text:
    Elof Pierson, Respondent, v City of New York, Appellant. Ella Moore, Appellant, v City of New York, Respondent. Michael Tarquinio et al., Appellants, v City of New York, Respondent, et al., Defendants.
    Argued May 6, 1982;
    decided June 17, 1982

      APPEARANCES OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Debra A. James, Stephen J. McGrath and Leonard Koerner of counsel), for City of New York, appellant in the first action, respondent in the second and third actions.

      Gary Sinawski for Ella Moore, appellant.

      Edward S. Rudofsky, James B. Zane and Frederick A. Polatsek for Michael Tarquinio and another, appellants.

      Alan J. Firestone and Donald L. Marcovitz for Elof Pierson, respondent.
   OPINION OF THE COURT

In Pierson v City of New York.

Memorandum.

The order of the Appellate Division should be reversed, with costs, the motion to dismiss the city’s affirmative defense should be denied and the certified question answered in the negative.

The 1976 amendments to section 50-e of the General Municipal Law permit a court to grant an application to file a late notice of claim after the commencement of the action but preclude the court from granting an extention which would exceed “the time limited for the commencement of an action by the claimant against the public corporation” (L 1976, ch 745, § 2 [now General Municipal Law, § 50-e, subd 5]). That means that the application for the extension may be made before or after the commencement of the action but not more than one year and 90 days after the cause of action accrued, unless the statute has been tolled (General Municipal Law, § 50-i, subd 1; Cohen v Pearl Riv. Union Free School Dist., 51 NY2d 256, 262-263). This result is compelled by precedent, by sound principles of statutory interpretation, and by common sense. To permit a court to grant an extension after the Statute of Limitations has run would, in practical effect, allow the court to grant an extension which exceeds the Statute of Limitations, thus rendering meaningless that portion of section 50-e which expressly prohibits the court from doing so. In our view, it was the intention of the Legislature, manifested in the amended statute, to relax the objectionably restrictive features of the old statute, but to fix the period of the Statute of Limitations as the period within which any relief must be sought. With the expiration of the period of limitations comes the bar to any claim.

The history of the statute does not support the dissenter’s contention that the Legislature intended to permit the court to grant the application at any time. The 1976 legislative documents, on which the dissent so heavily relies, simply show that the revisions of subdivision 5 of section 50-e were meant to alter the substantive criteria upon which the court could grant the application to file a late notice of claim (Twenty-first Ann Report of NY Judicial Conference, 1976, pp 286, 297-303, 358, 401-403, 412). No mention was made of any intent to abandon the longstanding requirement that the application must be made within a specified and relatively short period of time, nor was it proposed that the court be permitted to grant an application to file a late notice of claim whenever made, even many years after the event. On the contrary, Professor Graziano’s study expressly states that even if the liberalizing amendments were adopted “applications under subdivision 5 of section 50-e must still be made within one year after the happening of the event upon which the claim is based” {ibid., p 412). The final version and latest amendment simply extends that period by an additional 90 days.

To the extent that the recent amendments may fail to remove the harsher aspects of the statute, in accordance with this court’s suggestion in Camarella v East Irondequoit Cent. School Bd. (34 NY2d 139,142), it is sufficient to note that calls for broad reform are often met by more modest revisions on the part of the Legislature.

In this case the time for filing a notice without court approval had expired and no application for an extension was made prior to the expiration of the Statute of Limitations. Thus the court lacked the power to authorize late filing of the notice.

In Moore v City of New York.

Memorandum.

The primary issue is resolved by our decision in Pierson v City of New York. In addition we find no merit to the plaintiff’s contention that the statutory period did not begin to run until she discovered the fact that her building had been destroyed. Demolishing a building located on a city street cannot be fairly characterized as a surreptitious act akin to embezzlement, nor can it be said that the building after its removal is comparable to a hidden object.

In Tarquinio v City of New York.

Order affirmed, with costs (see Pierson v City of New York, decided herewith).

Meyer, J.

(dissenting). The majority reaches its conclusion that an application under subdivision 5 of section 50-e of the General Municipal Law for extension of time must be made within one year and 9.0 days in reliance on dictum in Cohen v Pearl Riv. Union Free School Dist. (51 NY2d 256, 262-263) and in total disregard of the legislative history of chapter 745 of the Laws of 1976 and of the salutary purpose of the amendments made by that act, which was to alleviate the harshness to which this court itself had called the attention of the Legislature in Camarella v East Irondequoit Cent. School Bd. (34 NY2d 139, 142). Because stare decisis does not require that we accord precedential value to a statement in a prior decision phrased broadly enough to cover the present case but made with respect to facts in the prior case which did not require consideration of the point now in issue (People v Rosano, 69 AD2d 643, 654, affd 50 NY2d 1013; Sliosberg v New York Life Ins. Co., 217 App Div 67, 74, affd 244 NY 482; see Colonial City Traction Co. v Kingston City R. R. Co., 154 NY 493, 495; 21 CJS, Courts, § 190, pp 309-310), and because review of the history of the amending statute makes crystal clear that the Legislature did not intend the result the majority now reaches, I respectfully dissent and vote to reverse and remit in Moore, to affirm in Pierson and to reverse and reinstate in Tarquinio.

The Cohen dictum upon which the majority relies was stated in discussion of the question “whether the period during which a court may grant an extension of time within which to serve notice of claim is tolled during the infancy of the claimant in accordance with CPLR 208.” The answer was in the affirmative because “[b]y its terms, the amendment [sic] version of section 50-e (subd 5) makes the period during which such an extension may be granted coextensive with the Statute of Limitations governing the claim” and, therefore, to the extent that CPLR 208 tolled the period of limitations there was “a concomitant tolling of the time during which late notice of claim may be served” (51 NY2d, at pp 262-263). Not involved or addressed in Cohen was the question on which these cases turn: May the application for extension be made after the governing limitation period has expired? All that the Cohen facts required was the conclusion that the extension authorized by the second sentence of subdivision 5 was at least as long as the applicable limitation period, including any period of tolling. The unfortunate use of the word “during” rather than “for” in Cohen’s statement that subdivision 5 “makes the period during which such an extension may be granted coextensive with the Statute of Limitations” should not now be permitted to deprive the three claimants involved in these appeals of the right to litigate their claims. Especially is this so because the history of the amending statute shows that although Cohen’s tolling result was intended by the Legislature its gratuitous limitation of time to apply for an extension was not.

To meet Camarella’s suggestion for revision of section 50-e “in order that a more equitable balance may be achieved between a public corporation’s reasonable need for prompt notification of claims against it and an injured party’s interest in just compensation” (34 NY2d, supra, at pp 142-143) and similar problems that had been brought to its attention, the Office of Court Administration commissioned a comprehensive study by Professor Paul S. Graziano of St. Johns’ University School of Law. On the basis of that Study, from which however it departed in some respects, the Judicial Conference recommended changes in section 50-e, among other statutes. It noted that “the functional purpose of the notice of claim is to protect a public corporation against stale or unwarranted claims and to enable it to investigate claims timely and efficiently” (Report, at pp 286, 302) and that “The tightly woven provisions of the present law governing leave to serve a late notice of claim (subd 5) should be loosened, keeping in mind the functional purpose of the notice, stated above, and the need to balance the interests of the public and of the injured person” (Report, at p 287). It summarized the purpose of its recommendations as follows (at p 288):

“A more equitable balance has been sought by (1) breathing greater flexibility into section 50-e without defeating its basic purpose, (2) codifying and clarifying existing decisional law on troublesome questions, and (3) overruling decisional law and repealing or amending statutes that do not reflect the basic purpose of notice of claim statutes or that have led to unjust results.

“The added flexibility in section 50-e is attained primarily by enlarging the period within which a late notice of claim may be filed, not to exceed the limits set by a statute of limitations, and articulating some of the factors which should guide the court’s discretion in permitting a late filing.

“It is intended that older judicial decisions construing the provisions of section 50-e rigidly and narrowly will be inapplicable as a result of these remedial amendments,, which will enable the courts to apply these provisions in a more flexible manner to do substantial justice.”

To be noted is the fact that nothing in that statement of purpose speaks to whether an application for permission to file a late notice of claim must precede the filing of such a late notice, or can be granted after such a filing and after the permissible extension period, provided the public corporation has received the required information within the permissible extension period. That the construction of subdivision 5 espoused in Cohen and now embedded in the statute by the majority’s conclusion in these cases is an unwarranted limitation on the scope of the discretion intended by the Legislature to be vested in the court is, moreover, clear, for both the prior statute and the provision as proposed in the Study contained a specific limitation as to time of application which the Judicial Conference deleted from the bill as presented to the Legislature.

The subdivision as it read prior to 1976 specifically required that “Application for such leave [to serve a late notice of claim] must be made within the period of one year after the happening of the event upon which the claim is based, and shall be made prior to the commencment of an action to enforce the claim” and also that leave be. granted “within a reasonable time after the expiration of the period specified in subdivision one” (Study, at pp 401, 402). As proposed in the Study, the latter limitation was to be removed (Study, at p 401) but not the former. Accordingly, the subdivision as the Study proposed that it be amended required, in paragraph (b) that “In all other [than disability of infancy or insanity] cases, the application must be made within one year after the happening of the event upon which the claim is based” {id., at pp 402, 412) and in paragraph (c) that “An application for leave to serve a late notice of claim shall not be denied on the ground that it was made after the commencment of an action to enforce the claim” {id.).

As presented by the Judicial Conference to the Legislature, however, the subdivision consisted of two unlettered paragraphs, which differed from the Study proposal in respects determinative of the present issue. First, the Judicial Conference revision deleted from the first paragraph of the Study bill the words “within a reasonable time after the expiration of the time” specified in subdivision 1. Second, it dropped from the second paragraph of the Study bill the sentence (quoted above) requiring that application be made within one year after the event (compare Study, pp 402, 412, with Report, pp 291, 300-301) and replaced it with a limitation on the extension which could be granted rather than the time of the application [“The extension shall not exceed the time limited for the commencment of an action by the claimant against the public corporation”]. The third paragraph of the Study bill Was, however, left intact except for the deletion of its identifying letter “c” (Report, at p 291).

The comment of the conference on the subdivision as presented to the Legislature called attention to the great flexibility provided and the part to be played in a court’s exercise of discretion of prejudice to the public corporation. As to the first, it was noted that (Report, at p 300) “The proposed amendment to subdivision 5 would significantly extend the discretion of the court to grant leave to file a late notice of claim. The subdivision, as amended, reflects a substantial change of policy in respect to applications for leave to file late notices of claim, giving the court greater flexibility in exercising discretion in this area.” As to the prejudice factor, its statement was: “Substantial prejudice to the public corporation in maintaining its defense on the merits, if caused by the delay in serving the notice of claim, should weigh against the claimant. Thus, if neither the corporation nor its attorney nor its insurance carrier had actual knowledge of the essential facts constituting the claim and if, as a result of claimant’s default in serving a timely notice of claim, the public corporation was deprived of the opportunity to make an efficient and reliable investigation of the event on which the claim is based, the court in the exercise of its discretion might well deny leave to file a late claim” (Report, at pp 302-303). It noted also (at pp 301, 303) that the period of extension was limited to that of the period of limitations, including tolling under CPLR 204 (subd [a]) and CPLR 208, but said nothing with respect to the time within which application for an extension need be made.

As passed by the Legislature, therefore, the subdivision contains a limitation on the period of the extension that can be granted but no expressed limitation on the time within which the extension must be applied for. Implicit in the second unnumbered paragraph of the subdivision, however, is the intent of the Legislature that the application for leave can be made after expiration of the limitation period for it expressly provides that an application “shall not be denied on the ground that it was made after commencment of an action” (emphasis supplied). Because an action may be commenced on the last day of the one-year and 90-day limitation period and an application made after the action was so commenced shall not be denied on that ground alone, it necessarily follows that application may be made after the limitation period has expired. That does not mean that prejudice to the public corporation against which the claim is made may not result in denial of the application or that denial may not result from the court’s assessment of the other discretionary factors. What it does mean is that short of a showing of prejudice or evidence supporting denial on the basis of such other factors, the application “shall not be denied.” It follows that Justice Leonard Sandler’s analysis of the statute for the Appellate Division in Pierson was correct. Moreover, both courts below concluded in Pierson that discretion should be exer^ cised to approve nunc pro tunc the late notice of claim upon which a comptroller’s hearing had been held, and that the city’s affirmative defense should, therefore, be stricken. There being no abuse of discretion as a matter of law in their having done so, the Appellate Division order in Pierson should be affirmed.

Determination of the proper results in Moore and Tarquinio requires analysis of additional provisions of the section. Paragraph (a) of subdivision 1 of the section requires that a notice of claim be filed “within ninety days after the claim arises” and subdivision 2 of the section spells out the form and content of the notice. Subdivision 3 establishes how and upon whom the notice is to be served, and provides that service made timely but in a defective manner is nevertheless valid if the public corporation demands an examination in regard to it or if the notice is in fact received timely by the proper person and not returned within 30 days after receipt with a notice specifying the defect in service. If such a notice as to defect is served, claimant has 10 days after receipt of the notice in which to make service anew in a proper manner.

Subdivision 3, which concerns defects in the manner of service, makes no provision for discretionary action by a court; rather it validates otherwise defective service upon a specified factual showing. By contrast, subdivisions 5 and 6 do not operate automatically; rather they vest in the courts discretion as to untimely service and as to defects made in good faith in the form or content of a notice of claim. As to the latter, subdivision 6 gives the court discretion to order the defect “corrected, supplied or disregarded,” the sole criterion being that “it shall appear that the other party was not prejudiced thereby.” As to the former, subdivision 5 is much more elaborate. It vests the court with discretion to extend the 90-day period for service of a notice, but makes clear that the time for service cannot be extended beyond the limitation period. It specifies that “the court shall consider, in particular, whether the public corporation or its attorney or its insurance carrier acquired actual knowledge of the essential facts constituting the claim within the time specified [90 days] in subdivision one or within a reasonable time thereafter” in determining whether to grant the extension. It then mandates that the “court shall also consider all other relevant facts and circumstances” including disability, excusable error, justifiable reliance on settlement representations, and whether the delay “substantially prejudiced the public corporation in maintaining its defense on the merits.” Finally, it negates the implication that would otherwise arise from the provisions of section 50-i, requiring service of a notice of claim prior to service of the complaint and an allegation in the complaint that 30 days have elapsed since the notice was served,'by expressly directing that “leave to serve a late notice shall not be denied on the ground that it was made after commencement of an action.”

Thus, under the express provisions of subdivisions 5 and 6 neither the order in which the notice of claim and the complaint are served nor the form in which the notice of claim is cast is jurisdictional. Indeed, as to form and content, as distinct from time or manner of service, both the Report (at p 304) and the Study (at pp 404, 413) note that there has been incorporated into section 50-e the liberal discretionary powers vested in the court under CPLR 2001. Moreover, the Study (at p 395) (in reference to paragraph [b] of subdivision 3, it is true, but which appears equally applicable to the phrase wherever used in the section) states that “The words ‘notice of claim’ * * * should be liberally construed. Thus, if the information identifying the public corporation against which the claim exists is contained in a letter accompanying the notice of claim, the two should be read together. Actual knowledge, acquired via written communication, should be the test”. (emphasis supplied).

It follows from the foregoing that the First Department was correct in Tarquinio, as it had been in Pierson, in concluding that the application for leave to serve a late notice could be served after the period of limitations had expired, but incorrect in its conclusion that a complaint served after the expiration of the 90-day period but within the statutory period for commencement of an action could not be deemed a notice of claim. Its reason (that “the entire statutory scheme requiring the filing of notices of claim would be obviated” [84 AD2d, at p 268]) does not withstand analysis for a number of reasons. First, subdivision 6 and the last unnumbered paragraph of subdivision 5 and the Report and Study comments on them evidence the contrary legislative intent. Second, the statutory scheme for notice of claim will be obviated only if the court finds that the public corporation has not been prejudiced in defending the action. If actual knowledge acquired through a writing is the proper test, then it should not matter whether the writing is entitled as a “notice of claim” or as a “complaint”. If, however, the public corporation establishes that it has in fact been prejudiced by reason of the form in which the information was received, the application will be denied and the statutory scheme enforced. Third, reliance by the Tarquinio court on the sentence quoted from Camarella is misplaced because the Legislature made clear by its 1976 amendments that it did not decree a particular form of notice; indeed, by the provisions of subdivision 6, it gave the courts express power to substitute something else.

Thus the determination whether Special Term should have granted the Tarquinio cross motion and denied the city’s motion to dismiss turned as to the form of the notice upon whether the city had been prejudiced and as to its lateness upon a number of factors including whether the city had been prejudiced. Special Term found no prejudice. Given the fact that there was a city investigation within a few days of the accident and that the complaint was served within the period of limitations, plaintiffs must be deemed ' to have made a sufficient showing of lack of prejudice to the city to require that it go forward with proof of prejudice. The Appellate Division’s reversal on this aspect is, however, based not on record evidence but on generalized conjecture, as the two paragraphs of its opinion preceding the final paragraph show. Indeed, more was not possible, the city having filed in opposition only an affidavit of an Assistant Corporation Counsel, the only claim of prejudice in which was that plaintiff had not submitted to examination. It did not, however, allege any demand or deny that with his bill of particulars plaintiff had served a notice of availability for physical examination. I would, therefore, reverse the Appellate Division order and reinstate that of Special Term.

In Moore, on the other hand, I would reverse and remit to the Appellate Division for its review of Special Term’s exercise of discretion in favor of complainant. The Appellate Division held Special Term to be without jurisdiction because the application was made after expiration of the Statute of Limitations. For the reasons already detailed as to Pierson above, that ruling was incorrect. Plaintiff had in fact served a notice of claim within the period of limitations, though not until almost a year after completion of the demolition of the building upon which her claim was based. The city having rejected her notice as untimely, plaintiff’s application for permission to file her claim nunc pro tunc was, therefore, within the power of Special Term to act upon. However, the Appellate Division exercises the same discretion as does Special Term. Because it decided the question as a matter of law and did not consider whether discretion should be exercised in plaintiff Moore’s favor, the matter should be remitted to the Appellate Division, Second Department, for its consideration of that question.

In Pierson v City of New York: Order reversed, with costs, motion to dismiss defendant’s affirmative defense denied, and question certified answered in the negative in a memorandum.

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

In Moore v City of New York: Order affirmed, with costs, in a memorandum.

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

In Tarquinio v City of New York: Order affirmed, with costs (see Pierson v City of New York, decided herewith).

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

      . “[T]he proposed statute provides that an extension of the time period within which a notice of claim may be filed shall not exceed the time limited for the commencment of an action by the claimant against the public corporation. However, the statute of limitations may be tolled when the claimant is a person under disability because of infancy or insanity at the time when the cause of action accrued (CPLR 208)” (Twenty-first Ann Report of NY Judicial Conference, 1976, p 303).

      . The study (hereafter “Study”) is printed at page 358 ff of the Twenty-first Annual Report of the Judicial Conference (1976).

      . The Fourteenth Annual Report of the Judicial Conference to the Legislature on the CPLR (hereafter “Report”) in which the changes were recommended is printed at page 286 ff of the Twenty-first Annual Report of the Judicial Conference (1976).

      . The majority’s conclusion that “To permit a court to grant an extension after the Statute of Limitations has run would, in practical effect, allow the court to grant an extension which exceeds the Statute of Limitations” is, simply put, a non sequitur. When the necessary data has been presented to the municipality before limitations have run, all the court is called upon to do is consider whether under all the circumstances leave would have been granted had it in fact been applied for at the time the information was furnished, which in no way extends'the period of limitations. No more determinative is the quotation from the Graziano report (at p 412) appearing at page 955 of the majority memorandum. What the majority ignores is, as noted on pages 959-960 of this dissenting opinion, the Judicial Conference thereafter deleted from the section the sentence on which the quoted Graziano statement was based.

      . The Report notes with respect to subdivision 5 (at p 301) that “In determining whether to grant such permission the court is permitted to consider all relevant circumstances.” It also spells out (id.) the reason for the particulars it includes: “In order to provide guidance for the exercise of the Court’s discretion and to assure a functional and flexible use of the power vested in the court, the subdivision enumerates some of the facts that are pertinent to the granting of leave to file a late notice.”


source: Caselaw Access Project

license: Public Domain

text:
    Frank B. Hall & Co. of New York, Inc., Respondent, v Orient Overseas Associates, Appellant.

      Decided June 17, 1982

      APPEARANCES OF COUNSEL

      Eugene J. Morris for appellant.

      Michael F. Fitzgerald for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order affirmed, with costs, for reasons stated in the opinion of Justice David Ross at the Appellate Division (84 AD 2d 338).

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


text:
    Diane Pollack, Appellant, v Edward A. Pollack, Respondent.
    Decided June 17, 1982

      APPEARANCES of counsel

      Norman M. Sheresky for appellant.

      John A. Vassalo for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order affirmed, with costs, and the question certified answered in the affirmative. The Legislature has determined that the controlling factor with respect to the applicability of the Equitable Distribution Law (Domestic Relations Law, § 236, part B) to pre-existing causes of action is not the date on which issue was joined, or the possibility that the party may be the type of person the law was generally intended to benefit, but the date on which the action was commenced (Valladares v Valladares, 55 NY2d 388; Tucker v Tucker, 55 NY2d 378; Zuckerman v Zuckerman, 56 NY2d 636). In this case the action was commenced before the new law became effective and therefore the application for a voluntary discontinuance in order to avoid the legislative mandate must be denied (Tucker v Tucker, supra, pp 384-385).

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


text:
    Rhoda Galyn, Respondent, v Lawrence Schwartz, Appellant.
    Submitted May 14, 1982;
    decided June 17, 1982

      APPEARANCES OF COUNSEL

      Beatrice Rothaus for appellant.

      Maris Bibelnieks and Dzintra Bibelnieks for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment appealed from and the order of the Appellate Division brought up for review should be modified, without costs, so as to deny counsel fees to plaintiff wife, and, as so modified, affirmed.

We agree with the Appellate Division’s disposition of the defendant husband’s Statute of Limitations defense for reasons stated in its opinion. We also agree that a party to a separation agreement may not attack the validity of the agreement collaterally after it has been incorporated, as it was here, in a valid, bilateral foreign decree of divorce (Greschler v Greschler, 51 NY2d 368, 376-377; Fink v Goldblatt, 18 AD2d 629, affd 13 NY2d 957; see 19 Carmody-Wait 2d, NY Prac, p 563). Therefore, the husband’s affirmative defense, in which he alleged that the separation agreement was void because of his emotional state and lack of counsel at the time of its execution, may not be raised in this action.

Nor was there merit to the husband’s affirmative defense of laches. He has failed to show that he was prejudiced by the wife’s alleged undue delay in asserting her right to arrears (see Sorrentino v Mierzwa, 25 NY2d 59).

As to counsel fees, we believe Justice Silverman’s partial dissenting opinion at the Appellate Division correctly distinguishes Fabrikant v Fabrikant (19 NY2d 154). Unlike in Fabrikant, the divorce decree here, as modified by the 1975 Family Court order, no longer requires the level of support provided for by the separation agreement. Accordingly, while the wife was not bound by the support provision of the decree and so was privileged to proceed under the separation agreement, by electing to do so she chose a litigation path to which the provision for counsel fees in section 238 of the Domestic Relations Law was not applicable.

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

Judgment appealed from and order of the Appellate Division brought up for review modified, without costs, in accordance with the memorandum herein and, as so modified, affirmed.


author: Chief Judge Cooke

text:
    In the Matter of the Estate of Jane M. Renard, Deceased. Arthur H. Dean et al., Respondents; Philip J. Renard, Appellant.
    Argued May 13, 1982;
    decided June 17, 1982

      APPEARANCES OF COUNSEL

      Perry S. Reich and Richard C. Chier for appellant.

      Robert Scott Edmonds, Frederick A. Terry, Jr., and James I. Black, III, for Arthur H. Dean and another, respondents.

      Patricia A. Gallagher for Societe D’Entraide des Membres de la Legion d’Honneur, respondent.

      Robert Abrams, Attorney-General (John L. Moncrief, Jr., of counsel), for ultimate charitable beneficiaries.
   OPINION OF THE COURT

Order affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the estate, for reasons stated in the portion of the opinion by Surrogate Millard L. Midonick granting the application on the basis of EPTL 3-5.1 (108 Misc 2d 31).

Concur: Judges Jasen, Jones, Wachtler and Meyer. Chief Judge Cooke dissents and votes to reverse in the following opinion in which Judge Gabrielli concurs. Taking no part: Judge Fuchsberg.

Chief Judge Cooke

(dissenting). In my view, this court’s decision in Matter of Clark (21 NY2d 478) is dispositive of the question whether EPTL 3-5.1 (subd [h]) permits a nondomiciliary to elect in her will to apply New York law so as to avoid the forced heirship provisions of the law of her domicile at the time of death. Inasmuch as the majority adopts the position that such an election can be made, I am compelled to dissent.

Jane Renard, the deceased, was born in France in 1899. She came to New York in 1941, became a United States citizen in 1965, and remained domiciled here until 1971, when she returned to France. In 1972, decedent executed a will at the Paris office of the New York law firm of Sullivan & Cromwell, where she had been employed while in New York. She died a French domiciliary in 1978, survived by her adopted son Philip, a citizen of both France and the United States and who was domiciled in California.

Decedent left her Paris apartment and its furnishings to Philip. The remainder of the estate, bank and brokerage accounts in New York, went to a friend and a French charity, respondent Societe d’Entraide des Membres de la Legion d’Honneur (Societe). The will provided: “I hereby declare that I elect that this‘Will shall be admitted to original probate in the State of New York and shall be construed and regulated by the laws of the State of New York, and that the validity and effect thereof shall be determined by such laws.” Arthur H. Dean, a member of the New York Bar, and the Bank of New York were named as executors.

The instrument was admitted to original probate in the Surrogate’s Court of New York County, after which the executors petitioned for an order for distribution of decedent’s New York property in accordance with New York law. Philip filed an objection, claiming his right under French law as surviving child to one half of decedent’s estate. Respondents Societe and the executors resisted Philip’s claim, urging that effect should be given to Jane Renard’s election to apply New York law as authorized by EPTL 3-5.1 (subd [h]). The Surrogate granted the application to permit distribution according to the terms of the will. The court concluded that EPTL 3-5.1 (subd [h]) permitted the election and that Matter of Clark (21 NY2d 478, supra), construing that section’s predecessor to be without effect as to a widow’s right of election, was distinguishable as involving different statutory language. Alternatively treating the question as one of choice of law, the Surrogate determined that New York’s interest in testamentary freedom was paramount and thus its law should apply. A majority of this court adopts the former reasoning. I am unpersuaded.

In Matter of Clark (id., at p 481), this court faced the question whether a nondomiciliary husband, “by selecting New York law to regulate his testamentary dispositions, [could] cut off or otherwise affect the more favorable right given his widow to elect by the law of their domicile?” The Clark will satisfied New York’s right of election but did not satisfy that right under the law of Virginia, the couple’s domicile. The will provided that “this Will and the testamentary dispositions in it and the trusts set up shall be construed, regulated and determined by the laws of the State of New York.” The last sentence of section 47 of the Decedent Estate Law, the predecessor to EPTL 3-5.1 (subd [h]), provided that whenever a nondomiciliary “shall have declared in his will that he elects that such testamentary dispositions shall be construed and regulated by the laws of this state, the validity and effect of such dispositions shall be determined by such laws.”

In holding that the surviving spouse could assert the Virginia right of election, then Chief Judge Fuld stated that “the language of the statute, as well as its legislative history and the policy to be served by it, clearly demonstrates that the words ‘testamentary dispositions’ and ‘the validity and effect of such dispositions’ do not encompass the right accorded a spouse to elect to take in opposition to the will.” (21 NY2d, at p 483.) The court further noted that “[u]nlike the expressions of intent which constitute testamentary dispositions, the right of election, both in Virginia and New York, is statutory in nature and exists wholly outside of, and in direct contravention to, the provisions of a will * * *. [T]he widow’s right of election * * * is not a ‘testamentary disposition’ whose validity and effect may be controlled by the provisions of a will under section 47 * * *. [F]ar from being a testamentary disposition, is a ‘restriction on the right [of the decedent] to make [such] a * * * disposition.’ ” (Id., at p 484.)

The explicit import of Clark is that section 47 had no effect on restrictions placed on a decedent’s testamentary power — “for instance, to disinherit his spouse or other members of his family”, but goes only to “discerning and carrying out the testator’s wishes and desires.” (Id., at p 484.)

Particularly significant here is that court’s observation that section 47 had been replaced since the testator’s death “by a very similar provision”, EPTL 3-5.1 (subd [h]) {id., at p 482). Unlike the majority, I am unwilling to avoid the impact of this observation by characterizing it as a mere dictum and am unable to discern any critical distinction between the current statute and its predecessor. The language and legislative history of EPTL 3-5.1 (subd [h]) make clear that the statutes are indistinguishable on the question presented here.

The Surrogate opined that the Clark analysis of section 47 was inapplicable to EPTL 3-5.1 (subd [h]) because section 47 permitted an election of New York law to govern only “testamentary dispositions” while EPTL 3-5.1 (subd [h]) permits such designation “to govern The disposition of [decedent’s] property situated in this state’ ”, a phrase the Surrogate found “broad enough, as a matter of plain meaning, to apply to all property passing as a result of a decedent’s death.” (108 Mise 2d 31, 37.) The language relied on, however, does not define the scope of subdivision (h). EPTL 3-5.1 (subd [h]) by its terms is concerned only with testamentary dispositions. The testator’s election under subdivision (h) to have New York law govern “the disposition of his property situated in this state” relates to determining, among other things, the “intrinsic validity” and “effect” of “any such disposition”, both of which expressly concern “testamentary disposition^]” (EPTL 3-5.1, subd [a], pars [4], [5]). Thus, nothing in the language of EPTL 3-5.1 supports the view that it is to be read more broadly than its predecessor, section 47.

Nor does the legislative history of EPTL 3-5.1, deemed controlling by the Surrogate, justify disregarding Clark as precedent. It is true that, but for Clark, portions of the Fifth Report to the Legislature of the Temporary State Commission on Modernization, Revision and Simplification of the Law of Estates (Report) (NY Legis Doc, 1966, No. 19) lend support to the construction of EPTL 3-5.1 adopted by the majority. But the Report relies on section 47 as embodying the principle that nondomiciliaries can avoid restrictions on testamentary dispositions (Report, at p 636), a conclusion expressly rejected later by the Clark court when it construed that section. EPTL 3-5.1 (subd [h]) merely “re-enacted[ed] the last sentence of DEL § 47 with changes in form keyed to the drafting pattern of the new law” (Revisers’ Notes, McKinney’s Cons Laws of NY, Book 17B, EPTL'3-5.1, p 620 [emphasis added]; see, also, Rohan, Practice Commentary, McKinney’s Cons Laws of NY, Book 17B, EPTL 3-5.1, p 610 [subdivision (h) “restates, without change, the substance of the last sentence in section 47”]). It is evident then that section 47 of the Decedent Estate Law was the cornerstone for EPTL 3-5.1. And, inasmuch as no substantive change between the two was intended by the Legislature or reflected in the statutory language, it is equally evident that the Clark court’s construction of section 47 as having no application to rights existing “wholly outside of, and in direct contravention to, the provisions of a will” (21 NY2d, at p 484) must be reflected in the construction of EPTL 3-5.1 (subd [h]). EPTL 3-5.1, therefore, can have no greater impact on such rights than did section 47.

The majority’s apparent dissatisfaction with the Clark holding does not justify the decision here. The Clark decision, with its implications for EPTL 3-5.1, has been left undisturbed since 1968 by the Legislature, despite the ready means available to that body to correct any perceived misinterpretation of its intent (see Matter of Higby v Mahoney, 48 NY2d 15, 18; People v Hobson, 39 NY2d 479, 489). As this court has noted: “Generally, once the courts have interpreted a statute any change in the rule will be left to the Legislature, particularly where the courts’ interpretation is a long standing one” (Matter of Eckart, 39 NY2d 493, 499-500). Stability in judicial pronouncements is particularly important when the nature of the question involved rules concerning the transfer of property or testamentary dispositions (id., at p 500). Unless it can be shown that the result in the prior case “is clearly erroneous or disruptive of the legislative purpose” (id., at p 502) any change should come from the Legislature. No such showing has been made here.

The forced heirship under French law, like the spouse’s right of election, operates against the will, contravening the testator’s expressed intent. Like the right of election, the forced heirship is not a testamentary disposition and cannot be adversely affected by the testator’s unilateral decision under EPTL 3-5.1 (subd [h]) to designate New York law to govern (see Matter of Clark, 21 NY2d 478, 484, supra).

Effectively overruling Matter of Clark, the majority today drastically alters the law relating to a nondomiciliary’s testamentary disposition of property located in New York. Not only may a forced heirship be avoided by a choice-of-law clause, but so may any right accorded by the law of the domicile protective- of persons surviving the decedent, including any spousal right of election more favorable than that accorded by New York. No sound jurisprudential or other policy reason has been articulated for such a result. I would adhere to Matter of Clark and hold EPTL 3-5.1 inapplicable to a forced heirship claim. I, therefore, respectfully dissent.

Order affirmed, etc.

      . EPTL 3-5.1 (subd [h]) provides: “Whenever a testator, not domiciled in this state at the time of death, provides in his will that he elects to have the disposition of his property situated in this state governed by the laws of this state, the intrinsic validity, including the testator’s general capacity, effect, interpretation, revocation or alteration of any such disposition is determined by the local law of this state.” The terms “intrinsic validity” and “effect” are defined as follows: “ ‘Intrinsic validity’ relates to the rules of substantial law by which a jurisdiction determines the legality of a testamentary disposition, including the general capacity of the testator” (EPTL 3-5.1, subd [a], par [4]); “ ‘Effect’ relates to the legal consequences attributed under the law of a jurisdiction to a valid testamentary disposition” (EPTL 3-5.1, subd [a], par [5]).

        . That Report noted that the term “ ‘effect’ involves the legal consequences that flow from an otherwise valid provision of a will, such as the effect of * * * exclusion of a surviving spouse from testamentary benefits and the like” (Report, at p 630). The Report (at p 636) also referred to Matter of Cook (204 Misc 704, 705, affd 283 App Div 1047), which sustained the validity of the election provision in section 47 and held that the statute “affords residents of other jurisdictions a means of escaping onerous restrictions on the testamentary disposition of property imposed by the laws of their own domiciles.”

      . Equally unpersuasive is the argument that New York otherwise has a sufficient interest in protecting or regulating the rights of the nondomiciliaries before the court to justify disregarding the applicable French law. EPTL 3-5.1 (subd [b], par [2]) establishes the rule that, subject to subdivision (h), the “law of the jurisdiction in which the decedent was domiciled at death” determines the validity and effect of testamentary dispositions of personal property. Additionally, as was observed by the Clark court, the law to be invoked is that of the place that “has the predominant, if not the sole, interest in the protection and regulation of the rights of the person or persons involved” (21 NY2d 478, 486). A State does not obtain a sufficient interest when it is merely the place where the property is located rather than the domicile (id.). In this case the testatrix was domiciled in France and executed the will there. Philip, the objectant, is a French citizen, albeit domiciled in California, and the testamentary dispositions affect French beneficiaries. It seems clear that France has the only real and substantial interest in this controversy. Indeed, the only significant contact with New York is the presence of both the assets and the executors. That is not enough.


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    In the Matter of Carl R. Scacchetti, Jr., a Judge of the City Court of the City of Rochester, Petitioner, v State Commission on Judicial Conduct, Respondent.
    Argued June 7, 1982;
    decided June 17, 1982

      APPEARANCES OF COUNSEL

      Charles A. Schiano and Charles O. Baisch for appellant.

      Gerald Stern and Jean M. Savanyu for respondent.
   OPINION OF THE COURT

Memorandum.

The determination of the commission should be accepted and petitioner should be removed from office. Review of the record of the proceeding establishes beyond peradventure the propriety of the commission’s findings of fact and conclusions of law. There can be no question that, the commission’s determination having been made during petitioner’s term of office, this court has jurisdiction to accept that determination and order removal notwithstanding petitioner’s term of office has meanwhile expired by limitation of time (cf. Matter of Spector v State Comm. of Judicial Conduct, 47 NY2d 462). It is, moreover, implicit in the provision of section 47 of the Judiciary Law that removal of a Judge from office “shall render such judge ineligible to hold any other judicial office” that expiration of the Judge’s term neither moots the proceeding nor puts review by this court and the making of a removal order beyond its jurisdiction.

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

Determined sanction accepted, without costs, and Carl R. Scacchetti, Jr., is removed from the office of Judge of the City Court of the City of Rochester in a memorandum.


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    Sue V. Angeloff, Appellant, v Carl N. Angeloff, Respondent.
    Decided June 17, 1982

      APPEARANCES OF COUNSEL

      Raymond J. Pauley for appellant.

      Joel J. Goldman for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order modified, with costs to plaintiff, by denying defendant’s motion for partial summary judgment and, as so modified, affirmed. Although a separation agreement may be the basis of a conversion divorce even though substantial provisions of the agreement are unenforceable (Domestic Relations Law, § 170, subd [6]; Christian v Christian, 42 NY2d 63), such a divorce may not be granted if the agreement is void ab initio as the result of fraud, duress or incapacity. To hold otherwise would be to read out of subdivision (6) of section 170 the requirement that such a divorcé be based upon a separation agreement. The statute requires more than living separate and apart, for one year. Because the affidavits establish the existence of triable issues concerning the validity of the entire agreement, rather than simply a part of the agreement, there must be a trial.

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


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    In the Matter of Barbara S. Blumberg et al., Respondents, v Harry J. Siegel et al., Constituting the Board of Zoning Appeals of the Town of North Hempstead, et al., Appellants.
    Decided June 17, 1982
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals, § 12, pp 49-50).


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    Bruno Cappellini, as Administrator of the Estate of Haydee N. Machado, Deceased, Appellant-Respondent, v United Technology of New York et al., Respondents-Appellants. (And 30 Additional Actions.)
    Decided June 17, 1982
   Appeals and cross appeals dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order of the Appellate Division made on a prior appeal in the action [see 79 AD2d 593] does not satisfy the requirements of CPLR 5601 (subd [a], par [iii]) for an appeal as of right, in that the modification was not in a “respect, which is within the power of the court of appeals to review” (CPLR 5601, subd [d]; subd [a], par [iii]; Patron v Patron, 40 NY2d 582).


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    In the Matter of the Commissioner of Social Services of the City of New York, as Assignee of Guiliana S., Petitioner, v David R. S., Respondent. The Door — A Center of Alternatives, Appellant.
    Decided June 17, 1982
   On the court’s own motion, remittitur recalled and, when returned, it will be amended to read as follows: Order reversed, with costs, and the motion to compel compliance denied.

Opinion by Judge Jones in which Judges Jasen, Gabrielli, Wachtler and Fuchsberg concur. Judge Meyer concurs in a separate opinion in which Chief Judge Cooke concurs. [See 55 NY2d 588.]


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    Incorporated Village of Philmont, Respondent, v A. Colarusso & Son, Inc., et al., Appellants.
    Submitted May 10, 1982;
    decided June 17, 1982
   Motion for leave to appeal dismissed as to defendant Reliance Insurance Company on the ground that the order sought to be appealed from does not finaly determine the action within the meaning, of the Constitution; motion otherwise denied, with $20 costs and necessary reproduction disbursements.


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    In the Matter of Rye Town/King Civic Association et al., Appellants, v Town of Rye, Respondent. Atrium Associates, Intervenor-Respondent.

      Submitted April 19, 1982;
    decided June 17, 1982

      APPEARANCES OF COUNSEL

      J. Henry Neale, Jr., for appellants.

      Daniel J. Pykett for respondent.

      Daniel G. Donovan for intervenor-respondent.
   opinion of the court

Memorandum.

The motion for leave to appeal should be dismissed as untimely.

A party who has mistaken the method for obtaining appellate review is entitled to a 30-day extension of time within which to pursue the proper method of appeal (CPLR 5514, subd [a]). In such circumstances, however, an adverse party who initially did not either appeal as of right under CPLR 5513 (subd [a]), or move for leave to appeal under CPLR 5513 (subd [b]), or cross-appeal or cross-move for leave to appeal under CPLR 5513 (subd [c]), may not avail itself of the 10-day extension provided by CPLR 5513 (subd [c]).

Motion for leave to appeal dismissed in a memorandum, with twenty dollars costs and necessary reproduction disbursements to intervenor-respondent.


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    In the Matter of Zahid Abush Shahid, Also Known as Thomas Flowers, et al., Petitioners, and Jehan Abdur Raheem et al., Appellants, v Thomas Coughlin, III, as Commissioner of the New York State Department of Correctional Services, et al., Respondents.
    Argued June 8, 1982;
    decided June 23, 1982

      APPEARANCES OF COUNSEL

      Robert Selcov, Robert A. Kagan, Barbara Schneider Corner and David Leven for appellants.

      Robert Abrams, Attorney-General (Frederick R. Walsh and Peter H. Schiff of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, without costs, for reasons stated in the opinion by Presiding Justice A. Franklin Mahoney at the Appellate Division (83 AD2d 8). We note, however, that the Statute of Limitations referred to by the Appellate Division was not in effect at that time.

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


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    Heather Croft, Respondent, v National Car Rental, Appellant.
    Argued June 9, 1982;
    decided June 23, 1982

      APPEARANCES OF COUNSEL

      James A. Magee for appellant.

      Sally Weinraub and Bert W. Subin for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment appealed from and the order of the Appellate Division brought up for review should be reversed, with costs, and defendant’s motion to dismiss the complaint granted.

The complaint against defendant National Car Rental should have been dismissed on defendant’s motion for failure to state a cause of action under the law of Vermont. There is no basis on this record for choosing New York’s law over that of Vermont, the site of the accident, for determining the question whether an owner is vicariously liable for the negligence of a driver operating a car with the owner’s consent. Plaintiff and her husband, the driver whose negligence caused the accident, were both British citizens. The car was registered in Michigan to defendant, a Minnesota corporation doing business in New York. The car was rented in Montreal for return four days later to defendant’s New York City office. The contacts with New York are minimal. Moreover, plaintiff identifies no significant interest of New York in imposing on this owner vicarious liability for an injury when neither the injured party, the place of accident, nor the automobile have any connection with this State (cf. Neumeier v Kuehner, 31 NY2d 121).

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.


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    Howard Stores Corp., Appellant, v Foremost Insurance Company, Respondent.
    Argued June 10, 1982;
    decided June 23, 1982

      APPEARANCES OF COUNSEL

      Frank A. Weg, David Goldstein and Andrew C. Jacobson for appellant.

      Arthur N. Seiff and Max J. Gwertzman for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Justice Arnold L. Fein at the Appellate Division (82 AD2d 398).

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


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    The People of the State of New York, Appellant, v Milton Slaughter, Respondent.
    Argued June 11, 1982;
    decided June 23, 1982

      APPEARANCES OF COUNSEL

      Elizabeth Holtzman, District Attorney (James Kreindler of counsel), for appellant.

      Harvey A. Herbert and Leonard H. Kaplan for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The Appellate Division correctly determined that the proof was insufficient to sustain the conviction of second degree murder and possession of a sawed-off shotgun. The evidence at trial showed that Trevor Thompson was shot in the neck with a sawed-off shotgun wielded by Samuel Wysinger, who had an ongoing, violent dispute with Thompson. Defendant-respondent Milton Slaughter was a close friend of Wysinger.

A few minutes before the shooting, Thompson and several of his friends saw Wysinger, with a black bag under his arm, and Slaughter standing outside a bar. No words were exchanged as Thompson and his friends proceeded to a “disco” around the corner.

While awaiting admission, Thompson stepped outside the disco’s vestibule into the street. Just after the heavy metal door closed behind him, his friends heard a shotgun blast. They rushed out and saw Wysinger and an unidentified man fleeing. About one and one-half blocks away, Wysinger and the other man were joined by Slaughter, who had been observed running from the general area of the shooting with a pistol in his hand. Critically, no evidence placed Slaughter at the immediate site of the shooting.

The prosecutor’s only other evidence was of a possible motive. To that end, the People showed that, one hour before the murder, a Mercedes-Benz jointly owned by Wysinger and Slaughter had been burned by persons unknown. There was, however, no evidence that Slaughter believed Thompson to be responsible.

Thus, the prosecutor’s only evidence was that Slaughter was friendly with the killer; Slaughter was seen in the area several minutes before the shooting; and he was seen running away from the general area with a pistol immediately after the shooting. Nothing indicates that he knew either that Wysinger had the shotgun or intended to kill Thompson, or that he even saw the shooting.

The evidence simply is insufficient to permit all the inferences necessary to sustain the conviction (see People v Razezicz, 206 NY 249; People v Kennedy, 32 NY 141). Nothing shows intent, or complicity, or knowledge of the pending crime. Nor is there strong proof of motive. The conviction therefore was properly vacated.

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

Order affirmed in a memorandum.


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    Betsy L. Bliss, on Behalf of Christian A. B. Ach, Respondent, v Roger W. Ach, II, Appellant.
    Argued June 8, 1982;
    decided June 23, 1982

      APPEARANCES OF COUNSEL

      Robert Stephan Cohen, Deborah E. Bans and Richard C. Socarides for appellant.

      Peter E. Bronstein and Richard B. Wallace for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division which modified a judgment of Supreme Court, New York County, awarding primary custody of the parties’ child to petitioner, should be affirmed, with costs. The appeal from the order of the Appellate Division which, inter alia, unanimously affirmed an order of Supreme Court, New York County, denying respondent’s motion for a new trial should be dismissed, without costs, upon the ground that no appeal as of right lies from this order.

In this child custody proceeding, the trial court found that, although both parents are fit to raise the child, the welfare of the child would best be served by placing primary custody in the petitioner mother. Very important in this connection was the court’s determination that if the father were to receive primary custody, he would endeavor to fully integrate the child into his separate family, significantly downplaying the role of the child’s natural mother, jeopardizing both the child’s sense of identity and his relationship with his natural mother. A similar undesirable design on the part of the mother was not perceived. In seeking to effectuate the “first and paramount concern” of the best interests of the child (Eschbach v Eschbach, 56 NY2d 167; Obey v Degling, 37 NY2d 768), the trial court properly considered the effect that an award of custody to one parent might have on the child’s relationship with the other parent. The trial court’s factual findings on this issue, as affirmed by the Appellate Division, find support in the record, and therefore are not subject to further review by this court (Matter of Infant D., 34 NY2d 806; see, generally, Cohen and Karger, Powers of the New York Court of Appeals, pp 453-455).

Although the trial court awarded primary custody to the mother, it also provided for joint custody in the two parents, based upon a. finding that the parties were capable of cooperating to jointly raise the child and to provide for his needs as a common enterprise. We agree with the Appellate Division, however, that the existence of sharp differences between the parties makes an award of joint custody inappropriate. Such shared responsibility for and control of the child’s upbringing is not properly ordered where, as here, the parents have evidenced an inability to cooperate on matters concerning the child (see Braiman v Braiman, 44 NY2d 584).

Those remaining issues raised by respondent which are within the court’s power to review are without merit.

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

On the appeal from the order of the Appellate Division which modified the judgment of Supreme Court, New York County: Order affirmed, with costs.

On the appeal from the order of the Appellate Division which, inter alia, unanimously affirmed an order of the Supreme Court, New York County, denying a motion for a new trial: Appeal dismissed, without costs.


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    Maria Amato, Plaintiff, v Our Lady of Peace Roman Catholic Church, Defendant and Third-Party Plaintiff-Appellant. City of New York, Third-Party Defendant-Respondent.
    Argued June 10, 1982;
    decided June 23, 1982

      APPEARANCES OF COUNSEL

      Joseph D. Ahearn, Dennis P. Hannafey and Michael Majewski for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Debbie E. Sreter and Ronald E. Sternberg of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, third-party defendant’s motion for summary judgment denied, summary judgment granted in favor of third-party plaintiff against third-party defendant, and the case remitted to Supreme Court for a determination of the amount to be awarded in interest.

In 1972, Our Lady of Peace Roman Catholic Church leased to the City of New York its basement and 5,500 feet of outdoor play area for use by the city as a day care center. An indemnification provision in the lease reads as follows: “The Tenant agrees to save the Landlord harmless against all claims for injuries sustained by the Tenant’s employees and invitees connected with its use and occupancy of the premises. Tenant’s obligation in this respect shall apply to any acts of vandalism or malicious mischief causing physical damage to the structures and Tenant shall repair all such damages at its own cost and expense.”

In 1974, a teacher at the day care center was injured when she tripped and fell on broken pavement in the church parking lot. This portion of the church property had not been specifically leased to the city and it is conceded that the accident arose out of the church’s negligence. The church settled an action brought against it by the teacher and now, in its third-party claim against the city, maintains that it is entitled to indemnification from the city.

We believe that the language in the clause requiring the city to indemnify the church for “all claims for injuries sustained by the Tenant’s employees and invitees connected with its use and occupancy of the premises” compels the conclusion that the city assumed an obligation to indemnify the church in this instance. We cannot agree with Supreme Court’s determination that the indemnification clause was intended to protect the church only from liability due to vandalism and malicious mischief; the second sentence of the provision does not limit the first; rather it imposes an additional obligation. Summary judgment was therefore improperly granted to the city and, since no factual issues exist concerning the scope of the indemnification agreement, summary judgment should be granted to the third-party plaintiff.

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

Order reversed, with costs, third-party defendant’s motion for summary judgment denied, summary judgment granted in favor of third-party plaintiff against third-party defendant, and case remitted to Supreme Court, Kings County, for further proceedings in accordance with the memorandum herein.


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    The People of the State of New York, Respondent, v Gonzalo Gonzales, Appellant.
    Argued June 11, 1982;
    decided June 23, 1982

      APPEARANCES OF COUNSEL

      Claude Castro for appellant.

      Elizabeth Holtzman, District Attorney (Allan Root, Barbara D. Underwood and Beth S. Lasky of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant’s contention that the trial court committed reversible error in rereading its original charge on certain legal concepts after the jury had requested clarification of those concepts in “layman’s terms” is not properly preserved, as defendant failed to object or except to the trial court’s supplemental charge. Defendant’s failure to make his objection known at a time when the error, if any, could be remedied, precludes review by this court (People v Duncan, 46 NY2d 74, 80, cert den 442 US 910).

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

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

Order affirmed in a memorandum.


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    Jay F. Gordon et al., Respondents, v Incorporated Village of Lawrence, Appellant.
    Argued June 9, 1982;
    decided June 23, 1982

      APPEARANCES OF COUNSEL

      Jerome Cooper for appellant.

      Jay F. Gordon, respondent pro se, and for Eleanor Gordon, respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (84 AD2d 558).

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


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    In the Matter of Judith Seidner, Respondent, v Town of Islip et al., Appellants, et al., Defendant.

      Argued June 11, 1982;
    decided June 23, 1982

      APPEARANCES OF COUNSEL

      William R. Bennett, Town Attorney (Lark J. Shlimbaum of counsel), for appellants.

      Werner J. Zumbrunn for respondent.

      Robert Abrams, Attorney-General (Peter H. Schiff, James A. Sevinsky and Lawrence A. Rappoport of counsel), for Commissioner of Environmental Conservation of the State of New York and another, amici curiae.

   OPINION OF THE COURT

Memorandum.

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

We agree with both courts below that section 68-59.1 of the Town Code of the Town of Islip (commonly known as the “Dune District” ordinance) is unconstitutional as applied to this plaintiff’s property. The operative provision of the code, applicable to the Dune District in which plaintiff’s lot is located, is the following: “No structure shall be erected or used or occupied by any person except as an elevated pedestrian dune crossing or a fence of a type approved by the Town of Islip which is designed to hold or increase the dune.”

A house had been constructed on plaintiff’s premises in 1958 where it remained until it was washed out to sea by a violent storm on February 6, 1978. When plaintiff applied for a building permit to rebuild her house she was confronted with the Dune District ordinance. Her application was denied and this action ensued.

The town has tendered no proof in evidentiary form sufficient to require a trial with respect to the determination of both courts below that the restriction of construction on plaintiff’s property to “an elevated pedestrian dune crossing” or “a fence of a type approved by the Town of Islip which is designed to hold or increase the dune”, deprives plaintiff of all practical use of her property to which it is reasonably adapted. The restriction is, therefore, confiscatory and thus would work such a substantial deprivation of plaintiff’s use of her property, without just compensation, as to violate the due process clauses of our Federal and State.Constitutions (Arverne Bay Constr. Co. v Thatcher, 278 NY 222; Welt v Town of Islip, 78 AD2d 638). The fact that the United States Department of the Interior offered plaintiff $17,500 for her property in 1978 (in contemplation of projected condemnation which never materialized) after her dwelling had been destroyed and after the enactment of the Dune District ordinance does not require a different conclusion. That the Federal Government might at one time have been willing to pay this amount for the property does not overcome the very, narrowly restricted uses to which the land might be put under the ordinance.

The issue is not whether the town may constitutionally so restrict plaintiff’s land “to preserve the ecology of the dunes and grasses and by doing so to safeguard life and property”, but whether it can do so without according plaintiff just compensation. We agree that it cannot.

On the record there has been no tender of proof in evidentiary form that there has been a change in the high water mark that would provide a predicate for the town’s jus publicum argument.

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

Order affirmed, with costs, in a memorandum.


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    The People of the State of New York, Respondent, v Brett Cadorette, Appellant.
    Argued June 7, 1982;
    decided June 23, 1982

      APPEARANCES OF COUNSEL

      Darren O’Connor and William E. Hellerstein for appellant.

      Thomas R. Sullivan, District Attorney (George E. McVay and Anthony L. Galante of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Our review of the record reveals that the evidence presented at trial is sufficient to support defendant’s conviction for attempted murder. Defendant’s other contention regarding alleged errors in the trial court’s charge to the jury has not been preserved for our review insofar as no exception to the charge was taken at trial (People v Thomas, 50 NY2d 467).

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

Order affirmed in a memorandum


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    The People of the State of New York, Respondent, v Anthony O’Brien, Appellant.
    Argued June 8, 1982;
    decided June 23, 1982

      APPEARANCES OF COUNSEL

      Robert S. Dean and William E. Hellerstein for appellant.

      John J. Santucci, District Attorney (Deborah Carlin Stevens of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

When defendant entered a plea of guilty he forfeited his right to claim that he was deprived of a speedy trial under CPL 30.30 (People v Suarez, 55 NY2d 940). Nor may defendant preserve his statutory speedy trial claim for appellate review by obtaining the consent of the prosecutor and the approval of the court at the time the plea is entered (People v Di Raffaele, 55 NY2d 234).

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

Order affirmed in a memorandum.


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    Robert Feldman, Appellant, v New York City Health & Hospitals Corporation, Respondent.
    Argued June 10, 1982;
    decided June 23, 1982

      APPEARANCES OF COUNSEL

      Thomas R. Newman and Louis G. Adolf sen for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Alfred Weinstein, Leonard Koerner and Stephen M. Clayton of counsel), for respondent.
   OPINION OF THE COURT

Order reversed, with costs, and the order of Supreme Court, Kings County, reinstated for the reasons stated in the opinion of Justice Irving S. Aronin at Special Term (107 Misc 2d 145).

Concur: Chief Judge Cooke and Judges Gabrielli, Wachtler, Fuchsberg and Meyer. Judges Jasen and Jones dissent and vote to affirm for the reasons stated in the opinion by former Justice Samuel Rabin at the Appellate Division (84 AD2d 166).


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    The People of the State of New York, Respondent, v Rafael Michel, Appellant.
    Argued June 11, 1982;
    decided June 23, 1982

      APPEARANCES OF COUNSEL

      Jonathan Golomb and William E. Hellerstein for appellant.

      Robert M. Morgenthau, District Attorney (Julie Copeland and Vivian Berger of counsel), for respondent.
   opinion of the court

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant contends that the prosecution was required to serve statutory notice of its intention to introduce his written confession into evidence at trial (CPL 710.30). The statute, however, expressly permits the trial court to dispense with the notice requirement “[f]or good cause shown” (CPL 710.30, subd 2). Here the confession itself was negotiated, drafted, and signed by both the defendant and his attorney and specifically stated that it was “going to be used in court”. Moreover it was clear to the defense that the confession was an integral part of the agreement ultimately concluded and that a default on defendant’s part would result in prosecution and use of the confession. Under these circumstances we cannot say that the trial court erred as a matter of law in finding that the defense had actual notice of the prosecution’s intent to introduce the confession at trial and, therefore, good cause for dispensing with the statutory notice requirement.

We have reviewed the other contentions raised by the defendant on appeal and find them to be without merit.

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

Order affirmed in a memorandum.


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    New York Fruit Auction Corporation, Appellant, v City of New York, Respondent.
    Argued June 9, 1982;
    decided June 23, 1982

      APPEARANCES OF COUNSEL

      Kim J. Landsman, Barrington D. Parker, Jr., and Anthony M. Radice for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Judah Dick and Leonard Koerner of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff’s allegations of fraudulent misrepresentations are fatally inadequate, among other reasons, because the alleged representations, “more precatory than promissory”, at best were only unenforceable misrepresentations of future intent (cf. Woodmere Academy v Steinberg, 41 NY2d 746, 752). Moreover, none of the alleged representations are included in the lease approved, as required, by the New York City Charter (§ 704, subd [g]).

Finally, because the representations claimed permeated all the causes of action, including the otherwise conclusorily pleaded one based on unconscionability, the Appellate Division properly dismissed all four pursuant to CPLR 3211 (subd [a], par 7).

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

Order affirmed, with costs, in a memorandum.


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    James Trakis, Respondent, et al., Claimant, v City of New York, Appellant.
    Decided June 23, 1982

      APPEARANCES OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Marjorie E. Bornes, of counsel), for appellant.

      Peter E. De Blasio for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order reversed, with costs, and the matter remitted to the Appellate Division, Second Department. Though it was improper for Special Term to deny claimant James Trakis’ application on the basis of his wife’s ability to file a notice of claim on his behalf (Matter of Rosenberg v City of New York, 309 NY 304), it cannot be said that claimant’s affidavit, portions of which were controverted by the city, required the granting of the application as a matter of law. For this reason, there must be a reversal of the Appellate Division order and a remittal to that court for its further consideration on the facts and in the exercise of discretion.

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


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    In the Matter of the Town of Hempstead, Appellant, Relative to Acquiring Title to Real Property for Park Purposes at Point Lookout in the Vicinity of Sea Spray Drive East in the Town of Hempstead. Malibu Associates, Inc., et al., Respondents. In the Matter of the Town of Hempstead, Appellant, Relative to Acquiring Title to Real Property for Park Purposes near Point Lookout Malibu in the Town of Hempstead. Malibu Associates, Inc., et al., Respondents.
    Argued June 9, 1982;
    decided June 23, 1982

      APPEARANCES OF COUNSEL

      George J. Farrell, Jr., Frank A. Fritz, Jr., and Kenneth Henrie for appellant.

      Howard T. Hogan, Howard Thomas Hogan, Jr., and Julius L. Sackman for Malibu Associates, Inc., respondent.

      Michael Bradie for Ovide E. de St. Aubin and another, respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the matter remitted to that court for consideration of the facts.

The Appellate Division reversed Special Term’s award, on the law, based upon residential use as the highest and best use, because Special Term made no award for improvements with a sound value in excess of $1,000,000. The basis for Special Term’s denial of an award for improvements was that the “improvements impeded the highest and best use of the land.” The Appellate Division reversed because “where improvements inconsistent with the best use of the land are nonetheless utilized by the condemnor for the purpose for which they had been erected, the value of the improvements must be compensated” (81 AD2d, p 592), but refused to permit Special Term on remand to reconsider land value as well.

The Appellate Division’s ruling on the law was error. If the value of the improvements is to be considered because the property continues to be used with the improvements, then the award for the land must take into consideration that the land is burdened with that use. The condemnor may be required to pay on the basis of a highest and best use other than the actual use without improvements inconsistent with that use or on the basis of the land value in light of the actual use plus improvements. The condemnee is not, however, entitled to improvements plus land valued on a higher basis than the use with those improvements permits. Because the Appellate Division erred on the law, it did not consider the Special Term decree on the facts. The case is, therefore, remitted to the Appellate Division for consideration of the facts.

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

Order reversed, with costs, and matter remitted to the Appellate Division, Second Department, for further proceedings in accordance with the memorandum herein. Question certified answered in the negative.


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    In the Matter of Aetna Casualty & Surety Company, Respondent, v Mildred Dawson et al., Appellants.
    Argued June 10, 1982;
    decided June 23, 1982

      APPEARANCES OF COUNSEL

      Bertram Herman for appellants.

      L. Kevin Sheridan and J. Robert Morris for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (84 AD2d 708).

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


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    Park Summit Realty Corp., Appellant, v Len Frank et al., Respondents.
    Decided June 23, 1982

      APPEARANCES OF COUNSEL

      M. William Scherer for appellant.

      George R. Osborne for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order affirmed, with costs. A notice to cure was required whether the proceeding be as a holdover after termination of tenancy (RPAPL 711, subd 1; Code of Metropolitan Hotel Industry Stabilization Assn. [Hotel Code], §§ 50, 53, subd [a]) or as a nonpayment proceeding (RPAPL 711, subd 2; Hotel Codé, § 50).

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


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    In the Matter of Francis Sudano, Appellant, v Waterfront Commission of New York Harbor, Respondent.
    Decided June 23, 1982

      APPEARANCES OF COUNSEL

      Robert H. Bogucki for appellant.

      Gerald P. Lally and Robert A. Pin for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (87 AD2d 633).

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


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    Dora Barrick, Respondent, v Meryle Barrick, as Administratrix of the Estate of Robert Barrick, Deceased, Appellant.
    Submitted June 7, 1982;
    decided June 23, 1982
   Motion to vacate the Court of Appeals order of dismissal dated May 20, 1982 denied. [See 56 NY2d 802.]


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    Neftali Gomez, Appellant, v Blanca R. F. Gomez, Respondent.
    Submitted June 14, 1982;
    decided June 23, 1982
   Motion for clarification of the Court of Appeals May 13, 1982 decision and for a stay denied in each respect. [See 56 NY2d 746.]


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    Mark M. Grimes et al., Appellants, v Matton Shipyard, Inc., Respondent.
    Decided June 23, 1982
   Appeal dismissed, without costs, by the Court of Appeals sua sponte. A direct appeal does not lie from a nonfinal order denying a motion for a preliminary injunction; nor does a direct appeal lie where questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3, subd b, par [2]; CPLR 5601, subd [b], par 2).


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    In the Matter of Aida Hernandez, Appellant, v Department of Housing Preservation and Development, Office of Rent Control, Respondent.
    Submitted May 3, 1982;
    decided June 23, 1982
   Motion for leave to appeal dismissed and, on the court’s own motion, appeal taken as of right pursuant to CPLR 5601 (subd [b], par 1) dismissed, without costs, each upon the ground that the Appellate Division order does not finally determine the proceeding within the meaning of the Constitution.


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    The People of the State of New York, Respondent, v Alton Lee, Appellant.
    Decided June 23, 1982
   Appeal dismissed, by the Court of Appeals sua sponte, upon the ground that it does not lie as of right (CPL 450.90, 460.20).


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    Betty O. Muka et al., Appellants, v County of Tompkins, Respondent.
    Decided June 23, 1982
   Appeal dismissed, without costs, by the Court of Appeals sua sponte. A direct appeal does not lie where questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3, subd b, par [2]; CPLR 5601, subd [b], par 2).


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    In the Matter of New York State Association of Plumbing-Heating-Cooling Contractors, Inc., Respondent, v John C. Egan, as Commissioner of General Services of the State of New York, et al., Appellants.
    Submitted May 10, 1982;
    decided June 23, 1982
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and is not within the curative intent of CPLR 5602 (subd [a], par 2).


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    Austin Willis, Appellant, v Robert Howard, Individually and as Sheriff of Tompkins County, Respondent.
    Decided June 23, 1982
   Appeal dismissed, without costs, by the Court of Appeals sua sponte. A direct appeal does not lie from an order which does not finally determine the action within the meaning of the Constitution; nor does a direct appeal lie where questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3, subd b, par [2]; CPLR 5601, subd [b], par 2).