendent jurisdiction of the Federal court and that the Federal court could have declined to exercise such jurisdiction, unless it is clear that the Federal court as a matter of discretion did decline or would have declined to exercise that jurisdiction, the State action is barred (see id., § 61.1, Comment e, and Illustration 10). In the. present instance, on the record in the Federal action submitted to us it is not clear that the Federal court did decline or would have declined to exercise its pendent jurisdiction. That issue appears not to have been raised or even considered by the parties or by the court. Plaintiff-appellant made no application for any clarification or limitation with respect to the scope of the dismissal of the Federal action.

Plaintiff-appellant’s original complaint, setting forth 48 counts in 103 paragraphs running to 39 pages had been dismissed with leave to file an amended complaint. Defendants-respondents moved to dismiss the amended complaint (all but 8 of the 103 paragraphs of which were taken verbatim from the original complaint) for failure to allege fraud with sufficient particularity as required by subdivision (b) of rule 9 of the Federal Rules of Civil Procedure (US Code, tit 28). The Federal court granted the motion to dismiss with the statement — "The complaint still fails to set forth the facts and circumstances of the alleged fraud and must be dismissed.” This dismissal was on the merits for failure to state a cause of action.

Following an affirmance of this dismissal on plaintiff-appellant’s appeal to the United States Court of Appeals for the Second Circuit, leave was sought to replead again. The District Court denied this application with the observation — "Inasmuch as plaintiff fully perfected her appeal to the Court of Appeals, and since the Court of Appeals did not remand the action to this court with direction to permit plaintiff to replead, this court has no authority to allow plaintiff leave to serve and file an amended complaint.” Nothing in this record supports the slightest inference that a common-law cause of action was dismissed for refusal of the Federal court to exercise its pendent jurisdiction or that the court would have declined to exercise that jurisdiction. There is thus no basis for failing to give preclusive effect to the disposition in the Federal forum, thereby barring the claim plaintiff-appellant seeks now to prosecute.

Chief Judge Cooke

(dissenting). Plaintiff should not be foreclosed from asserting her State-based claim by the disposition of her action in Federal court. Plaintiff’s Federal complaint alleged the Federal securities laws as the predicate for the District Court’s jurisdiction and contained references to defendant’s breach of common-law fiduciary duties, negligence and unprofessional conduct. The District Court, noting that plaintiff’s complaint alleged violation of the antifraud provisions of the Federal statutes and generally a fraud based on breach of fiduciary duty, dismissed the complaint for failure to plead fraud with sufficient particularity as required by subdivision (b) of rule 9 of the Federal Rules of Civil Procedure. That dismissal operates as an adjudication on the merits (Fed Rules Civ Pro, rule 41, subd [b]).

Although the District Court had the power to consider theories of recovery grounded in State law under the doctrine of pendent jurisdiction, the ambiguity in the opinion and the pleadings do not permit the conclusion that the court did or would have exercised jurisdiction over any State claims that might have been asserted. Indeed, it is not at all clear whether plaintiff asserted a claim grounded in State law or whether the Federal court considered claims other than those grounded in Federal law.

Both the majority and Judge Meyer in dissent note that theories of recovery jurisdictionally assertable in a prior action are precluded in a later suit when it is clear, that the court in the first action would have exercised jurisdiction as a matter of discretion (Restatement, Judgments, 2d [Tent Draft No. 5, 1978], § 61.1). There is no quarrel with this proposition. But by barring plaintiff’s complaint, the majority effectively presumes that the Federal court would have exercised jurisdiction in this case. Such presumption is unwarranted where, as here, the Federal claim is dismissed on the pleadings prior to trial (see Mine Workers v Gibbs, 383 US 715, 726). Indeed, the presumption is to the contrary. An exercise of pendent jurisdiction in such circumstances would be contrary to Federal practice in the Second Circuit (see, e.g., CES Pub. Corp. v St. Regis Pub., 531 F2d 11; Kavit v Stamm & Co., 491 F2d 1176; Iroquois Inds. v Syracuse China Corp., 417 F2d 963, cert den 399 US 909; Altman v Knight, 431 F Supp 309; but see Gem Corrugated Box Corp. v National Kraft Container Corp., 427 F2d 499, 501, n 1) and possibly an abuse of discretion (see Nolan v Meyer, 520 F2d 1276, cert den 423 US 1034; Braunstein v Laventhol & Horwath, 433 F Supp 1077). It must be assumed, therefore, that the Federal court here would have declined to exercise its jurisdiction once it dismissed the Federal claim prior to trial. The procedural ambiguities present in this case do not justify a different conclusion.

The order of the Appellate Division should be reversed, and the order of Supreme Court reinstated without prejudice to motion properly made under CPLR 3211 (subd [a], par 7).

Meyer, J.

(dissenting). I respectfully dissent. In my view the majority fails to follow prior res judicata rulings of this court and misconceives Federal case law and rules relating to pendent jurisdiction.

Res judicata is a policy essential to our jurisprudence both to conserve judicial resources and to prevent the harassment by one party of another that would result were there no rule proscribing relitigation of an issue once fairly decided. But we have been at pains to make clear that in applying the policy courts must take care that a party not be excluded from the day in court to which every litigant is entitled (cf. Gramatan Home Investors Corp. v Lopez, 46 NY2d 481, 485). To that end we have held that a litigant who claims the benefit of a former judgment has the burden of proving that the issue which he urges is precluded was involved in the prior litigation, either by actual determination or by necessary implication (Bronxville Palmer v State of New York, 18 NY2d 560; People ex rel. Village of Chateaugay v Public Serv. Comm., 255 NY 232). Since the Federal court decisions in plaintiff’s prior action are, as the factual analysis below demonstrates and as the majority concedes, at best equivocal with respect to the basis for dismissal of plaintiff’s claim against Merrill Lynch, it was Merrill Lynch’s burden, not plaintiff’s, to establish that plaintiff’s claim against it was dismissed on the merits. Yet the majority holds plaintiff precluded because she "made no application for any clarification or limitation with respect to the scope of the dismissal of the federal action.” To require her rather than Merrill Lynch to seek such clarification is nothing less than a shifting of the burden of proof and constitutes a major departure from the policy we have heretofore uniformly followed.

An understanding of the fallacy in the majority’s pendent jurisdiction reasoning requires analysis of the complaint in the Federal action and of the decisions of the Federal courts with respect to that complaint. The first three paragraphs of the complaint predicate jurisdiction of the court upon the Investment Advisors Act of 1940 and the Securities and Exchange Act of 1934 and venue upon the residence of the parties and the activities of the defendants. The complaint then pleads eight causes of action, only two of which (the third and the eighth) are against Merrill Lynch. Each of the other causes of action (except, of course, the first) opens with a paragraph repeating and realleging prior allegations of the complaint, including the jurisdictional paragraphs, and each, including the first, contains additional allegations specifically referring to the Investment Advisors Act and the Securities Act of 1934. Neither the third nor the eighth refers, expressly or by incorporation, to either of those acts. The allegations of the third and the eighth causes of action set forth the establishment of a customer-broker relationship, reliance by plaintiff upon the judgment and integrity of the Merrill Lynch officials handling her account, and that those officials in various ways acted in an unprofessional, negligent and illegal manner and in "breach of the common law standards of fiduciary responsibility”.

The inference to be drawn from the absence from the third cause of action of any reference to Federal statute and the inclusion of express reference to common-law standards is that plaintiff sought to allege only a common-law and not a Federal statutory cause of action. If that inference is accepted, then clearly the Federal court was without subject matter jurisdiction, for there was no predicate Federal claim against Merrill Lynch to which the common-law claim could be pendent (Hurn v Oursler, 289 US 238, 245-248).

If that inference be rejected and the third cause of action be deemed to allege in the one cause of action both a Federal statutory and a State common-law claim deriving "from a common nucleus of . operative fact” (Mine Workers v Gibbs, 383 US 715, 725), then the Federal court’s dismissal of the complaint for failure to comply with the requirement of subdivision (b) of rule 9 of the Federal Rules of Civil Procedure that "the circumstances constituting fraud * * * be stated with particularity”, because it excised the predicate Federal statutory claim, likewise left the Federal court without subject matter jurisdiction of the pendent claim. That this is so is clear from the Gibbs decision as well as the Restatement Comment and Illustration upon which the majority rely.

In Gibbs the Supreme Court, after quoting from Hurn v Oursler (supra) noted (383 US, at p 724) that: "Had the Court found a jurisdictional bar to reaching the state claim in Hurn, we assume that the doctrine of res judicata would not have been applicable in any subsequent state suit. But the citation of Baltimore S. S. Co. shows that the Court found that the weighty policies of judicial economy and fairness to parties reflected in res judicata doctrine were in themselves strong counsel for the adoption of a rule which would permit federal courts to dispose of the state as well as the federal claims.” It then held that there is power in the Federal courts to hear both Federal and State claims that would be expected to be tried in one judicial proceeding, but recognized (383 US, at p 726) that: "That power need not be exercised in every case in which it is found to exist. It has consistently been recognized that pendent jurisdiction is a doctrine of discretion, not of plaintiffs right. Its justification lies in considerations of judicial economy, convenience and fairness to litigants; if these are not present a federal court should hesitate to exercise jurisdiction over state claims, even though bound to apply state law to them, Erie R. Co. v. Tompkins, 304 U. S. 64. Needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law. Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well. ” (Emphasis supplied.) Not only did it thus mandate dismissal of the State claim on jurisdictional grounds when the Federal claim is dismissed on nonjurisdictional grounds, but it noted (383 US, at p 727) that: "The question of power will ordinarily be resolved on the pleadings.”

The Restatement of Judgments, 2d, correctly interprets Gibbs as not barring a second State action under the circumstances of this case, for it states in Comment e to section 61.1 (Tent Draft No. 5, p 160) that: "A given claim may find support in theories or grounds arising from both state and federal law. When the plaintiff brings an action on the claim in a court, either state or federal, in which there is no jurisdictional obstacle to his advancing both theories or grounds, but he presents only one of them, and judgment is entered with respect to it, he may not maintain a second action in which he tenders the other theory or ground. If however, the court in the ñrst action would clearly not have had jurisdiction to entertain the omitted theory or ground (or, having jurisdiction, would clearly have declined to exercise it as a matter of discretion), then a second action in a competent court presenting the omitted theory or ground should be held not precluded.” (Emphasis supplied.) Illustration 10 to which the Comment refers assumes a Federal antitrust action dismissed after trial, followed by a State antitrust action based on the same facts and concludes that because the Federal court would have had pendent jurisdiction of the State claim the State action would be barred "unless it is clear that the federal court would have declined as a matter of discretion to exercise that jurisdiction (for example, because the federal claim, though substantial, was dismissed in advance of trial)” (emphasis supplied).

Clear from the foregoing is it that dismissal of the Federal claim in advance of trial and without leave to replead, as occurred in the instant case, leaves the Federal court without subject matter jurisdiction of the State claim and bars use of the Federal dismissal as res judicata.

Merrill Lynch argues, however, and the majority apparently agrees, that the dismissal under subdivision (b) of rule 9 was a dismissal of both the Federal and State claims on the merits rather than as a matter of jurisdiction. Aside from the fact that dismissal by the Federal Judge was because the complaint "failed to set forth the facts and circumstances of the fraud alleged” and made no mention of the breach of fiduciary duty, negligence or illegality which was the basis for the "pendent” State claim, it is clear from Gibbs that having dismissed the Federal statutory claim the Judge was without power to consider the State claim and dismiss it on the merits. Nor does subdivision (b) of rule 41 of the Federal Rules change that result, as the majority’s footnote suggests. That rule provides that unless the court in its order specifies otherwise a dismissal, "other than a dismissal for lack of jurisdiction” (emphasis supplied), operates as an adjudication upon the merits. That the Federal Judge failed to specify the ground for dismissal of the pendent State claim may have been because he overlooked it (a possibility suggested by the failure to refer to anything but "fraud”) or, more likely, that he concluded that Gibbs made it sufficiently clear that his dismissal of the Federal claim left him without jurisdiction of the State claim that he did not need to state the obvious. Whatever the reason, however, it is clear that subdivision (b) of rule 41 could not confer jurisdiction on the Federal court that it did not otherwise have. Moreover, the rule is as a matter of Federal law construed in light of the policy behind it as a bar to subsequent action only in "situations in which the defendant must incur the inconvenience of preparing to meet the merits because there is no initial bar to the Court’s reaching them” (Costello v United States, 365 US 265, 286; Saylor v Lindsley, 391 F2d 965, 969). Certainly if the Federal courts would not apply the Federal rule as a bar in the instant situation, we should not do so.

Nor in light of the fact that the Federal court did not, because it could not, consider the State claim on the merits, can the fact that plaintiff was afforded two chances to plead in the Federal court (which, presumably, is what the Appellate Division referred to as "the history of the instant litigation”) serve as the predicate for the Appellate Division’s sua sponte dismissal for failure to state a cause of action, on the basis of motion papers grounded only on res judicata.

In sum, because Merrill Lynch has not sustained its burden of showing that the State claim was in fact considered in the Federal action, because as a matter of Federal law the State claim could not have been dismissed on the merits by the Federal court, and because it was improper to dismiss the present complaint for failure to state a cause of action, I would reverse the order of the Appellate Division and reinstate that of Special Term.

Judges Jasen, Jones, Wachtler and Fuchsberg concur in memorandum; Chief Judge Cooke dissents and votes to reverse in an opinion in which Judge Gabrielli concurs; Judge Meyer dissents and votes to reverse in a separate dissenting opinion.

Order affirmed.

       In Federal court, as distinguished from our State courts, a dismissal is on the merits unless the contrary expressly appears (Fed Rules Civ Pro, rule 41, subd [b], US Code, tit 28). In principle, a dismissal on the merits should be accorded the same consequences for purposes of claim preclusion whether it comes after trial or before trial on a motion for summary judgment or on a motion to dismiss for failure to state a cause of action after leave to replead has been granted as in this case.

      . If Merrill Lynch is correct that the Federal decisions dismissed plaintiffs common-law claims on the merits and not as a matter of jurisdiction, it can vindicate its position (and meet its burden of proof) by applying to the Federal court under section 2283 of title 28 of the United States Code for an order enjoining relitigation of the issue in the State court (Ennis & Co. v Woodmar Realty Co., 542 F2d 45, cert den 429 US 1096; Donelon v New Orleans Term. Co., 474 F2d 1108, cert den 414 US 855; Browning Debenture Holders’ Committee v Dasa Corp., 454 F Supp 88; Heller & Co. v Cox, 379 F Supp 299).

      . Plaintiff’s State complaint alleges only the claim made in the third cause of action of the Federal complaint. Except as referred to in the text, the eighth cause of action has no bearing on the problem presented by this appeal and, therefore, is not further discussed.

      . See, also, the Reporter’s Notes (Tent Draft No. 5, p 179) which state: "If in a given case it is clear that a federal court, applying the criteria elaborated in Gibbs, would not have entertained the state theory, the state action should not be barred.”

      . The quotation is from the decision dismissing the amended complaint, which was affirmed by the Court of Appeals for the Second Circuit.


text:
    Frederick B. Ayer, Appellant, v Sky Club, Inc., Respondent.
    Submitted September 4, 1979;
    decided October 16, 1979
   Motion to dismiss the appeal herein granted and the 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 (Lizza Inds. v Long Is. Light. Co., 36 NY2d 754).


text:
    James E. Gardner et al., Respondents, v Peggy A. Suddaby, Appellant, et al., Defendants.
    Decided October 16, 1979
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no appeal lies as of right from the Appellate Division order of unanimous affirmance (CPLR 5601, subd [a]).


text:
    In the Matter of Amelio P. Marino et al., Respondents, v Allen M. Myers, as a Justice of the Supreme Court of the State of New York, Appellant.
    Submitted October 8, 1979;
    decided October 16, 1979
   Motion to strike appellant’s brief and to dismiss the appeal, etc., denied.


text:
    In the Matter of Miracle Mile Associates, Respondent, v Tanya Yudelson, as Records Access Officer of the City of Rochester, et al., Appellants.
    Submitted August 27, 1979;
    decided October 16, 1979
   Appeal taken as of right marked "withdrawn” in view of statement in the Corporation Counsel’s letter dated September 7, 1979, that the city has decided not to pursue the appeal. Motion by petitioner to dismiss appeal taken as of right dismissed as academic. Motion by petitioner for leave to appeal denied.


text:
    In the Matter of H. James Peck, Respondent, v Board of Education of the City of Buffalo et al., Appellants.
    Submitted September 24, 1979;
    decided October 16, 1979


text:
    City of New York et al., Appellants, v Thomas Cole et al., Respondents.
    Argued September 12, 1979;
    decided October 18, 1979

      APPEARANCES OF COUNSEL

      Allen G. Schwartz, Corporation Counsel (Carolyn E. Demarest and L. Kevin Sheridan of counsél), for appellants.

      Harry Starr and Ann Thacher Anderson for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, the petition to annul the determination of the State Human Rights Appeal Board granted and the cross petition for enforcement dismissed.

Respondent State Division of Human Rights erred as a matter of law in determining that petitioner New York City Department of Social Services violated the Human Rights Law by unlawfully discriminating against complainant Thomas Cole, a special officer with the department, because of his disability. The Human Rights Law makes it an unlawful discriminatory practice to discriminate against an individual in the terms, conditions or privileges of employment because of a disability (Executive Law, § 296, subd 1, par [a]). At the time of petitioner’s alleged discriminatory act, the term "disability” was limited to "conditions which are unrelated to the ability to engage in the activities involved in the job or occupation” sought (Executive Law, § 292, subd 21).

As a special officer, complainant’s duties sometimes entailed the use of physical force. Complainant had been injured while on duty and requested that petitioner assign him to light duties during his disability. This request was denied, although light duty assignments were made available to other officers who were not disabled. The Division of Human Rights found that as a result of the injury, complainant was "disabled and could not perform his regular duties as a Special Officer”. That inability to meet the needs of the department should have ended the inquiry, for complainant’s disability was within the express limitation of the statutory definition (see Matter of State Div. of Human Rights v Averill Park Cent. School Dist., 46 NY2d 950; but see L 1979, ch 594).

That complainant’s disability did not prevent him from performing light duties or that other officers may have been given limited duty assignments does not bring him within the protection of the statute. Complainant’s position was that of special officer, which involved activities he was unable to perform. The statute as drafted at the time this controversy arose simply did not proscribe as unlawfully discriminatory an employer’s refusal to accept an employee who is unable to discharge the obligation of the occupation in which he is engaged. The division therefore was without authority when it went beyond the statutory mandate and predicated its decision of unlawful discrimination on a job-related disability (Matter of State Div. of Human Rights v Averill Park Cent. School Dist., supra; see Finger Lakes Racing Assn. v New York State Racing & Wagering Bd., 45 NY2d 471; Matter of Bates v Toia, 45 NY2d 460).

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

Order reversed, etc.


text:
    Kirkwall Corp., Respondent, v Leonard Sessa, Appellant.
    Argued September 5, 1979;
    decided October 18, 1979

      APPEARANCES OF COUNSEL

      Martin S. Rothman and Arnold Gussin for appellant.

      Gerald D. Broder and Thomas F. Farley for respondent.
   OPINION OF THE COURT

Memorandum.

The order appealed from should be reversed, with costs, and the judgment of Supreme Court, New York County, should be reinstated. By written contract, plaintiff agreed to purchase the property in question subject to all zoning regulations and ordinances. Several months prior to the date the parties entered into the contract of sale, a zoning ordinance was adopted by the Village of Lake Success limiting vehicular access to the area in which the property is located. Having agreed to take subject to such extant ordinances, plaintiff may not now argue that defendant’s promise to provide insurable title was in some way violated solely because of the title insurance company’s refusal to insure that very right of ingress and egress which was limited by the ordinance.

In light of our resolution of this issue, we need not and accordingly do not reach the other issues argued by the parties. We note, however, that nothing in the record indicates that the term "vehicular access” is necessarily related to the placement of curb cuts.

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

Order reversed, etc.


text:
    Elissa Lord, Appellant, v State of New York, Respondent.
    (Claim No. 52433.)
    Argued September 13, 1979;
    decided October 18, 1979

      APPEARANCES OF COUNSEL

      Bernard Gartlir, Marvin M. Shapiro and David L. Birch for appellant.

      Robert Abrams, Attorney-General (J. Lawson Brown, Shirley Adelson Siegel and Jeremiah Jochnowitz of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

We reject appellant’s contention that the Court of Claims’ explanation of the rationale for its determination of valuation was so insufficient as to constitute error of law. While a more detailed description of the manner in which a court reaches its determination is preferred, we cannot say that it was error as a matter of law for the majority at the Appellate Division to conclude that the Court of Claims decision considered in relation to the record was adequate for the purpose of its appellate review involving, as it did, consideration of largely factual determinations. We note, however, that we continue to subscribe to the rule that in an appropriation case or a condemnation proceeding the trial court should make its factual findings and underlying mathematical calculations as explicit as possible (cf. Matter of County of Suffolk v Firester, 37 NY2d 649).

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

Order affirmed.


text:
    Sally Barone, Respondent, v Joseph Barone, Respondent. (Doris L. Sassower, Appellant.)
    Decided October 18, 1979
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no appeal lies (NY Const, art VI, § 3, subd b; CPLR 5601).


text:
    In the Matter of Susan Brenner, Respondent, v William A. Brenner, Appellant.
    Submitted August 27, 1979;
    decided October 18, 1979
   Motion dismissed insofar as it seeks leave to appeal from so much of the order of the Appellate Division dated May 26, 1977 as affirmed an order of Family Court, New York County, denying a motion to vacate a prior order dated April 14, 1976 upon the ground that that portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.

On the court’s own motion, appeal taken as of right from unanimous order of the Appellate Division dated May 26, 1977 dismissed, without costs, upon the ground it does not lie as of right; appeal taken as of right from order denying application for a stay dismissed, without costs, upon the ground it does not lie. (CPLR 5601.)

Motion for a stay, etc., dismissed as academic.


text:
    Moses Polakoff, Appellant, v Harcourt Brace Jovanovich, Inc., Respondent, et al., Defendant.
    Submitted August 27, 1979;
    decided October 18, 1979
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, upon the grounds that (a) plaintiff, having stipulated to reduce the verdict, is not aggrieved by that portion of the order of the Appellate Division dated February 15, 1979 which affirmed an order granting a new trial unless plaintiff so stipulated (see Wietecki v Marczan, 38 NY2d 896; Dudley v Perkins, 235 NY 448), and (b) the remaining portions of the February 15, 1979 order of the Appellate Division, and that court’s order dated April 3, 1979 denying reargument or leave to appeal, do not finally determine the action within the meaning of the Constitution.


text:
    Jerry Romantini, Appellant, v Village of East Hills, Respondent.
    Submitted October 15, 1979;
    decided October 18, 1979
   Motion to dismiss the appeal herein granted and the appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved (CPLR 5601, subd [b], par 1).


text:
    In the Matter of Charles A. Haynie, Respondent, v Edward J. Mahoney et al., Constituting the Board of Elections of Erie County, Respondents, and William L. Marcy, Jr., Appellant.
    Argued October 18, 1979;
    decided October 19, 1979

      APPEARANCES OF COUNSEL

      Joseph F. Biondolillo for appellant.

      Timothy A. McCarthy for petitioner-respondent.

      Thaddeus Szymanski, County Attorney (Alan Gerstman of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

The Election Law mandates, in clear and unequivocal terms, that "[a] write-in ballot must be cast in its appropriate place on the machine, or it shall be void and not counted.” (Election Law, § 8-308, subd 4.) Here, it was error for Supreme Court to validate a write-in ballot for the office of Common Council when such ballot was cast in the column designated for the office of County Executive. The plain language of the statute itself proscribes such result. It is noted that in Matter of Pauly v Mahoney (49 AD2d 1014), relied on below, leave to appeal was denied by this court (37 NY2d 711). Our denial of leave to appeal has no precedential effect. (See Matter of Marchant v Mead-Morrison Mfg. Co., 252 NY 284, 297-298 [Cardozo, Ch. J.].)

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

Order reversed, without costs, and the petition dismissed in a memorandum.


text:
    In the Matter of Anthony J. Sciolino, Respondent, v V. James Chiavaroli et al., Constituting the Board of Elections of Monroe County, Appellants, and Robert C. Byrnes, Respondent.
    Argued October 18, 1979;
    decided October 19, 1979

      APPEARANCES OF COUNSEL

      John D. Doyle, County Attorney (Nira T. Kermisch of counsel), for appellants.

      Anthony J. Sciolino, respondent pro se.

   OPINION OF THE COURT

Order reversed, without costs, and the petition dismissed (see Matter of Haynie v Mahoney, 48 NY2d 718, decided herewith).

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


text:
    In the Matter of John C. Sutcliffe et al., Appellants, v Walter Jablonski et al., Constituting the Board of Elections of the County of Dutchess, et al., Respondents.
    Argued October 17, 1979;
    decided October 19, 1979

      APPEARANCES OF COUNSEL

      Thomas P. Halley for appellants.

      Stephen J. Wing, County Attorney (Donald Cappillino of counsel), for Board of Elections, respondent.

      Ann Brady Rupsis, respondent pro se.

   OPINION OF THE COURT

Order affirmed, without costs, for reasons stated in the memorandum at the Appellate Division.

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


text:
    In the Matter of Albert J. Corbeil, Respondent, v Ronald J. Canestrari, Individually and as Mayor of the City of Cohoes, Appellant, et al., Respondents.
    Argued September 11, 1979;
    decided October 23, 1979

      APPEARANCES OF COUNSEL

      James D. Harrington, Corporation Counsel (Sarah van Leer and Jean Mary Reinhardt of counsel), for appellant.

      Michael Emminger for Albert J. Corbeil, respondent.
   OPINION OF THE COURT

Memorandum.

The judgment of Supreme Court, Albany County, appealed from and the prior order of the Appellate Division brought up for our review should be reversed, with costs, and the petition dismissed.

We reject petitioner’s contention that he was entitled to a hearing before being "removed” from his position as a Housing Counselor for the Cohoes Neighborhood Improvement Program. As correctly found by the Appellate Division, petitioner was an "appointive officer” and not an "employee” of the City of Cohoes. (See Matter of Burke v Van Buskirk, 47 AD2d 965; City of Cohoes Ordinance No. 152, § 2.) While section 62 of the Cohoes City Charter provides, in essence, that the Mayor may remove an appointed officer only after a hearing, this section is prefaced by the qualifying language "Except as otherwise provided in this act”.

Section 10 of the Cohoes City Charter states in relevant part that "[wjhere the term of office of an appointive officer is not specifically fixed by statute it shall be deemed to continue only during the pleasure of the officer, officers, board or body authorized to make the appointment. The appointive officers now in office shall continue as such officers until their successors shall be appointed and shall qualify; but for the purpose of appointing such successors their respective office shall be deemed to be vacant.” Thus, in accordance with the express terms of this section, petitioner’s term expired by operation of law when the Mayor-elect assumed office and appointed petitioner’s successor. Accordingly, the provisions of section 62 of the Cohoes City Charter have no application to this case.

One further point requires discussion. An examination of the petition and the supporting legal memoranda reveals that petitioner predicated his legal claim only upon two grounds, to wit: that he was dismissed from his position without a hearing as provided in the city charter, and that the Mayor-elect’s policy in not allowing both a husband and wife to be employed simultaneously by the city was arbitrary and capricious. At no time did petitioner claim that the failure to reappoint him was motivated by partisan politics, and the record is devoid of any evidence to support this theory. Therefore, there was no basis for the courts below to consider this question.

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

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


text:
    The People of the State of New York, Respondent, v Canio Pisani, Also Known as Dan Pisani, Walter Hebert and Angel Lewis Fernandez, Appellants.
    Argued September 12, 1979;
    decided October 23, 1979

      APPEARANCES OF COUNSEL

      B. Anthony Morosco for appellants.

      David S. Ritter•, District Attorney (Michael Schwartz of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

After a jury trial at which overwhelming evidence of defendants’ participation in the crimes charged was introduced by the prosecution, defendants were convicted of burglary in the second degree, unlawful imprisonment in the second degree, and assault in the third degree. On this appeal, defendants contend that the evidence adduced at trial was legally insufficient to sustain their convictions of burglary in the second degree inasmuch as there was no proof offered to establish that the defendants committed the crime at nighttime as charged in the indictment. (See Penal Law, § 140.25, subd 2.) Specifically, defendants claim that since no evidence was offered to establish the exact time of sunset on the day of the incident, the jury had "no basis or frame of reference with which to apply the [court’s] * * * instruction with respect to the definition of Burglary in the Second Degree and the meaning of nighttime.”

The term "night” is defined by statute as "the period between thirty minutes after sunset and thirty minutes before sunrise” (Penal Law, § 140.00, subd 4), and the Trial Judge so charged the jury. The record discloses that sunset on January 19, 1976 — the day of the incident — in the City of Middleton occurred at 5:02 p.m., although the jury was not informed of this fact.

While it certainly would have been the better practice for the prosecutor to have established the time of sunset (or the court, having taken judicial notice thereof, to have so informed the jury) in order to provide the jurors with a point of reference from which to judge the proof, we cannot say, in the context of the particular facts of this case, that the failure to do so requires a new trial.

The record reveals that the trial court charged the jury that the defendants could be convicted of burglary in the second degree only if the jurors found, as an element of the crime, that the burglary was committed at night. A careful review of the record discloses that all witnesses, without exception, testified that the criminal conduct of defendants commenced no sooner than 6:00 p.m. No evidence to the contrary exists and, indeed, no inconsistencies in the testimony establishing the time of the incident can be discerned. Given such proof, and cognizant of the fact that jurors — as members of the community — are presumed to possess knowledge of the approximate time of sunset in that vicinity (see People v Wozniak, 167 Cal App 2d 448, 451), we believe that the jurors must have found, in accordance with the Judge’s instructions, that the burglary occurred at nighttime. Thus, the evidence was legally sufficient to sustain defendants’ burglary convictions. (See People v McCray, 61 AD2d 860.)

Defendants’ remaining contentions have been considered and found to be without merit.

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

Order affirmed in a memorandum.


author: Wachtler, J. Fuchsberg, J.

text:
    State Division of Human Rights, on Complaint of Charles W. Ghee, Appellant, v County of Monroe et al., Respondents.
    Argued September 12, 1979;
    decided October 23, 1979

      APPEARANCES OF COUNSEL

      Sara Toll East and Ann Thacher Anderson for appellant.

      John D. Doyle, County Attorney (Joseph C. Pilato of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs (Matter of State Div. of Human Rights v Averill Park Cent. School Dist., 46 NY2d 950). Chapter 594 of the Laws of 1979, amending subdivision 21 of section 292 of the Executive Law, was effective July 10, 1979. There is no basis for any contention, nor does the State Division contend, that the amendment should be applied retroactively to the present proceeding.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli and Jones. Judge Wachtler dissents and votes to reverse in the following opinion in which Judge Meyer concurs. Judge Fuchsberg dissents and votes to reverse in a separate dissenting opinion.

Wachtler, J.

(dissenting). The order of the Appellate Division should be reversed. There is substantial evidence in the record to support the determination of the State Human Rights Division that the county discriminated against complainant because of his physical disability. Indeed the uncontradicted evidence shows that this is precisely the type of discriminatory practice the Human Rights Law was designed to prohibit.

Complainant is a Vietnam War veteran who was wounded in combat. He was shot in both legs and, as a result has lost some mobility in his right knee. After being discharged from the service he applied for employment with Monroe County. He informed the county of his disability and on the basis of this and the other information in his application he was hired as a "maintenance mechanic”, a job involving general maintenance duties.

On the job he performed all assigned tasks satisfactorily. Nevertheless he was summarily fired when his supervisors received the results of his employment physical which indicated that he was unable to assume a full squatting position.

The county admits that the complainant was fired because of his disability. It denies however that this was discriminatory and claims instead that the disability "relates” to his employment. The argument is entirely abstract. There is no factual support based on testing or experience to prove or even indicate that complainant’s disability would hamper his capacity to perform his job. The disability did not interfere with the performance of his duties during the brief period of his employment. There is no showing that it will interfere in the future. Neither is there any contention that the complainant’s disability will pose a safety hazard for himself or others (Matter of State Div. of Human Rights v Averill Park Cent. School Dist., 46 NY2d 950). Apparently the county simply wants to avoid any potential inconvenience.

One of the primary purposes of this State’s Human Rights Law is to deny employers the right to refuse to employ individuals who because of their race, sex, age or physical disability, are thought, by some, to be less capable than other workers. The statute puts the employer to his proof by requiring him to show that the particular individual is actually not able to adequately perform the job he seeks. Here, however, assumption has, once again, taken the place of proof and an employee who was openly fired due to his physical disability is denied relief because the county apparently fears, but cannot prove, that he might not be able to perform as well as those without any handicap.

This is unfortunate because it deprives the handicapped of the minimal protection from discrimination, based on unreasonable fears, which the Legislature so obviously intended to provide. It is particularly unfair in this case since the disability which legally, but not logically, serves to disqualify the complainant from holding this job with his county government, is the result of wounds received in the service of his country.

Fuchsberg, J.

(dissenting). As the companion dissent accurately indicates, there is substantial evidence to support the Human Rights Division’s determination; indeed, the evidence to do so is aplenty. But that was also true of the evidence in Matter of State Div. of Human Rights v Averill Park Cent. School Dist. (see my dissent at 46 NY2d 950, 951). Nevertheless, there the majority chose, as in the present case it now chooses again, to hold as a matter of law that subdivision 21 of section 292 of the Human Rights Law, in the unamended form in which it existed when each of these cases arose, permits support of an employer’s discharge of an employee simply because the latter suffers from a handicap that in theory might affect his ability to perform his job, even when in actuality it does not do so.

Therefore, if the two cases are to be distinguished so as to bring a more favorable result in the present one, it will take something more than the fact that the employee in Averill was a school bus driver while here he is a maintenance man. Or that proof of the capacity of one of them to perform his job was more overwhelming than that of the other. Nor, in this light, may the makeweight allusion to public safety in the Appellate Division’s Averill decision (59 AD2d 449, 452), on which our court affirmed, serve that purpose.

However, the Averill case need not be determinative of the one before us now, since legislative developments that followed in effect call upon the court to look at the statute anew. For, apparently surprised, and dismayed, by the Averill decision, the Legislature acted with despatch to clarify the language of the Human Rights Law so as to remove any possibility that its intent could be misconstrued. In doing so, it left no doubt that the court’s interpretation had been in conflict with the original intendment of the drafters of the statute (L 1979, ch 594; see Averill, 46 NY2d 950, 955-956, supra). As the transcript of the recent Assembly colloquy on the bill reveals, the statute was always calculated to provide that the question of whether a disability is "related” to a job (or, in the even more explicit language in which the original sponsors of the legislation have now taken the pains to cast their unaltered intent, whether a disability actually "prevent[s] the complainant from performing in a reasonable manner”) is not to be viewed abstractly by a court as a matter of law. Rather, it is to be decided in accordance with substantial evidence standards by the Human Rights Division, the agency deemed most qualified to root out discrimination (see, e.g., Assembly Debate on A8151, MOL No. 873 [May 30, 1979]). All this indicates too that there is no issue of retroactivity since, no matter how denominated, the revision was not, because it did not need to be, substantive in order to achieve the expressed limited purpose of the revisers. Consequently, it hardly behooves us to ignore the sharpened perception of the statute’s true meaning.

And, lest there be any misapprehension, stare decisis does not stand in the way of correction "where it can be shown that the law has been misunderstood or misapplied” (Rumsey v New York & New England R. R. Co., 133 NY 79, 85, cited in Matter of Eckart, 39 NY2d 493, 499 [Wachtler, J.]), especially since the Averill decision is so recent that it is still in its legal cradle (People v Hobson, 39 NY2d 479, 488).

The door to consideration of the facts thus unlocked, their fuller recitation is now in order:

Complainant Charles Ghee is an honorably discharged Vietnam veteran who bears physical scars of his participation in that conflict. As a result of wounds to both legs, Ghee’s right thigh is scarred and shortened by one and a half inches, and he has limited flexibility in his right leg. However, he had adjusted so well to these impairments that he was able to hold down jobs as a heavy laborer in a factory and as a carpenter, doing much work outdoors.

The litigation before us had its genesis in an employment application complainant filed with the County of Monroe. After an interview with an administrator of the County’s Comprehensive Employment Training Act Program at which his disability was well aired, he was recommended for a position classified as Maintenance Mechanic II. The administrator chose that position by matching the applicant with the job specification.

In due course, the favorable employment recommendation ripened into approval and then appointment to the position, in which Ghee was assigned to work with the Monroe County Bureau of Traffic Control and Engineering. His duties included outdoor work during which he would be called upon to hang traffic control signs, lift poles, bolt signs to poles and lift jackhammers weighing over 25 pounds. During much of this time the temperatures were below freezing and a good deal of snow was on the ground. All the evidence points to complainant’s satisfactory completion of all his duties. Specifically, the record is barren of any indication that his performance was deficient in any respect; indeed, his vocational conduct was so normal that his supervisor and fellow employees had not even become aware of the physical residua of his military service.

Several days after he had started work, Ghee underwent a routine physical examination by a county physician. Upon inquiring about the leg scars, the doctor ascertained that complainant was unable to sit on his heels in a full squat. The doctor did not ask about or test for the ability to lift objects or perform any of the other tasks that were part of his job. In due course, the doctor completed a report form that recommended that Ghee “should avoid” kneeling, lifting, sudden temperature changes and working outdoors. The report did not assert an inability to do so. But, without more, upon his superiors’ receipt of this report, complainant was relieved of his job.

At the brief hearing held after Ghee filed a complaint with the State Division of Human Rights, the only evidence the county produced as to the relationship between Ghee’s disability and his job was the doctor’s report and the official job description. No medical expert was called to testify that the impairment did in fact prevent the complainant from carrying out the tasks assigned him fully; or that his shortened leg was any less sturdy than the other; or that there was any consequent increase in the likelihood that he would incur injury for which the county might be liable; or that his medical rehabilitation, in which a disabled person is taught to develop and use otherwise neglected bodily motion and powers (Kessler, Accidental Injuries, Vocational Rehabilitation, pp 740-742), had not compensated completely for any he may have lost. To boot, no person familiar with the Maintenance Mechanic II position testified that assignments were likely to be encountered that were beyond the abilities of one with limited flexibility in one leg. In short no one — no supervisor and no fellow worker and no expert — testified that his work performance was anything but perfect. Based on this record, the hearing examiner could hardly have found otherwise than that “[c]omplainant’s condition does not render him unfit for the * * * position [of Maintenance Mechanic II]”. The Human Rights Appeal Board affirmed.

From all this I conclude that, both on the law and on the facts, today’s decision seriously and, as I have respectfully suggested, erroneously undercuts the restraint which until recently characterized our approach to the review of Human Rights Division and Human Rights Appeal Board determinations in the sensitive,. highly specialized and still far from fully tracked area of manifest public concern committed to their trust (see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 183-184; State Div. of Human Rights v Kilian Mfg. Corp., 35 NY2d 201, 209; Matter of Holland v Edwards, 307 NY 38, 45). To this I cannot assent.

Order affirmed, etc.


text:
    The People of the State of New York, Appellant, v Luis De Jesus, Respondent.
    Argued October 9, 1979;
    decided October 23, 1979
   Appeal dismissed upon the ground that the determination to reverse was not made on the law alone and therefore there is no jurisdiction to consider the merits (People v Johnson, 47 NY2d 124; People v Williams, 31 NY2d 151).


text:
    John Peri, Appellant, v State of New York, Respondent.
    (Claim No. 59733.)
    Submitted September 14, 1979;
    decided October 25, 1979

      APPEARANCES OF COUNSEL

      John Peri, appellant pro se.

      Robert Abrams, Attorney-General (Shirley Adelson Siegel and Peter J. Dooley of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (66 AD2d 949).

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


text:
    Ronconi Data Services, Inc., et al., Respondents, v Travelers Indemnity Co., Appellant.
    Argued September 14, 1979;
    decided October 25, 1979

      APPEARANCES OF COUNSEL

      Thomas E. Paterson for appellant.

      Asher Marcus, Peter James Johnson and Donald Lorelli for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (67 AD2d 703).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Wachtler, Fuchsberg and Meyer. Taking no part: Judge Jones.


text:
    Arthur M. Epstein, Appellant, v Kosin Sirivejkul et al., Defendants, and Charles E. Brient, Respondent.
    Argued September 14, 1979;
    decided October 25, 1979

      APPEARANCES OF COUNSEL

      Jeffrey Kaplan for appellant.

      Joel R. Appelbaum for respondent.
   OPINION OF THE COURT

Memorandum.

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

In granting the motion to dismiss on the ground of forum non conveniens, the Appellate Division did not abuse its discretion as a matter of law or in exercising that discretion fail to take into account all the various factors entitled to consideration (Irrigation & Ind. Dev. Corp. v Indag S. A., 37 NY2d 522, 525).

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

Order affirmed.


text:
    In the Matter of Roberta Broadway, Appellant, v J. Henry Smith, as Commissioner of the New York City Department of Social Services, et al., Respondents. In the Matter of Mary St. Paul, Appellant, v J. Henry Smith, as Commissioner of the New York City Department of Social Services, et al., Respondents. In the Matter of Carmen Lazarini, Appellant, v J. Henry Smith, as Commissioner of the New York City Department of Social Services, et al., Respondents.
    Argued September 14, 1979;
    decided October 25, 1979

      APPEARANCES OF COUNSEL

      Gretchen L. Sprague and John C. Gray, Jr., for appellants.

      Robert Abrams, Attorney-General (Maryellen Weinberg and Herbert J. Wallenstein of counsel), for Philip L. Toia, as Commissioner of the New York State Department of Social Services, respondent.
   OPINION OF THE COURT

Order affirmed, with costs (see Matter of Lumpkin v Department of Social Servs., 45 NY2d 351).

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


text:
    In the Matter of Armil Realty Corporation et al., Respondents, v Board of Estimate of the City of New York et al., Appellants, and Board of Standards and Appeals of the City of New York, Respondent.
    Argued October 10, 1979;
    decided October 25, 1979

      APPEARANCES OF COUNSEL

      Allen G. Schwartz, Corporation Counsel (Angelo Aiosa, L. Kevin Sheridan and Leonard Olarsch of counsel), for appellants.

      Leonard F. Rothkrug for petitioners-respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (66 AD2d 888) (see, also, Matter of Highpoint Enterprises v Board of Estimate of City of N. Y., 47 NY2d 935).

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


text:
    In the Matter of Trina Marie H. (Anonymous), a Child Alleged to be Abused. Cindy L. (Anonymous), Appellant.
    Argued September 14, 1979;
    decided October 25, 1979

      APPEARANCES OF COUNSEL

      Joseph A. Shifflett and Nathaniel A. Barrell for appellant.
    Respondent precluded.
   OPINION OF THE COURT

Memorandum.

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

We cannot say as a matter of law that the evidence was insufficient to support the Family Court’s adjudication of neglect (Family Ct Act, § 1012, subd [f]). In particular, the mother’s mental retardation, while not a per se basis for a finding of neglect, adds to the legitimate concern that her toleration of her present husband’s beating of the infant child and her own lack of proper care, as demonstrated by incidents in which she physically manhandled the child and repeatedly left her at home unattended, will not readily yield to reformation. We therefore cannot say that the Family Court abused its discretion in issuing the limited order of removal.

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

Order affirmed.


text:
    The People of the State of New York, Respondent, v Jose Perez, Appellant.
    Argued September 4, 1979;
    decided October 25, 1979

      APPEARANCES OF COUNSEL

      Bernard H. Udell for appellant.

      Eugené Gold, District Attorney (Jay M. Cohen of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. Though we have considered all of the points raised by defendant we do not find sufficient merit in any of them other than whether the confidential informant should have been produced by the People to require discussion.

The informant, Avis Burns, was known to defendant for more than a year prior to trial. Though the Assistant District Attorney in charge of the matter during the early stages told defendant’s attorney that the People intended to call Ms. Burns as a witness, defendant’s attorney learned early in the trial that the assistant then in charge did not intend to call her. Furthermore, defendant, present on the first day of the trial, did not appear on the second day and was not thereafter present as the trial proceeded, nor were his whereabouts known.

To be weighed by the Trial Judge in determining whether to order production of a confidential informer is whether the demand is a trial strategem only or is, indeed, for the purpose of putting before the jury testimony that will be relevant and helpful to the defense (People v Jenkins, 41 NY2d 307; United States v Turbide, 558 F2d 1053; see People v Goggins, 34 NY2d 163). Here defendant’s áttorney’s request for production was not made until shortly before the close of the People’s case. The timing of the request, considered in the light of defendant’s absence from the trial, is suggestive more of a ploy than a bona fide demand.

Moreover, defendant’s attorney’s demand was not phrased in terms of the relevant exculpatory testimony he expected Ms. Burns to give, but rather indicated only that he wanted to interview her to determine whether she should be called. The trial testimony showed that she was involved in two transactions. The first took place on December 18, 1973 and was a $250 cocaine sale in her apartment. She introduced defendant and the undercover officer and then went into an adjoining room, from which she could see defendant and the undercover officer from a distance. The second took place on January 22, 1974 where Ms. Burns was employed, but the sale itself occurred in the men’s room, wholly outside her presence, and all that occurred in her presence was that defendant placed a pink bag behind her purse which was sitting on the bar. Defendant argues also that her testimony was relevant to identification as well as to her own credibility, she having strong motive to falsify because she had been arrested on a narcotics violation and was under threat of a life sentence.

We agree with the Trial Judge that materiality and relevance sufficient to require production of the informant had not been shown. While defendant now urges that Ms. Burns could have testified as to the first sale concerning whether he knew what the content of the package he delivered to the undercover officer was, no such contention was presented to the trial court. In all other respects the role of Ms. Burns in the two sale transactions was minor and her "testimony was hardly essential to a fair trial” (United States v Turbide, supra, at p 1061). The possible sentences which could have been imposed had Ms. Burns not co-operated were fully explored in the testimony of Officer Lopez, who arrested her, and were reviewed in the Judge’s charge to the jury. Finally, on this record there cannot be said to have been any real issue as to identification.

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

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

Order affirmed in a memorandum.


text:
    In the Matter of Norman E. Joslin, as Executor of Madeline H. Noe, Deceased, Appellant, v William J. Regan, as Surrogate of Erie County, et al., Respondents.
    Argued September 12, 1979;
    decided October 25, 1979

      APPEARANCES OF COUNSEL

      Norman E. Joslin, appellant pro se.

      Robert Abrams, Attorney-General (Michael F. Colligan, Shirley Adelson Siegel and William J. Kogan of counsel), for respondents.

      Allan R. Lipman for Erie County Bar Association, amicus curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, without costs. We agree that the charges established by SCPA 2402 constitute fees, not a tax, and that they have not been shown to be without rational basis.

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

Order affirmed.


text:
    In the Matter of Wheel Chair Home, Inc., Appellant, v Fred J. Buscaglia, as Erie County Commissioner of Social Services, et al., Respondents.
    Argued September 12, 1979;
    decided October 25, 1979

      APPEARANCES OF COUNSEL

      Norman E. Joslin and Richard H. Murphy for appellants.

      Robert Abrams, Attorney-General (W. Alexander Melbardis, Shirley Adelson Siegel and Alan W. Rubenstein of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, without costs. Since the language of the contracts between petitioner and its residents Webster, Race and Anderson, and the testimony of Miss Anderson, made clear the home’s obligation to provide for each a home and care for life, the Commissioner of Social Services’ treatment of those contracts as life care contracts was neither arbitrary nor erroneous.

That the contracts obligated the residents in question to apply for, or allow the home to make application for, old age assistance and pay over to the home any sums received did not lessen the home’s obligations to the residents nor did it require the commissioner, who is governed not by the contract between the residents and the home but by statute and regulations, to award full Medicaid benefits for the residents.

Since petitioner has not shown that the commissioner erred or acted arbitrarily in treating the life care contracts as a resource or in limiting Medicaid reimbursement to each resident’s pro rata share of petitioner’s operating loss, the order of the Appellate Division should be affirmed.

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

Order affirmed.


text:
    Alray International Equipment, Inc., Appellant, v Aetna Casualty & Surety Co., Respondent, et al., Defendants.
    Argued September 14, 1979;
    decided October 25, 1979

      APPEARANCES OF COUNSEL

      Marc J. Lifset and Harvey M. Lifset for appellant.

      James J. Carter and Calvin J. Livingston for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (65 AD2d 651).

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


text:
    In the Matter of the Proceeding Pursuant to Section 22 of Article VI of the Constitution of the State of New York in Relation to Robert W. Jordan, Appellant, a Justice of the Town Court, Town of Esopus, Third Judicial Department. State Commission on Judicial Conduct, Respondent.
    Decided October 25, 1979
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no appeal lies as of right from a determination by the Court on the Judiciary. [See 47 NY2d xxx.]


text:
    National Bank of North America, Respondent, v International Brotherhood of Electrical Workers Local No. 3, Pension and Vacation Funds, et al., Appellants.
    Submitted September 24, 1979;
    decided October 25, 1979
   Motion to dismiss the appeal herein granted and the appeal dismissed for mootness, with costs and $20 costs of motion.


text:
    The People of the State of New York ex rel. Larry Addison, Appellant, v Harold J. Smith, as Superintendent of Attica Correctional Facility, Respondent.
    Submitted August 20, 1979;
    decided October 25, 1979
   Motion to dismiss the appeal herein granted and the appeal dismissed, without costs, for mootness.


text:
    The People of the State of New York ex rel. John Wallace, Appellant, v State of New York et al., Respondents.
    Submitted October 8, 1979;
    decided October 25, 1979
   Motion for a stay and for release on bail pending appeal denied.


text:
    Pioneer Village Development Corporation, Appellant, v XAR Corporation, Respondent.
    Submitted September 17, 1979;
    decided October 25, 1979
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that the prior application for permission to appeal, made to the Appellate Division, was untimely (CPLR 5513, subd [c]; cf. CPLR 5514, subd [a]; Cohen and Karger, Powers of the New York Court of Appeals, § 101, p 429; see, e.g., Schwartz v National Computer Corp., 38 NY2d 800).


text:
    Ronald Rorie et al., Appellants, v Woodmere Academy, Respondent.
    Submitted September 10, 1979;
    decided October 25, 1979
   Permission to withdraw motion to dismiss appeal granted.

On the court’s own motion: defendant’s appeal pursuant to CPLR 5601 (subd [d]) dismissed, without costs, upon the ground that defendant is not an aggrieved party (see CPLR 5511); plaintiff’s cross appeal dismissed, without costs, upon the ground that plaintiffs have an appeal pending in the Appellate Division from the judgment here sought to be appealed. (See Parker v Rogerson, 35 NY2d 751.)


text:
    Leonard Segal et al., Respondents, v Roberta Kamlet, Appellant.
    Submitted October 19, 1979;
    decided October 25, 1979
   Motion for interim stay, pending determination of motion for leave to appeal, denied.


text:
    Lawrence Ruff, an Infant, by Frederick H. Ruff, Jr., His Father and Natural Guardian, et al., Respondents, v Louise Snyder et al., Appellants.
    Submitted October 12, 1979;
    decided November 13, 1979

      APPEARANCES OF COUNSEL

      Roger J. Cusick for appellants.

      James M. Woolsey, Jr., for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, for the reasons stated in the dissenting memorandum by Mr. Justice Paul T. Kane.

We would note that at the time of this trial, proof of freedom from contributory negligence was a necessary element of the infant plaintiff’s case. Even if there were adequate evidence of the plaintiff’s amnesia, permitting a lower degree of proof of this element (Schechter v Klanfer, 28 NY2d 228), no request was made for this charge, nor was any objection made to the charge that the plaintiff had the standard burden. The unexcepted to charge became the law of the case (Olsen v Chase Manhattan Bank, 9 NY2d 829).

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

Order reversed, with costs, and the complaint dismissed in a memorandum.


text:
    Blasius Industries, Inc., Respondent, v North American Watch Corp., Appellant.
    Argued October 9, 1979;
    decided November 13, 1979

      APPEARANCES OF COUNSEL

      Julius Zizmor for appellant.

      Bruce A. Burns for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (66 AD2d 706).

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


text:
    The People of the State of New York, Respondent, v Lilah Mae Allen, Appellant.
    Argued October 12, 1979;
    decided November 13, 1979

      APPEARANCES OF COUNSEL

      Walter H. Curchack for appellant.

      Mario Merola, District Attorney (Edward G. Spell and Billie Manning of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed for the reasons stated in the opinion by Mr. Justice Joseph P. Sullivan at the Appellate Division (61 AD2d 619).

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


text:
    In the Matter of John Di Vito, Appellant, v State of New York, Department of Labor, et al., Respondents.
    Argued October 12, 1979;
    decided November 13, 1979

      APPEARANCES OF COUNSEL

      Carmín R. Putrino for appellant.

      Robert Abrams, Attorney-General (Maurice K. Peaslee and Shirley Adelson Siegel of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs. Petitioner’s "persistent unwillingness to accept the directives of his superiors” clearly supports the finding of insubordination (Matter of Short v Nassau County Civ. Serv. Comm., 45 NY2d 721, 723). Moreover, in cases involving internal discipline as distinct from external regulation the administrative agency has a discretion of broader range because of "the complexity and sensitiveness of personnel administration in continuing intraorganizational relationships” (Matter of Ahsaf v Nyquist, 37 NY2d 182, 185).

Against that background the sentence in the Appellate Division memorandum suggesting that petitioner’s obduracy "casts serious doubt over his ability to hold a managerial position”, to which petitioner points, furnishes no basis for appeal. Far from importing into the proceeding incompetence, a charge never made by the department, it related, and was germane, to the severity of punishment. Nor in view of the broad discretion accorded the department in such matters can we say that the penalty it imposed, though severe, was " 'shocking to one’s sense of fairness’ ” (Matter of Pell v Board of Educ., 34 NY2d 222, 233). The department had the right in fixing the penalty to consider, among other things, that petitioner’s intransigence prolonged the impasse between him and the employees under him to the detriment of its work.

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

Order affirmed.


text:
    Chinatown Apartments, Inc., Plaintiff, v Horn Construction Co., Inc., et al., Defendants. Horn Construction Co., Inc., and Peter Kiewit Sons’ Co., a Joint Venture, Plaintiff, v Chinatown Apartments, Inc., et al., Defendants, and Robert Rosenwasser, P. C., Appellant. New York City Transit Authority, Third-Party Plaintiff, v De Leuw, Cather and Co. of New York, Inc., Third-Party Defendant-Respondent.
    Argued October 11, 1979;
    decided November 13, 1979

      APPEARANCES OF COUNSEL

      William H. Morris and Gerald P. McMorrow for appellant.

      James L. Fischer and Max Edelman for third-party defendant-respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opiniop by Mr. Justice Nathaniel T. Helman at Special Term. Question certified answered in the affirmative.

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


text:
    Office Park Corporation, Appellant, v County of Onondaga, Respondent. Carl M. Brookman et al., Appellants, v County of Onondaga, Respondent. Multi-City Properties, Inc., Appellant, v County of Onondaga, Respondent. Conklin, Labs & Bebee, Inc., Appellant, v County of Onondaga, Respondent.
    Argued October 8, 1979;
    decided November 13, 1979

      APPEARANCES OF COUNSEL

      Matthew V. Byrne, Jr., for appellants.

      Ralph I. Greenhouse, County Attorney (Rudolph V. Parr and Peter R. Eriksen of counsel), for respondent.
   OPINION OF THE COURT

Orders affirmed, with costs, for the reasons stated in so much of the opinion by Mr. Justice Richard J. Card amone at the Appellate Division as dealt with the claims arising from the 1974 flood (64 AD2d 252).

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


text:
    Varsity Transit Inc., Appellant, v Frederick Saporita, as President of Local Division 1181-1061 of the Amalgamated Transit Union, A.F.L.-C.I.O., et al., Defendants, and Board of Education of the City of New York, Respondent.
    Argued October 11, 1979;
    decided November 13, 1979

      APPEARANCES OF COUNSEL

      Burton S. Cooper and Sheldon Rudoff for appellant.

      Allen G. Schwartz, Corporation Counsel (Lorna Bade Goodman, L. Kevin Sheridan, Joseph F. Bruno and Marian M. Schuman of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order appealed from should be affirmed, with costs. We agree with the Appellate Division that the inclusion of certain requirements in bid specifications contained in prior public contracts does not comprise an implied representation that similar requirements will be mandated with respect to subsequent contracts. The possibility that the needs and requirements of a municipality will change so as to render useless investments made in the hope that those requirements would remain constant is a normal risk of doing business which may not be shifted to the municipality by application of an estoppel theory based on no more than is alleged in this action. Nor do we find any merit in appellant’s other arguments.

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

Order affirmed.


text:
    In the Matter of Howard-Carol Tenants’ Association et al., Appellants, v New York City Conciliation and Appeals Board, Respondent.
    Argued October 8, 1979;
    decided November 13, 1979

      APPEARANCES OF COUNSEL

      David Ng and Kent Karlsson for appellants.

      William E. Rosen and Ellis S. Franke for respondent.
   OPINION OF THE COURT

Memorandum.

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

Both Special Term and the majority at the Appellate Division concluded that the determination of the Conciliation and Appeals Board, that there had been no diminution in required maintenance services, was supported by substantial evidence and was neither arbitrary nor capricious. We cannot say that this was erroneous as a matter of law. That the board found an absence of "objective criteria”, thus making it "impossible to determine the comparison between the May 31, 1968 and present day levels of facilities, equipment, maintenance and all of the other items comprising services”, and accordingly applied "uniform standards for determining such issues”, bespeaks the failure of proof on the part of the petitioning tenants rather than disclosing a legal infirmity in the determination reached by the board.

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

Order affirmed.


text:
    North Village Liquors, Inc., Respondent, v Vascof Realty Corp., Appellant, et al., Defendants.
    Argued October 10, 1979;
    decided November 13, 1979

      APPEARANCES OF COUNSEL

      Mortimer G. Levine for appellant.

      Sheldon Ostro for respondent.
   OPINION OF THE COURT

Memobandum.

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

Plaintiffs assignor and defendant Vascof Realty Corp., tenant and landlord respectively, entered into a lease for certain premises located at 254 West 14th Street in New York City. Vascof also owned three other buildings, located at 250, 252 and 256 West 14th Street, which adjoined plaintiff’s building and which constituted part of the same parcel. In April, 1977, without notice to plaintiff, Vascof sold the property located at 250 and 252 West 14th Street. Plaintiff thereupon initiated the present suit seeking equitable relief as well as damages.

At issue is the meaning to be attached to the last sentence of the following paragraph of the lease agreement: "Should the landlord during the term of this lease or any written agreed renewal thereof offer to sell said premises, the tenant shall have the first right of refusal of such offer. Such right shall extend for a period of 60 days after notice thereof is given in writing to the tenant by the landlord, and if not unconditionally accepted by the tenant within that time, such right shall expire and become null and void for all purposes. This provision shall also apply to the entire parcel owned by the landlord on the southeast corner of 8th Ave. & 14th St.”

Plaintiff contends that his right of first refusal extends not only to the sale of the leased premises but also, by operation of that last sentence, to the sale of any portion of the whole parcel. We agree as did both courts below.

The interpretation of the contractual language suggested by Vascof — that the tenant’s option rights are limited by the language of the lease provision to situations involving either the sale of the demised premises alone or the sale of the entire undivided parcel, renders the provisions of the last sentence meaningless. The paragraph, as originally drafted, did not include this sentence; it appears to have been added by the landlord’s attorney during contract negotiations in response to the tenant’s expressed desire to protect his right to expand into the buildings adjoining his property. Reading the paragraph without this added sentence we would conclude that plaintiff would have had the right of first refusal in the same two instances — in the event of a sale of the leased premises, 254 West 14th Street, or in the event that the entire parcel, including 254 West 14th Street, were offered for sale— precisely the consequence the landlord would attach to the added sentence. So to interpret the agreement would be to accord no meaning to the added sentence.

Accordingly we hold, as did both courts below, that the tenant’s option rights embrace not only the sale of the demised premises or of the whole parcel, but the sale of any part thereof as well.

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

Order affirmed, with costs, in a memorandum. Question certified answered in the affirmative.


text:
    The People of the State of New York, Appellant, v James Coonan, Respondent.
    Argued October 11, 1979;
    decided November 13, 1979

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (Norman A. Bloch and Robert M. Pitler of counsel), for appellant.

      Herbert S. Siegal for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed.

The majority at the Appellate Division reversed defendant’s conviction on both counts, assault in the second degree and criminal possession of a weapon in the third degree, for failure of the trial court to give a charge requested by defendant that if the jury found "that the defendant picked up the gun from the ground and then was arrested immediately” he must be found not guilty. This charge was explicitly requested only with respect to the possession counts in the indictment. The failure of the trial court to respond to this request to charge cannot, therefore, under any theory provide a basis for reversal of the assault conviction. It was error to set this conviction aside.

Prior to submitting this requested charge, in response to another request of defendant’s attorney the trial court had twice charged the jury that "fleeting or momentary” possession was not sufficient to support a conviction on the possession counts under the Penal Law. Defendant’s prior request for a charge on the subject of momentary possession having thus been granted, it was not error for the trial court to decline to give what amounted to a duplicate or cumulative charge on the same subject. Accordingly, the court’s failure to charge as requested provided no basis to disturb defendant’s conviction on the possession count either.

The reversal at the Appellate Division having been on the law alone, the case must be remitted to that court for determination of the facts (CPL 470.40, subd 2, par [b]). In addition, inasmuch as the disposition at the Appellate Division was predicated on the single issue of law which we hold was erroneously resolved, on remittal the Appellate Division should consider any other legal issues defendant may be entitled and choose to raise.

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

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


text:
    In the Matter of Lawrence Black, Inc., et al., Appellants, v Mario M. Cuomo, as Secretary of State of the State of New York, Respondent.
    Argued October 12, 1979;
    decided November 13, 1979

      APPEARANCES OF COUNSEL

      Paul M. Callahan for appellants.

      Robert Abrams, Attorney-General (John Q. Driscoll and Shirley Adelson Siegel of counsel), for respondent.
   OPINION OF THE COURT

Judgment affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (65 AD2d 845).

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


text:
    Laura Long, as Limited Administratrix of the Estate of William Long, Deceased, Respondent, v Murnane Associates, Inc., et al., Defendants and Third-Party Plaintiffs. Kenneth Stay et al., Third-Party Defendants-Appellants.
    Submitted October 15, 1979;
    decided November 13, 1979
   Motion by third-party appellants Kenneth and Donald Stay for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the actions within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals, §§ 11, 40, pp 43, 160-161).


text:
    John Vanneck, Appellant, v Isabelle K. Vanneck, Respondent.
    Submitted October 22, 1979;
    decided November 13, 1979
   Motion to vacate stay denied.


text:
    In the Matter of Breezy Point Surf Club, Inc., et al., Respondents, v State Tax Commission, Appellant.
    Argued October 17, 1979;
    decided November 15, 1979

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Francis V. Dow, Shirley Adelson Siegel and W. Alexander Melbardis of counsel), for appellant.

      Donald T. Fox for respondents.
   OPINION OF THE COURT

Judgment affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (67 AD2d 760).

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


text:
    In the Matter of the Dissolution of Peerless Sales Corp. and Other Corporations. Burns Jackson Miller Summit & Jacoby, Appellant; Arthur Rice et al., Respondents.
    Argued October 17, 1979;
    decided November 15, 1979

      APPEARANCES OF COUNSEL

      Eugene F. Bannigan, John W. Castles, 3d, Stephen J. Crimmins and Laurie E. Foster for appellant.

      Samuel N. Greenspoon for respondents.
   OPINION OF THE COURT

Order modified, with costs to appellant, by granting the petition to enforce the lien and remitting the matter to the Supreme Court, Nassau County, for determination of the amount of the lien for the reasons stated in the dissenting opinion by Mr. Justice James D. Hopkins at the Appellate Division (68 AD2d, at pp 480-481); and, as so modified, order affirmed, noting only that section 475 of the Judiciary Law provides in part that "the lien cannot be affected by any settlement between the parties before or after judgment, final order or determination.”

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


text:
    Police Conference of New York, Inc., Appellant, v Metropolitan Police Conference of Eastern New York, Inc., Respondent.
    Argued October 16, 1979;
    decided November 15, 1979

      APPEARANCES OF COUNSEL

      Arthur J. Harvey for appellant.

      Reynold A. Mauro for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Mr. Justice Robert G. Main at the Appellate Division (66 AD2d 441).

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


text:
    Neo-Ray Products, Inc., Appellant, v Boro Electric Installation, Inc., et al., Respondents.
    Argued October 17, 1979;
    decided November 15, 1979

      APPEARANCES OF COUNSEL

      Alexander Miuccio, Martin S. Kera and Jay Kushner for appellant.

      Stephen H. Marcus and Harold H. Wolgel for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (65 AD2d 687).

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


text:
    The People of the State of New York, Respondent, v Charles J. Panarella, Appellant.
    Argued October 8, 1979;
    decided November 15, 1979

      APPEARANCES OF COUNSEL

      Gerald L. Shargel for appellant.

      Michael Kavanagh, District Attorney (Edward M. P. Greene of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed for the reasons stated in the memorandum at the Appellate Division (66 AD2d 968) except insofar as it suggests that there was direct evidence in the record to support the conviction.

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


text:
    Pavle-Marty Cab Corp. et al., Appellants, v City of New York et al., Respondents.
    Argued October 17, 1979;
    decided November 15, 1979

      APPEARANCES OF COUNSEL

      Alan B. Decker for appellants.

      Allen G. Schwartz, Corporation Counsel (Joel A. Newman and L. Kevin Sheridan of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order appealed from should be affirmed, with costs. While it is beyond cavil that "the Legislature cannot delegate its lawmaking power to an administrative agency”, it is equally true that "the Legislature may declare its will, and after fixing a primary standard, endow administrative agencies with the power to fill in the interstices in the legislative product by prescribing rules and regulations consistent with the enabling legislation” (Matter of Nicholas v Kahn, 47 NY2d 24, 31). Applying these principles to the instant case, it is apparent that the challenged rule properly implements and is clearly authorized by section 2300 of chapter 65 of the New York City Charter.

We have considered appellants’ other contentions, and find them to be devoid of merit.

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

Order affirmed.


text:
    Katherine Goodison, Respondent, v James A. Goodison, Appellant.
    Argued October 18, 1979;
    decided November 15, 1979

      APPEARANCES OF COUNSEL

      John W. Young for appellant.

      Philip E. Van Riper for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (66 AD2d 923). We would only add that this record discloses no basis for relief under Christian v Christian (42 NY2d 63).

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


text:
    In the Matter of Matthew Ferrigno, Appellant, v Board of Trustees of the Police Pension Fund of the City of New York, Article II, Respondents.
    Argued October 15, 1979;
    decided November 15, 1979

      APPEARANCES OF COUNSEL

      Louis L. Stutman for appellant.

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

      Richard A. Dienst for Captains Endowment Association, New York City Police Department, and others, amici curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated in the memorandum opinion of that court.

In view of this disposition we do not reach or consider the contention pressed by respondent that, notwithstanding the provisions of section 207-k of the General Municipal Law, recovery under section B18-43.0 of the Administrative Code of the City of New York for accidental disability pensions is limited to disabilities caused by sudden, unforeseen injuries.

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Stanley Glazer, Appellant, v Board of Trustees of the Police Pension Fund, Article II, of the Police Department of the City of New York, Respondents.
    Argued October 15, 1979;
    decided November 15, 1979

      APPEARANCES OF COUNSEL

      Louis L. Stutman for appellant.

      Allen G. Schwartz, Corporation Counsel (Carolyn E. Demarest and L. Kevin Sheridan of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (66 AD2d 759).

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


text:
    Gloria M. Florio et al., Appellants, v Albert W. Cook, Respondent.
    Argued October 18, 1979;
    decided November 15, 1979

      APPEARANCES OF COUNSEL

      David Weicholz for appellants.

      Steven Di Joseph, Thomas R. Newman and Peter G. Monaghan for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated in its memorandum so far as the same relates to the claim of continuous treatment. We note, in addition, that the plaintiffs contention that the Statute of Limitations was tolled by application of the doctrine of equitable estoppel (Simcuski v Saeli, 44 NY2d 442) must also be rejected, as neither fraud nor fraudulent concealment was pleaded (Immediate v St. John’s Queens Hosp., 48 NY2d 671).

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

Order affirmed, with costs, in a memorandum.


text:
    First National City Bank, Plaintiff, v Tara Realty Corporation et al., Defendants, Long Island Beef Co. et al., Respondents, and Teachers Insurance and Annuity Association of America, Appellant.
    Argued October 16, 1979;
    decided November 15, 1979

      APPEARANCES OF COUNSEL

      Samuel Kirshenbaum and Brian Michael Seltzer for appellant.

      Burton Citak for John Bruno and another, respondents.

      Robert Jay Rapoport for Long Island Beef Co., respondent.
   OPINION OF THE COURT

Order reversed, with costs, and judgment granted in favor of appellant for the reasons stated in the dissenting opinion by Mr. Justice Joseph P. Sullivan at the Appellate Division (64 AD2d, at pp 462-465).

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


text:
    In the Matter of Quotron Systems, Inc., Respondent, v Ivan E. Irizarry, as Finance Administrator of the City of New York, et al., Appellants.
    Argued October 15, 1979;
    decided November 15, 1979

      APPEARANCES OF COUNSEL

      Allen G. Schwartz, Corporation Counsel (Leonard Olarsch and Steven Forrest Jackson of counsel), for appellant.

      Jeffrey S. Cook, Alan M. Epstein and Donald P. Kelley for respondent.
   OPINION OF THE COURT

Memorandum.

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

The nature of plaintiffs business is sufficiently described in Quotron Systems v Gallman (39 NY2d 428), which held that it could not be taxed as a utility. A fair reading of Matter of Crystal v City of Syracuse (38 NY2d 883, affg 47 AD2d 29), Matter of Metropolitan Bank of Syracuse v Department of Assessment of City of Syracuse (44 NY2d 864, affg 57 AD2d 1055) and Matter of Crossman Cadillac v Board of Assessors of County of Nassau (44 NY2d 963, affg 60 AD2d 842) is that section 102 (subd 12, par [d]) of the Real Property Tax Law is "aimed principally at expanding the definition of real property with respect to utility companies” (44 NY2d, at p 964) and that otherwise telephone and telegraph equipment will be taxable as realty only if it is " 'incorporated as part of the real estate’ ” (id., at p 965). Bearing in mind the well-settled rule that ambiguities in tax statutes are to be construed most strongly in favor of the taxpayer and against the government (Quotron Systems v Gallman, supra, at p 431; McKinney’s Cons Laws of NY, Book 1, Statutes, § 313, subd c), we have held in Crystal, Crossman and Metropolitan Bank that portable plug-in telephones, movable office telephone systems and portable bank vault alarms are not real property within the meaning of the descriptive phrase of section 102 (subd 12, par [d]) of the Real Property Tax Law: "Telephone and telegraph lines, wires, poles and appurtenances”. While we recognize that People ex rel. Holmes Elec. Protective Co. v Chambers (1 Misc 2d 990, affd 285 App Div 886, affd 1 NY2d 760) is closely akin to the instant fact situation, it must be deemed to have been overruled by the later cases referred to above, which refused to recognize as appurtenances to telegraph or telephone lines movable equipment similar to that here involved.

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

Order affirmed.


text:
    Bunker Ramo Corporation, Respondent, v Tax Commission of the City of New York, Appellant.
    Argued October 15, 1979;
    decided November 15, 1979
    APPEARANCES OF COUNSEL

      Allen G. Schwartz (Leonard Olarsch and Steven Forrest Jackson of counsel), for appellant.

      William B. Shealy and William H. Brayer, Jr., for respondent.
   OPINION OF THE COURT

Order affirmed, with costs (see Quotron Systems v Irizarry, 48 NY2d 795, decided herewith).

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


text:
    Elda Development Corp., Respondent, v John Wall et al., Appellants.
    Submitted October 29, 1979;
    decided November 15, 1979
   Motion to dismiss the appeal herein granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that the orders appealed from do not finally determine the action within the meaning of the Constitution (see Cohen and Karger, Powers of the New York Court of Appeals, §§ 38, 39, pp 156-158).


text:
    The People of the State of New York, Respondent, v Mark J. Gerard, Appellant.
    Submitted November 5, 1979;
    decided November 15, 1979
   Motion for further extension of time granted, appellant’s papers on appeal to be served and filed on or before January 12, 1980. Motion for continuation of stay denied as unnecessary in view of the Court of Appeals order dated October 15, 1979 continuing the stay until determination of the appeal.