text:
    In the Matter of the Claim of David L. Hawthorne, as Administrator of the Estate of Frederick Hawthorne, Deceased, Respondent, v Peartrees, Inc., et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued October 7, 1977;
    decided November 15, 1977

      APPEARANCES OF COUNSEL

      Philip J. Caputo for Peartrees, Inc., and another, appellants.

      William F. Fischer, Jr., and Martin Krutzel for O’Keefe Auto Service Corporation and another, appellants.

      David Hirschhorn for David L. Hawthorne, respondent.

      Louis J. Lefkowitz, Attorney-General (Morris N. Lissauer, Ruth Kessler Toch and Daniel Polansky of counsel), for Workmen’s Compensation Board, respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (56 AD2d 961).

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


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of the Arbitration between Country-Wide Insurance Company, Appellant, and Roberto Barrios, Respondent.
    Argued October 6, 1977;
    decided November 15, 1977
    APPEARANCES OF COUNSEL

      Bernard Samuels and Eric M. Alderman for appellant.

      Maurice Chayt for respondent.
   OPINION OF THE COURT

Memorandum.

Order affirmed, with costs. Attorneys’ fees allowable under the regulations (11 NYCRR 65.6 [g] [1]) of the Comprehensive Automobile Insurance Reparations Act (Insurance Law, art 18) are "based upon the reasonable value of the legal work performed in obtaining the recovery” and not the amount in controversy. It is the arbitrator who is empowered to evaluate legal services (Insurance Law, § 675).

There is nothing in the record to warrant disturbing the award (cf. Matter of Torano [MVAIC], 15 NY2d 882, affg 19 AD2d 356).

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

Order affirmed.


text:
    The People of the State of New York, Respondent, v Loretta Lloyd, Appellant.
    Argued October 4, 1977;
    decided November 15, 1977

      APPEARANCES OF COUNSEL

      Harry D. Hersh, James J. McDonough and Matthew Muraskin for appellant.

      Denis Dillon, District Attorney (Judith K. Rubinstein and William C. Donnino of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

Order affirmed. On the record here, the trial court did not abuse its discretion in denying defendant’s application, made at the commencement of the trial, for disclosure of the identities of the two informers (People v Pena, 37 NY2d 642; see, also, People v Lee, 39 NY2d 388; People v Colon, 39 NY2d 872; People v Goggins, 34 NY2d 163, cert den 419 US 1012).

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

Order affirmed in a memorandum.


text:
    Roger C. Tabolt et al., Doing Business as Mohawk Boiler Service, Appellants, v KMZ Enterprises, Inc., Doing Business as Colgate Inn, et al., Defendants, and Hamilton Associates, Inc., et al., Respondents.
    Argued October 11, 1977;
    decided November 15, 1977

      APPEARANCES OF COUNSEL

      Ira M. Ball for appellants.

      Joseph J. Pileckas for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons' stated in the memorandum at the Appellate Division (52 AD2d 995).

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


text:
    George A. McLeod et al., Appellants-Respondents, v Fabioleon Marin, Respondent-Appellant, and Francisco Casanova et al., Respondents.
    Submitted October 12, 1977;
    decided November 15, 1977

      APPEARANCES OF COUNSEL

      Herbert Minster for appellants-respondents.

      Stanley H. Kaufman for respondent-appellant.

      Francis A. Wade and Edward L. Milde for respondents.
   OPINION OF THE COURT

Order affirmed, with costs to defendants Casanova against plaintiffs, on the memorandum at the Appellate Division (54 AD2d 559). Question certified answered in the affirmative.

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


text:
    Merritt-Chapman & Scott Corporation and Mount Vernon Contracting Corporation, a Joint Venture, Appellant, v State of New York, Respondent.
    (Claim No. 49660.)
    Argued October 6, 1977;
    decided November 15, 1977

      APPEARANCES OF COUNSEL

      Walter B. Solinger, II, Carl E. Buckley, Jerome Beaudrias and George W. Scapolito for appellant.

      Louis J. Lefkowitz, Attorney-General (Richard J. Dorsey and kuth Kessler Toch of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

On December 8, 1961 claimant entered into a contract with the State of New York for the reconstruction of certain highways in Queens County. One of the thoroughfares ran through the site of the 1964 World’s Fair and among the structures to be worked upon were three pedestrian overpasses serving World’s Fair facilities. The area of performance was urban and heavily trafficked. Bidders had been advised that there might be delays or interference in the work and that it might not be possible to perform in the most efficient or orderly manner. An October 30, 1963 completion date was set.

In early 1962, claimant fell behind its own schedule and in the spring the State urged that claimant commence work on the main interchange which was a key to shifting traffic at one point in construction. In the summer, also of that year, when claimant continued to be behind and was not achieving the percentage of work necessary to finish the project on time, the State directed claimant to augment its work force so as to meet the date set by contract. In July, the State Department of Public Works met with various contractors on World’s Fair highway projects, including claimant, advising them that their highway work must be completed for the Fair’s opening in 1964. At a meeting at the end of August, the department informed claimant that no extensions would be granted. The task was not completed by the agreed upon date and four extensions of time totaling over 10 months from that date actually were granted by the State. Substantial completion of the project was attained on December 31, 1963 when it was opened to traffic, the last work was done by claimant on September 14, 1964 and the State accepted the undertaking by letter of October 29, 1964.

Claimant filed a claim, consisting of 39 "causes of action”, in which it asked over seven million dollars in damages. The first cause, for money due on a conceded balance, was severed and reduced to judgment under which interest on the severed cause was reserved to this claim. The second was for breach of the over-all contract and sought cost damages of over six and one-half million dollars on a quantum meruit basis. The third and subsequent causes were pleaded in the alternative to the second, asserting various allegations of breach of contract by the State and seeking damages for different items of contract performance.

Following trial before one Judge of the Court of Claims, the claim was referred by stipulation to another member of said court for decision. That court found that the State primarily contributed to the delay by forcing claimant to progress the project out of sequence, that the State interfered with claimant’s work by refusing an extension of time and that such interference was a breach of contract. The second cause was dismissed because the court was unwilling to accept the proof of damages. Most of the separate claims were allowed and claimant was awarded, besides interest on the first cause, $2,888,026.60 for all damages, with statutory interest.

The Appellate Division modified by reducing the award, aside from the award for interest on the first cause, to $59,043.59, with appropriate interest. The findings of the Court of Claims that the State was guilty of breach of contract because of inordinate delays which entitled claimant by the summer of 1962 to an extension of an additional construction season and that the State’s failure to grant an extension was an improper interference with claimant’s contract were set aside. New findings were made that the State was not guilty of a breach of contract as it did not cause claimant undue delays, that some delays experienced by claimant were caused by its own ineptness and inexperience in road construction. Other delays were inherent in the complex project assumed by claimant under the contract terms and were occasioned by third parties for whom the State was not responsible.

Essentially, the dispute was factual in nature and the courts which have passed upon the matter have resolved the factual issues differently. We opt for the findings and determination arrived at by the Appellate Division for the reasons stated in its opinion.

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

Order affirmed.


text:
    Harold J. Rosen Trust, Respondent-Appellant, v Maurice L. Rosen et al., as Surviving Partners Doing Business under the Name Rosen Brothers, Appellants-Respondents.
    Argued October 11, 1977;
    decided November 15, 1977

      APPEARANCES OF COUNSEL

      Donald J. Kemple for appellants-respondents.

      John J. Dee and Robert J. Hunt for respondent-appellant.
   OPINION OF THE COURT

Order affirmed, with costs to plaintiff, for reasons stated in the opinion by Mr. Justice Reid S. Moule at the Appellate Division (53 AD2d 342).

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


text:
    Francis A. Dziurak, Appellant, v Chase Manhattan Bank, N. A., Respondent.
    Submitted September 26, 1977;
    decided November 16, 1977
   Motion to dismiss the appeal or to stay its prosecution denied in each respect.


text:
    Marion L. Korn, Respondent, v New York Property Insurance Underwriting Association, Appellant, and Aetna Casualty and Surety Company, Respondent.
    Submitted October 11, 1977;
    decided November 15, 1977
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, (1) upon the ground that the order appealed from, insofar as it affirmed the dismissal of the affirmative defense, does not finally determine the action within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals, § 40, p 161) and (2) upon the ground that movant is not aggrieved by the order sought to be appealed from insofar as it affirmed the dismissal of the complaint against the codefendant (Cohen and Karger, Powers of the New York Court of Appeals, § 91, p 393).


text:
    In the Matter of the City of Schenectady, Respondent, v Clifford J. Kearney, Appellant.
    Submitted September 26, 1977;
    decided November 15, 1977
   Motion to dismiss the appeal herein granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that appellant is not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]).


text:
    The People of the State of New York, Respondent, v Randolph Peter Tompkins, Appellant.
    Submitted October 17, 1977;
    decided November 15, 1977
   Motion to dismiss the appeal herein denied.


text:
    Mitchell Comiskey, an Infant, by Leo Comiskey, His Guardian, et al., Appellants, v Myron Arlen et al., Respondents. Louis J. Lefkowitz, as Attorney-General of the State of New York, Intervenor-Respondent.
    Argued October 11, 1977;
    decided November 17, 1977

      APPEARANCES OF COUNSEL

      Bernard Turkewitz and Norman E. Frowley for appellants.

      John L. A. Lyddane, Steven De Maggio and Raymond W. Murphy for Myron Arlen, respondent.

      Barbara Pilo and Thomas R. Newman for Brooklyn Jewish Hospital, respondent.

      Louis J. Lefkowitz, Attorney-General (Daniel M. Cohen and Samuel A. Hirshowitz of counsel), in his statutory capacity under section 71 of the Executive Law.
   OPINION OF THE COURT

Memorandum.

Order affirmed, with costs. The formal written recommendation of the medical malpractice panel should not be suppressed on pretrial application. It was premature prior to trial, which might never take place, and which, if it does, might not give rise to considering the issue. And even if the issue arises, it might not result in prejudice to plaintiff. Moreover, issues of constitutionality should not be reached unnecessarily (cf., e.g., Matter of Peters v New York City Housing Auth., 307 NY 519, 527-528). If after trial, and despite the panel’s recommendation of no liability, plaintiff recovers a large judgment, it might no longer matter whether section 148-a of the Judiciary Law establishing the panels deprives a plaintiff of any constitutional rights, or, constitutionality aside, whether the panel made an improper determination on an inadequate basis.

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

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


text:
    W. Eugene Hedley et al., Appellants, v State University of New York et al., Respondents.
    Argued October 11, 1977;
    decided November 17, 1977

      APPEARANCES OF COUNSEL

      Richard F. Bellman and Eugene G. Eisner for appellants.

      Louis J. Lefkowitz, Attorney-General (Emanuel M. Kay and Samuel A. Hirshowitz of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

Order affirmed, with costs. Amendment of the master plan is not a prerequisite to desisting from fulfilling parts of the plan. The statutes, as noted by Mr. Justice Titone in his concurring opinion before the remand to Special Term (54 AD2d 891), evince "that the master planning process for the development and expansion of higher education in the State is authorizing and permissive rather than mandatory and directive. The statutes in question deal primarily with long-range goals and priorities; they do not mandate either that specific educational programs be created under the master plan or that any such programs already in existence be abolished thereunder” (see Education Law, §§ 237, 354). Hence, elimination by the State University trustees, with the implied acquiescence of the Legislature, of the elementary education program at the State University at Stony Brook did not require amendment of the master plan, or invocation of the procedures provided by law for such amendment.

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

Order affirmed.


text:
    Sheldon H. Solow, Appellant, v City of New York et al., Respondents
    Argued October 13, 1977;
    decided November 17, 1977

      APPEARANCES OF COUNSEL

      Daniel Eisenberg and Kevin L. Smith for appellant.

      W. Bernard Richland, Corporation Counsel (L. Kevin Sheridan of counsel), for City of New York, respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the opinion by former Presiding Justice Harold A. Stevens at the Appellate Division (49 AD2d 414).

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


text:
    Ohio Casualty Group, Appellant, v Rocco Avellini, Respondent.
    Argued October 14, 1977;
    decided November 17, 1977

      APPEARANCES OF COUNSEL

      Patricia D'Alvia for appellant.

      Bernard Meyerson for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (54 AD2d 632).

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


text:
    The People of the State of New York, Respondent, v Robert N. Middleton, Appellant.
    Submitted October 14, 1977;
    decided November 17, 1977

      APPEARANCES OF COUNSEL

      Joseph R. Brennan for appellant.

      Daniel T. Smith, District Attorney, for respondent.
   OPINION OF THE COURT

Order affirmed on the memorandum at the Appellate Division (50 AD2d 1040).

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


text:
    The People of the State of New York, Respondent, v Ronnie I. Irvin, Appellant.
    Submitted October 11, 1977;
    decided November 17, 1977
    APPEARANCES OF COUNSEL

      Peter L. Yellin, Public Defender (Stephen G. Cheikes of counsel), for appellant.

      Lawrence T. Kurlander, District Attorney (Michael Nelson of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

There is sufficient proof to sustain the jury’s implicit finding that in the early morning hours of October 19, 1973 an attempt had been made to break into the grocery store at 58 Lowell Street. In prompt response to the ensuing police call, Detective Evans, with a fellow officer, finding no one in front of the building, went to the rear. They heard whispering and discerned two figures in the back yard two buildings to the west. On being discovered the two figures fled, and the officers gave unsuccessful chase. There is likewise sufficient proof to support a finding that defendant was one of the whispering fugitives.

The fatal deficiency in the People’s case is the absence of any proof linking the whispering defendant to the attempted break-in. There was good evidence bridging this gap as to the codefendant, Ogden. Ogden was apprehended just a few moments later, and after being identified as one of the whisperers was arrested, given his rights and in an admissible confession told Detective Evans that he had gone with another person to enter 58 Lowell Street and to remove money and some food. As they were at the door prying on the hasp, headlights shone on them, they ran around the building to hide, later were accosted and fled. On request of defendant’s counsel, the trial court instructed the jury that this confession was admissible only against the defendant Ogden and could not in any way be used against defendant Irvin. With this evidence excised (and the People invite our intention to no other evidence), there remains no proof to connect defendant with the attempted break-in. Any inference which might be drawn from the fact that defendant was found in the back yard two buildings away is not sufficient to meet the requirements for circumstantial proof. His flight, normally a probative circumstance, in this instance could equally well be attributed to defendant’s having been discovered as an early morning trespasser.

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

Order reversed, etc.


text:
    In the Matter of Grace Amos, Respondent, v Board of Education of Cheektowaga-Sloan Union Free School District, Appellant.
    Argued October 12, 1977;
    decided November 17, 1977

      APPEARANCES OF COUNSEL

      Albert J. Rydzynski for appellant.

      J. Michael Eadry, Bernard F. Ashe and Richard C. Heffern for respondent.
   OPINION OF THE COURT

Memorandum.

The final determination of the board of education (and thus the order of the Appellate Division entered Nov. 12, 1976) should be affirmed, with costs, for the reasons stated in the opinion of Mr. Justice Harry D. Goldman at the Appellate Division (54 AD2d 297; cf. Matter of Steele v Board of Educ., 53 AD2d 674, affd 42 NY2d 840).

This case persuades us again that there would be advantage in legislative review of the presently applicable provisions of the Education Law. Those provisions, designed in large part for other times, impose very great strictures on the authority of a board of education, responsible to assure optimum educational opportunities, to respond to the necessity of reduction of personnel in ways consistent with its obligations to the pupils, the teachers and the community (cf. Matter of Chauvel v Nyquist, 43 NY2d 48; and Matter of Ward v Nyquist, 43 NY2d 57, both decided herewith).

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

Determination affirmed, with costs, in a memorandum.


text:
    In the Matter of the Adoption of David A. C. (Anonymous). Kazim M. et al., Respondents; Abdiel C., Appellant. In the Matter of the Adoption of Denise C. (Anonymous). Kazim M. et al., Respondents; Abdiel C., Appellant.
    Argued October 13, 1977;
    decided November 17, 1977
    APPEARANCES OF COUNSEL

      Robert H. Silk for appellant.

      Morris Schulslaper for respondent.
   OPINION OF THE COURT

Memorandum.

Appeal dismissed, with costs. The purportedly direct and dispositive constitutional issues underlying this appeal are no more than a restatement of questions whose merit has been clearly resolved against appellant’s position (Matter of Malpica-Orsini, 36 NY2d 568, app dsmd sub nom. Orsini v Blasi, 423 US 1042), and must be held to lack the degree of substantiality necessary to sustain this appeal as of right under CPLR 5601 (subd [b], par 1) (Tabankin v Codd, 40 NY2d 893; People ex rel. Uviller v Luger, 38 NY2d 854; see NY Const, art VI, § 3, subd b). Accordingly, it must be dismissed (Cohen and Karger, Powers of the New York Court of Appeals, § 55, p 254).

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

Appeal dismissed.


author: Per Curiam.

text:
    Michael Duff, Inc., Appellant, v Fair Housing Development Fund Corporation et al., Respondents, et al., Defendant.
    Submitted October 4, 1977;
    decided November 17, 1977

      APPEARANCES OF COUNSEL

      Reuben R. Kaufman for appellant.

      John P. Kle for Fair Housing Development Fund Corporation, respondent.
   OPINION OF THE COURT

Per Curiam.

The order of the Appellate Division should be modified by granting plaintiffs motion for a default judgment against defendant Northwood Projects, Inc. (Northwood).

Defendant Fair Housing Development Fund Corp. (Fair Housing) is a not-for-profit corporation created for the purpose of building low and middle income housing, and under the provisions of the National Housing Act, it entered into an agreement with the Department of Housing and Urban Renewal (HUD) whereby Fair Housing was to construct a project in Glen Cove, and HUD was to provide a full guarantee for all construction costs. All funds are held by HUD, and can only be paid if HUD determines that the contractual terms have been fulfilled.

The general contractor for the project, Northwood, subcontracted certain of the work to Michael Duff, Inc. (Duff). Fair Housing and HUD have refused to pay Northwood the full amount allegedly due for the work done by Northwood and its subcontractor Duff, and Northwood, in turn, has failed to pay Duff. Fair Housing and HUD have refused payment on the ground that an improper relationship exists between North-wood and Duff in that Duff had an interest in Northwood which was never revealed to Fair Housing in violation of the contract. It appears uncontested that the owner of Duff is also a minority shareholder in Northwood. At any rate, Duff commenced this action seeking to foreclose its lien on the project, as well as a deficiency judgment against Northwood.

Fair Housing appeared, and moved to vacate the lien. Northwood served a notice of appearance, admitted in a letter to Duff that the money was due Duff, and then defaulted. At that point, Duff then cross-moved, seeking, inter alia, entry of a money judgment against Northwood and a severance of the foreclosure action against Fair Housing. Fair Housing opposed the cross motion, contending that triable issues of fact exist with respect to the relationship between Northwood and Duff.

The trial court vacated the lien and denied the cross motion. For some reason it treated Duff’s cross motion as one for summary judgment rather than for the entry of a default judgment, and found that triable issues of fact do exist. The Appellate Division affirmed, stating with respect to the denial of the cross motion that: "It was proper to deny plaintiff’s cross motion for a money judgment on default because of the factual issues”. Interestingly, defendant Fair Housing never served a third-party claim against Northwood nor, indeed, has it otherwise pursued any such claim against Northwood.

We agree with the Appellate Division that the lien was properly vacated. We see no reason, however, why Duff should not be allowed to enter a default judgment against North-wood. Clearly, Northwood has defaulted; it has never served an answer, and has had no part in this action since its initial notice of appearance. It has not appeared before any of the courts which have considered the case and it has never made any attempt to oppose entry of a default. The only opposition to entry of a default against Northwood has come from its codefendant, Fair Housing, and it is apparently concerned lest Duff somehow be able to use a default judgment against Northwood as a means of bettering its position with respect to whatever claim it may have against the HUD funds. There appears to be no basis for this fear.

Admittedly, as a judgment creditor of Northwood, Duff would be entitled to use the normal methods of enforcing a money judgment, including attachment of any debts owed to Northwood by Fair Housing and HUD. Thus, its position is improved to the extent that it will now be able to proceed directly against the parties which actually have the money it claims. Moreover, as a judgment creditor of Northwood, Duff will have certain advantages over those of Northwood’s other creditors who have not obtained judgments against North-wood. It is clear, however, that Duffs claim to the HUD funds is in no way improved by entry of a default against North-wood. Any defense which Fair Housing or HUD would be able to interpose against Northwood, they will be able to interpose against Duff if Duff proceeds as a judgment creditor of North-wood. The only result of the entry of a default against North-wood would merely be that, if indeed it is subsequently proved in an action against HUD or Fair Housing that the money is actually owed to Northwood, then Duff would be able to attach that debt up to the amount granted him in this proceeding.

There appears to be no reason to depart from the traditional rules with respect to the entry of default judgments. Fair Housing obfuscates this point by discussing it in terms of summary judgment and contending that triable issues of fact exist. It may well be true that triable issues of fact exist with respect to any claim Duff may have to the HUD money. However, resolution of these issues must await the assertion of such a claim. Denial of the motion on the other hand would leave this action in an uncertain state. Since the lien has been vacated, Fair Housing has completely defeated that part of Duffs claim in this action which would have affected it. We do not see how Fair Housing can have an interest in the outcome of a suit which is now solely between Duff and Northwood, a suit which can only determine the respective rights of those two parties, and which can in no way increase whatever rights either of them may have against HUD or Fair Housing. In sum, Duff should not be required to continue to prosecute an action against a defaulting defendant which has already clearly indicated that it has no intention of defending the action. Accordingly, the Appellate Division’s order should be modified to the extent of directing entry of a default judgment against Northwood, and affirmed, as so modified.

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

Order modified in accordance with the opinion herein and, as so modified, affirmed, with costs to defendant Fair Housing Development Fund Corporation and to plaintiff against defendant Northwood Projects, Inc. Question certified answered in the negative.


text:
    In the Matter of Salem Inn, Inc., Respondent, v New York State Liquor Authority, Appellant.
    Argued October 13,1977;
    decided November 17,1977
    APPEARANCES OF COUNSEL

      Martin P. Mehler and Warren B. Pesetsky for appellant.

      Herbert S. Kassner for respondent.
   OPINION OF THE COURT

Memorandum.

Order reversed and determination of State Liquor Authority reinstated, with costs.

The hearing officer specifically found that on two occasions during the course of nude dancing by performers at the licensee’s premises the licensee suffered or permitted disorderly conduct by reason of the dancer’s engagement in lewd and indecent acts. In adopting the hearing officer’s findings, the authority found that the performances were lewd and indecent per se and therefore in violation of section 106 of the Alcoholic Beverages Control Law (compare Matter of Beale Props, v State Liq. Auth., 37 NY2d 861, with Matter of Inside Straight v State Liq. Auth., 56 AD2d 720, mot for lv to app den 41 NY2d 806; Matter of Rubinoff v State Liq. Auth., 53 AD2d 943, mot for lv to app den 40 NY2d 802).

An examination of the record discloses that there was substantial evidence to support the authority’s findings. The temporal duration of the lewd and indecent acts and the lack of direct contact between performers and patrons were but circumstances for consideration by the fact finders in making their determination (cf. Matter of Streber v State of New York Liq. Auth., 47 AD2d 808, 809).

It is not necessary to reach appellant’s constitutional arguments because the basis for the authority’s determination and this court’s reinstatement of the determination is the substantial evidence of lewd conduct suffered, conduct unprotected by constitutional limitations.

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

Order reversed, etc.


text:
    Joseph W. Coutu, Respondent, v Otis Elevator Company, Defendant and Third-Party Plaintiff-Appellant. St. Regis Paper Company, Third-Party Defendant-Respondent.
    Decided November 17, 1977
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (Walker v Sears, Roebuck & Co., 36 NY2d 695; Lizza Inds. v Long Is. Light. Co., 36 NY2d 754).


text:
    Arthur Levitt, as Comptroller of the State of New York, Respondent, v City of Utica, Appellant.
    Submitted October 24, 1977;
    decided November 17, 1977
   Motion to dismiss the appeal herein granted and the appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved (see Cohen and Karger, Powers of the New York Court of Appeals, §§ 56, 57).


text:
    The People of the State of New York, Respondent, v Martin Ginsberg, Appellant.
    Decided November 17, 1977
   No appeal lies to the Court of Appeals from an order denying leave to appeal to an intermediate appellate court on application pursuant to CPL 450.15 (People v Sommer, 33 NY2d 688).


text:
    State Division of Human Rights, Respondent, v Columbia University in the City of New York et al., Appellants.
    Submitted October 24, 1977;
    decided November 17, 1977
   Return of remittitur is requested and, when returned, it will be amended by adding thereto, after the words "with costs”, the following words: "against the complainant, Alberta Gilinsky”. [See 39 NY2d 612.]


text:
    The People of the State of New York, Respondent, v Arthur Phiefer, Appellant.
    Argued October 14, 1977;
    decided November 21, 1977

      APPEARANCES OF COUNSEL

      Walter R. Marcus for appellant.

      Eugene Gold, District Attorney (Barbara L. Linzer of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division is affirmed.

Appellant, convicted of criminal possession of a weapon in the fourth degree (Penal Law, § 265.01), argues that, as a matter of law, the evidence presented by the People was legally insufficient to establish his guilt.

The record discloses that the police received a complaint from one William Morrison that appellant had threatened to shoot him. Responding to this complaint, three officers proceeded to appellant’s residence. After identifying themselves as police officers to appellant, the officers were permitted to enter the premises. As one of the officers followed the appellant into the kitchen, he observed a revolver in plain view on the bed in the adjacent bedroom. He seized the weapon and arrested appellant. Shortly after the arrest, appellant admitted residing at the premises. Later he claimed to reside elsewhere. At trial, appellant’s girl friend, who also resided at the same address and who was present during the search, denied ever having seen the weapon before.

Under our limited powers to review affirmed findings of fact, and viewing the evidence, after a conviction, most favorably to the prosecution (People v Cerullo, 18 NY2d 839, 841), we conclude there was sufficient evidence for the trier of the facts to establish that appellant exercised dominion or control over the weapon (People v Reisman, 29 NY2d 278, 285; Penal Law, § 10.00, subd 8).

Nor is there any merit to appellant’s contention that his will to refuse the police entrance into the apartment was overborne by the presence of three police officers. The mere presence of these officers is only one factor to be taken into account in determining whether consent was voluntarily given. (People v Kuhn, 33 NY2d 203, 208-209.)

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

Order affirmed in a memorandum.


text:
    In the Matter of David J. Falso, Doing Business as Palm Gardens Restaurant, Appellant, v State Liquor Authority, Respondent.
    Argued October 7, 1977;
    decided November 21, 1977

      APPEARANCES OF COUNSEL

      Francis A. Discenza for appellant.

      Barry C. Plunkett and Warren B. Pesetsky for respondents.
   OPINION OF THE COURT

Memorandum.

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

It is true that the evidentiary fact pattern in this case resembles that in Matter of Martin v State Liq. Auth. (41 NY2d 78). In Martin, however, the penalty had been imposed by the authority on the basis of a finding that by the exercise of due diligence the licensee should have discovered the gambling activities of her barmaid, i.e., on the theory of personal knowledge of the licensee. The Appellate Division held that there was insufficient evidence to support that finding and incidentally concluded that the barmaid was a "nonmanagerial employee”. We found no reason to disturb that disposition and accordingly upheld the Appellate Division. As we wrote, "the pivotal issue in this case is whether there was substantial evidence to find that the licensee, through the exercise of reasonable diligence had an opportunity to learn of the illegal gambling and thus can be said to have impliedly acquiesced in such activity” (41 NY2d, at p 79).

In the present case the penalty was imposed on a different theory—that the licensee may be penalized even for a single instance of tolerance of gambling by an employee who exercises managerial authority, i.e., on the theory that the licensee is responsible for action of his manager. The hearing officer found that the licensee regularly left his brother in charge of the licensed premises during one hour in the morning and four hours in the afternoon when the licensee was not there. That finding was the predicate for imposition of the penalty. The Appellate Division confirmed the authority’s determination, noting that, while the licensee’s brother may not have had an official managerial title, there was substantial evidence to support the conclusion that the brother exercised managerial authority with reference to activities on the licensed premises when the licensee was not present. It is not necessary that the management responsibility delegated to the employee be that for the conduct of the entire enterprise, e.g., including purchase and sale of supplies, physical maintenance of the premises; it suffices if the employee is given responsibility for the operation of the premises and the conduct of the licensed activity thereon on other than a casual or temporary basis. Hence, here, as we did in Martin, we uphold the Appellate Division.

The conclusion that the licensee had vested managerial authority in his brother as bartender is a factual determination. We agree with the Appellate Division that there is substantial evidence in the record for its support and that the failure to confer a managerial title does not negate the conclusion as to this employee’s status. As a proposition of law, there can be no question that, for the purposes of the proscription of subdivision 6 of section 106 of the Alcoholic Beverages Control Law, a licensee normally is chargeable with the conduct of an employee who has been given managerial responsibility.

Gabrielli, Wachtler and Fuchsberg, JJ. (dissenting).

The determination of the State Liquor Authority should be annulled. The majority contends that there was substantial evidence to support the holding by the Appellate Division that the employee exercised managerial authority. Initially, it should be noted that neither the hearing officer nor the members of the full board of the State Liquor Authority made any finding that the employee was a manager or that the licensee had given the employee unequivocal supervisory responsibility. In cases where such a finding of managerial authority is made and supported by substantial evidence, then the law permits an imputation of the knowledge of the employee to the licensee (Matter of Triple S. Tavern v New York State Liq. Auth., 31 NY2d 1006, affg 40 AD2d 522), but such is not the case here. It is the relationship between the employee and the licensee which permits imputation, but only when the licensee has delegated responsibility to the employee. An employee may not unilaterally assume managerial status, with the consequent effect on the licensee, by merely acting as though he has such authority on a single occasion. There is no direct evidence in this case that the employee had managerial duties and indeed, the testimony of the licensee indicated that he reserved all supervisory and managerial functions to himself.

Although the hearing officer made a finding that the employee was "in charge” during the absence of the licensee, such a finding cannot be deemed equivalent to a determination that the employee had managerial authority. This finding amounts to nothing more than the licensee expecting his employee to "mind the store” in his absence. It confers no responsibility to act on his behalf. Certainly, the fact that the employee happened to be related to the licensee does not make the appellant "his brother’s keeper”.

The attempts to distinguish Matter of Martin v State Liq. Auth. (41 NY2d 78) are totally unavailing. If the Appellate Division and the State Liquor Authority had the benefit of our holding in Matter of Martin, handed down subsequent to their determinations, this case would not be before us. In Martin the authority had made a finding of fact that the barmaid "had * * * limited supervisory responsibility” and urged that on the basis of this finding knowledge of the illegal activity should be imputed to the licensee. We unmistakenly and specifically rejected this contention, holding that "[a]bsent a finding that the licensee had given the barmaid unequivocal supervisory responsibility, Unnerberg [the barmaid] should not be deemed an agent whose knowledge could be imputed to the licensee” (Matter of Martin v State Liq. Auth., supra, p 79). In the case before us, there was no finding of even limited supervisory responsibility and yet the majority would allow the Appellate Division to infer managerial authority and draw imputed knowledge therefrom.

It is, of course, undisputed and indeed must be conceded that there never has been a claim that the licensee had actual knowledge of any gambling activity on the premises, neither is there any proof nor indeed even a claim of any implied acquiescence by him in the single episode presented in this case.

In Matter of Martin the precise question presented here was before this court on a record with findings of fact much more substantively compelling. Martin involved six separate occasions on which illegal activity transpired, although here there is but one. Martin involved a licensee with a previous violation whereas David Falso has none. Finally, the record in Martin included a finding of fact that the employee had supervisory responsibility and there is no such finding herein. We can do nothing less than conclude that Matter of Martin is controlling.

As a matter of sound judicial policy, stable and recently redeclared decisional law should not be lightly cast aside lest the court create conflicting and contradictory precedent, disjointing the necessary continuity in law. Indeed, our court has recently spoken on several occasions for the need to respect the doctrine of stare decisis (cf. Donawitz v Danek, 42 NY2d 138, 142; People v Hobson, 39 NY2d 479, 487-491; Matter of Eckart, 39 NY2d 493, 498-500). The need for stability and predictability in the law, although not absolute, mandates consistent application of the law, even in the sometimes tenuous and difficult cases involving review of administrative proceedings. Once a rule has been established adherence should follow, absent "cogent reasons” to depart from its application (see Baker v Lorillard, 4 NY 257, 261).

Failure to follow recent precedent renders law a game of chance and the most "deplorable consequence will inevitably be that the administration of justice will fall into disrepute. Respect for tribunals must fall when the bar and the public come to understand that nothing that has been said in prior adjudications has force in a current controversy” (Mahnich v Southern S. S. Co., 321 US 96, 113 [Roberts, J., dissenting]).

Accordingly, we would reverse and annul the determination of the authority.

Chief Judge Breitel and Judges Jasen, Jones and Cooke concur in memorandum; Judges Gabrielli, Wachtler and Fuchsberg dissent and vote to reverse in a separate memorandum.

Judgment affirmed.


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    The People of the State of New York, Respondent, v Al Williams, Also Known as Allen White, Appellant.
    Argued October 14, 1977;
    decided November 21, 1977

      APPEARANCES OF COUNSEL

      Andrew E. Abraham and William E. Hellerstein for appellant.

      John J. Santucci, District Attorney (David Zucker of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

We agree with the majority in that court that there was sufficient evidence to sustain the conviction for possession of a weapon. Police attention had been drawn to defendant’s behavior about 3:50 a.m. on December 20. He was observed to crouch down beside the left front wheel of the Volkswagen van, to take something from beneath his overcoat and to place it under the front wheel. When defendant proceeded a short distance down the street to the corner, one of the officers went immediately to the spot where defendant had been and found the sawed-off shotgun under the left front wheel. There was nothing else under the wheel and no one else in the area.

Proof of such circumstances supports the conclusion that defendant had been in possession of the sawed-off shotgun.

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

Order affirmed in a memorandum.


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    In the Matter of Voerg Lincoln-Mercury, Inc., Respondent, v James P. Melton, as Commissioner of the Department of Motor Vehicles, Appellant.
    Argued October 5, 1977;
    decided November 21,1977

      APPEARANCES OF COUNSEL

      Louis J. Lefkowitz, Attorney-General (Joseph J. Micare and Jean M. Coon of counsel), for appellant.

      Michael E. Catalinotto and Roger J. Cusick for respondent.
   OPINION OF THE COURT

Memorandum.

After a hearing and pursuant to section 415 of the Vehicle and Traffic Law (see subd 9, par d), the Commissioner of Motor Vehicles suspended the dealer registration of petitioner for a violation of section 78.11 (a) (12) of the regulations (15 NYCRR 78.11 [a] [12]) of said commissioner. This regulation requires, in respect to 1972 or older model year vehicles (see Vehicle and Traffic Law, § 2102, subd [a], par [10]), that the dealer must place on the certificate of sale the mileage the motor vehicle purports to have been operated as appears upon the vehicle’s odometer and that, if the dealer knows that the mileage indicated on the odometer is less than the mileage actually traveled by the motor vehicle, the notation "true mileage unknown” shall be placed on the certificate of sale in addition to the mileage shown on the odometer.

There was proof that in or about November, 1972 petitioner sold a used 1969 Pontiac automobile to Stephen Craft and then in October, 1974 repurchased from him the same vehicle. Craft dealt with the same salesman in both transactions and, during the repurchase negotiations, the salesman asked for the mileage on the car and Craft replied that it was "the same as it was when I bought it.” On November 7, 1974 petitioner sold the vehicle to Taconic Motors Corporation pursuant to a certificate of sale listing the present odometer reading as 29,464 and without indication that the true mileage was unknown. An examination of records at petitioner’s premises revealed that the 1972 certificate of sale from petitioner to Craft listed the odometer reading at 29,465 and there was received in evidence an odometer mileage statement in respect to the 1974 repurchase in which Craft listed the mileage as 29,464.

The knowledge of petitioner’s salesman, acquired at the time of resale of the vehicle by Craft to petitioner and indicating that the mileage registered must have been less than that actually traveled, was attributable to petitioner (see 200 East End Ave. Corp. v General Elec. Co., 5 AD2d 415, affd 6 NY2d 731). To rule otherwise would render the regulation nugatory and lead to deception (see People ex rel. Price v Sheffield Farms Co., 225 NY 25, 29-30). Undue emphasis should not be placed on the words employed by the hearing examiner in making his recommendation. Since there was substantial evidence indicating that the dealer knew, by knowledge imputable to him, that the mileage indicated was less than that actually traveled, thus supporting the commissioner’s determination, and since there is no warrant for a disturbance of the punishment imposed (Matter of Pell v Board of Educ., 34 NY2d 222, 230, 233), the order of the Appellate Division should be reversed, with costs, and the determination of the commissioner reinstated.

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

Order reversed, etc.


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    The People of the State of New York, Respondent, v William Lalli, Also Known as William Farrell, Appellant.
    Argued October 7, 1977;
    decided November 21, 1977

      APPEARANCES OF COUNSEL

      Daniel J. Bernstein and William E. Hellerstein for appellant.

      Mario Merola, District Attorney (Cecile F. Grossman of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

At issue is the denial of a motion to suppress evidence on Fourth Amendment grounds. Following this denial, and after the People had presented a portion of their case at trial, defendant pleaded guilty to manslaughter in the first degree. Defendant thereafter appealed from the judgment of conviction for this crime, and the Appellate Division affirmed. We reverse.

At the outset, we note that an examination of the record belies the People’s argument that defendant waived the issue of the sufficiency of the affidavit as a basis for the issuance of the warrant. Considering this issue, it is unnecessary to detail fully the inadequacy of the affidavit which only obliquely suggests that evidence of the crime may be found at defendant’s premises and sets forth what little may be considered probative in the most conclusional terms. We thus determine that a showing of probable cause to search was not made out on the face of this affidavit. We further hold that this defect may not be overcome by the unsworn, unwritten and unrecorded details of the investigation related by a police detective to the Town Justice who issued the warrant (see CPL 690.40, subd 1; cf. People v Brown, 40 NY2d 183). For whatever reason, the Town Justice accepted this information without an oath and without making a record and facts were omitted which may have made sufficient the affidavit prepared at his direction. Thus, there is no adequate record of these facts. Accordingly, the warrant was improperly issued and the search may not be upheld on this ground.

We also reject the argument that the search may be sustained as incident to an arrest. While probable cause to arrest may exist independent of a search warrant (see People v Green, 33 NY2d 496), under these circumstances a warrant-less arrest was neither necessary nor permissible. At least in this case, the inadmissible evidence resulting from an invalid search warrant may not be resurrected by a belated claim that there was in any event probable cause to arrest without a warrant and, hence, that the search was incident to the arrest. Moreover, this arrest would not justify the making of a full-blown warrantless search of defendant’s home (see People v Perel, 34 NY2d 462, 468).

Accordingly, the order of the Appellate Division should be reversed, the judgment vacated, the motion to suppress granted, and the case remitted to Supreme Court, Bronx County, for further proceedings on the indictment.

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

Order reversed, etc.


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    John L. Grady et al., Appellants, v Roderick A. McLean, Respondent.
    Submitted November 7, 1977;
    decided November 21, 1977
   Motion to dismiss the appeal herein granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that it does not lie.


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    Salvatore Grosso et al., Respondents, v American Chicle Co. et al., Appellants.
    Submitted November 7, 1977;
    decided November 21, 1977
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals, § 38, pp 156-157).


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    Idlewild Motors, Inc., Respondent, v Robert Calhoun, Jr., Appellant.
    Decided November 21, 1977
   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).


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    In the Matter of Benson Realty Corp., on Its Own Behalf and on Behalf of All Others Similarly Situated, Appellant, v Albert A. Walsh, as Administrator of the Housing and Development Administration of New York City, et al., Respondents.
    Submitted October 17, 1977;
    decided November 21, 1977
   Motion to dismiss the appeal taken as of right herein granted and the appeal dismissed, without costs, 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, § 43, subd [d]).


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    In the Matter of the Estate of Minerva Love, Deceased. Stanley Love et al., as Executors of Minerva Love, Deceased, Appellants. Jane L. Lee, as Executrix of Minerva Love, Deceased, Respondent.
    Submitted October 31, 1977;
    decided November 21, 1977
   Motion to dismiss the appeal herein denied.


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    In the Matter of Carl A. Vergari, as District Attorney of Westchester County, Appellant, v Michael Hirniak, Respondent.
    Decided November 21, 1977
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution (see Lizza Inds. v Long Is. Light. Co., 36 NY2d 754; Walker v Sears, Roebuck & Co., 36 NY2d 695).


text:
    Robert Stigwood Organisation, Inc., Respondent, v Devon Company, Defendant, and Persky-Bright Productions, Inc., Appellant.
    Submitted August 15, 1977;
    decided November 21, 1977
   Motion to dismiss the appeal herein denied.


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    The People of the State of New York, Appellant, v Michael Julian, Also Known as Casto Ramos, Respondent.
    Argued October 14, 1977;
    decided November 22, 1977

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (Jane Deutscher, Peter L. Zimroth and Robert M. Pitler of counsel), for appellant.

      Diana A. Steele and William E. Hellerstein for respondent.
   OPINION OF THE COURT

Memorandum.

Order affirmed. Defendant’s use of his sock to hold a small package did not alone provide the two police officers with cause to stop and summon him to a police car, position him between them, and inquire about the package. Defendant’s conduct, even in a high crime area, might just as well have been to secrete noncontraband valuables.

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

Order affirmed in a memorandum.


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    In the Matter of Park East Corporation et al., Respondents, and Park East Hospital et al., Intervenors-Respondents, v Robert P. Whalen, as Commissioner of Health of the State of New York, Appellant.
    Argued October 12, 1977;
    decided November 22, 1977
    APPEARANCES OF COUNSEL

      Louis J. Lefkowitz, Attorney-General (Robert S. Hammer and Samuel A. Hirshowitz of counsel), for appellant.

      Robert R. MacDonnell and Loren G. Lavine for intervenorsrespondents.
   OPINION OF THE COURT

Order reversed, with costs, and the matter remitted to the Appellate Division, First Department, with directions to dismiss the proceeding as moot. It is undisputed that the hospitals involved have been closed, the mortgages on their premises have been foreclosed and the premises sold, and that the operating corporations are in bankruptcy. The effect of our disposition is not only to vacate the determinations heretofore made, but “to erase the whole case from the books” (Cohen and Karger, Powers of the New York Court of Appeals [rev ed], p 420) and to eliminate therefrom the grounds for those determinations.

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


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    In the Matter of the Claim of Lorraine Andrews, Appellant. Philip Ross, as Industrial Commissioner, Respondent.
    Submitted October 14, 1977;
    decided November 22, 1977

      APPEARANCES OF COUNSEL

      Steven M. Bernstein, Michael D. Schoffman and Harold Skovronsky for appellant.

      Louis J. Lefkowitz, Attorney-General (Irving Jorrisch, Samuel A. Hirshowitz and Murray Sylvester of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, without costs, on the memorandum at the Appellate Division (54 AD2d 527; cf. Matter of Katz’s Delicatessen v O’Connell, 302 NY 286).

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


author: Cooke, J. (dissenting).

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    Martin R. Koenig, as President of the Civil Service Employees Association, Inc., Monroe Chapter, et al., Appellants, v Lucien A. Morin, as County Manager of the County of Monroe, et al., Respondents.
    Argued October 3, 1977;
    decided November 22, 1977

      APPEARANCES OF COUNSEL

      James W. Roemer, Jr., and William Wallens for appellants. Carl R. Krause and James A. Spitz, Jr., for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the case remitted to Supreme Court with directions to dismiss the complaint on the ground that the issues presented are moot.

The resolution of the County Legislature of Monroe County which enacted the 10-day furlough program was explicitly restricted to the year 1976. In consequence of the institution of the present litigation, there has been no implementation of that furlough program, and the authority of the enabling resolution has now been exhausted.

We are not unmindful of the contentions of the litigants that the legal issues tendered may be said to be of significant public importance; this is another instance of the difficulties confronted by municipalities, their employees and the public in a level or declining economy when the framework of applicable statutes and regulations was predicated on an implicit assumption of an expanding economy. It is because of the importance of the issues and the legal and practical difficulties which ineluctably would attend their resolution that in a sense of responsible judicial restraint we decline the invitation of the parties to address and determine the issues presented in this proceeding.

Cooke, J. (dissenting).

I dissent and vote to modify the order of the Appellate Division. The matter should be remitted to the Supreme Court for modification of the judgment so as to declare that paragraph (1) of section 1 of Resolution No. 210 of 1976 of the Monroe County Legislature is partially invalid and unlawful, as herein indicated.

The facts are simple and it is respectfully submitted that the legal resolution is ¡evident.

On June 30, 1976 the County Legislature of Monroe County adopted its Resolution No. 210 of 1976, entitled "AUTHORIZING AND DIRECTING A TEN DAY FURLOUGH WITHOUT PAY PROGRAM FOR ALL COUNTY OFFICERS AND EMPLOYEES AND OTHER ACTION TO BE TAKEN BY THE ADMINISTRATION IN ORDER TO REDUCE EXPENDITURES IN THE 1976 BUDGET.” So far as relevant, it provided:

"BE IT RESOLVED BY THE LEGISLATURE OF THE COUNTY OF MONROE, as follows:

"Section 1. Because of the legal and economic necessity of reducing expenditures in the 1976 Monroe County Budget, the County Manager is hereby authorized and directed to take the following actions:

"(1) Implement and administer a ten day work day furlough without pay program for all county officers and employees for the remainder of 1976.”

It is to be noted that this resolution applies to "all county officers and employees”.

Various flags fly in warning against action such as that taken by the County Legislature. (1) The State Constitution (art IX, § 2, subd [c]) provides in part:

"(c) In addition to powers granted in the statute of local governments or in any other law, (i) every local government shall have power to adopt and amend local laws not inconsistent with the provisions of this constitution or any general law relating to its property, affairs or government and, (ii) every local government shall have power to adopt and amend local laws not inconsistent with the provisions of this constitution or any general law relating to the following subjects, whether or not they relate to the property, affairs or government of such local government, except to the extent that the legislature shall restrict the adoption of such a local law relating to other than the property, affairs or government of such local government:

"(1) The powers, duties, qualifications, number, mode of selection and removal, terms of office, compensation, hours of work, protection, welfare and safety of its officers and employees” (emphasis added).

This court recently held that this section of our Constitution "makes it abundantly clear that the Home Rule powers will sustain an exercise of local authority with respect to the regulation of the hours of work, compensation, and so on, of employees of a local government only to the extent that such exercise is not inconsistent with any general law enacted by the Legislature” (City of Amsterdam v Helsby, 37 NY2d 19, 26). (2) Section 10 of the Municipal Home Rule Law, entitled "General powers of local governments to adopt and amend local laws”, states in part in subdivision 1:

"1. In addition to powers granted in the constitution, the statute of local governments or in any other law,

"(i) every local government shall have power to adopt and amend local laws not inconsistent with the provisions of the constitution or not inconsistent with any general law relating to its property, affairs or government and,

"(ii) every local government, as provided in this chapter, shall have power to adopt and amend local laws not inconsistent with the provisions of the constitution or not inconsistent with any general law, relating to the following subjects, whether or not they relate to the property, affairs or government of such local government, except to the extent that the legislature shall restrict the adoption of such a local law relating to other than the property, affairs or government of such local government:

"a. A county, city, town or village:

"(1) The powers, duties, qualifications, number, mode of selection and removal, terms of office, compensation, hours of work, protection, welfare and safety of its officers and employees” (emphasis added).

(3) Subject to the New York Constitution and the Civil Service Law but notwithstanding the provisions of any other general law or of any special law to the contrary, the compensation of all employees paid from county funds shall be fixed by the board of supervisors (County Law, § 205). (4) Subject to the New York Constitution and general laws of this State and to the rules and regulations made pursuant thereto, the board of supervisors may fix the number of hours constituting a legal day’s work for all classes of employees of the county (County Law, § 206). (5) Rather significantly, nothing in the County Law shall be deemed to affect, impair or supersede the provisions of the Civil Service Law nor the civil service and retirement rights of any officer or employee (County Law, § 1001, subd 9).

Resolution 210 is invalid and contrary to law in detached respects. First, as to county employees in the competitive class, those having tenure, the action of the County Legislature in directing that they be furloughed (in reality suspended or laid off) without abolition or reduction of positions, is inconsistent with section 80 of the Civil Service Law. That section, entitled "Suspension or demotion upon the abolition or reduction of positions”, in part provides: "1. Suspension or demotion. Where, because of economy, consolidation or abolition of functions, curtailment of activities or otherwise, positions in the competitive class are abolished or reduced in rank or salary grade, suspension or demotion, as the case may be, among incumbents holding the same or similar positions shall be made in the inverse order of original appointment on a permanent basis in the classified service in the service of the governmental jurisdiction in which such abolition or reduction of positions occurs, subject to the provisions of subdivision seven of section eighty-five of this chapter [which subdivision deals with certain preferences in retention upon the abolition of positions]”. Section 80 thus makes the abolition or reduction of positions a sine qua non before there can be a suspension of those holding tenured positions in the competitive class. This conclusion was arrived at in a 1976 opinion of the Attorney-General:

"The question remains, however, whether it is permissible to accomplish the necessary economies, under similar circumstances, by the suspension of employees without the abolition of their positions. It has been suggested that this alternative of vacating but not abolishing positions reaches the same result by simpler means.

"In view of the fact that the Civil Service Law makes express provisions for those cases in which tenured employees may be suspended (e.g., §§ 72, 75 [3]) and makes no provision for suspension for economy reasons except in the context of abolition (i.e., § 80) I must conclude that abolition of positions is a necessary prerequisite, I find nothing to support a contrary view.” (1976 Opns Atty Gen 7-8.)

Where suspensions or layoffs are regulated by statute, the procedure provided by the statute must be strictly followed (Kaplan, Law of Civil Service [1958], p 207).

Secondly, the County Legislature had no authority to diminish the compensation of all "county officers”. Section 7 of article XIII of the State Constitution specifically provides that the compensation of each of the State officers named in said Constitution shall not, during such officer’s continuance in office, be diminished during the term for which he shall have been elected or appointed. Furthermore, section 201 of the County Law provides in part: "The salary of any such officer [all officers paid from county funds, except the members of the judiciary] elected or appointed for a fixed term shall not be * * * diminished during the term of his office * * *. The compensation of a county officer appointed for an indefinite term may be * * * diminished at any time.”

Therefore, in summary, Resolution No. 210 of 1976, as adopted by the County Legislature of Monroe County, is invalid as to county employees in the competitive class having tenure, as indicated in section 80 of the Civil Service Law. It is also invalid as to those county officers who are State officers named in the State Constitution and as to those county officers paid from county funds, except members of the judiciary, who are elected or appointed for a fixed term, as indicated in section 7 of article XIII of the State Constitution and section 201 of the County Law. There should, therefore, be a remittal to Supreme Court for modification of its judgmerit so as to declare said resolution invalid and unlawful in these respects.

It is well recognized that the incidents of economic stress in local government are commonplace and likely to continue. Since the underlying controversy here is of a character likely to recur in the future and since local governments, their officers and employees are in need of guidance, review should not be declined on the ground of mootness (see Matter of Carr v New York State Bd. of Elections, 40 NY2d 556, 559). Because of the time necessarily required for appeal, a declaration of mootness is in effect the denial of an appeal in an important area of the law and, if continued ad infinitum, will result in lasting uncertainty and frustration, analogous in some ways to denial of standing, long a beast of the law.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur in memorandum; Judge Cooke dissents and votes to retain jurisdiction and modify in a separate opinion.

Order reversed, etc.

      . When used in article IX of the State Constitution, a "local government” includes a county (NY Const, art IX, § 3, subd [d], par [2]).

      . The term "board of supervisors” means the elective governing body of a county, by whatever name designated (General Construction Law, § 13-b).

      . In Jones v Metropolitan Life Ins. Co. (156 Pa Super 156, 165), the Pennsylvania Superior Court stated: "Furlough is usually used in granting a temporary leave of absence to one in the armed service of the country, or a governmental official or an employee. Like leave of absence, it indicates some voluntary act on the part of the employee, as contrasted with the phrase 'lay-off which contemplates action by the employer.”

      . For example, the offices of District Attorney, County Clerk and Sheriff have been held to be constitutional State offices (see, e.g., 1 Opns St Comp, 1945, p 53; 1965 Opns Atty Gen 190; see, also, NY Const, art VI, § 25, as to certain judicial positions).

      . Temporary or provisional appointees, though in a sense holding positions in the competitive class, are entitled to none of the advantages secured by period of tenure or permanency under the Civil Service Law or rules adopted pursuant thereto (see Koso v Greene, 260 NY 491, 494).


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    In the Matter of the Claim of Felice E. Punter, Appellant. Philip Ross, as Industrial Commissioner, Respondent.
    Argued October 13, 1977;
    decided November 22, 1977

      APPEARANCES OF COUNSEL

      M. Madeline Welch and Michael D. Hampden for appellant. No appearance for respondent.
   OPINION OF THE COURT

Memorandum.

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

Claimant, a credit and collection clerk for a department store, sustained personal injuries in an automobile accident. Upon receipt of a report form from her insurance company requesting wage information from her employer, she completed the form and signed her manager’s name thereto without authorization.

The Unemployment Insurance Appeal Board had the right to disqualify claimant from receiving benefits on the ground that she lost her employment through misconduct in connection therewith. The intentional and unauthorized subscription by an employee of an instrument in respect to the employment relation by use of an employer’s name, even though accomplished without intent to harm and not resulting in actual harm, constitutes misconduct within subdivision 3 of section 593 of the Labor Law. At least, the board was entitled to so conclude. Such conduct evinces a willful disregard of standards of behavior which employers have the right to expect of their employees and, in this instance, bears materially on claimant’s fitness and integrity to serve in the capacity of a credit and collection clerk (see Matter of Rosedietcher [Levine], 33 NY2d 377, 380-381; see, also, Unemployment Compensation—Misconduct, Ann., 146 ALR 243; cf. Matter of Van Such [Levine], 50 AD2d 956).

Chief Judge Breitel and Judges Jasen, Jones, Fuchsberg and Cooke concur in memorandum; Judges Gabrielli and Wachtler dissent and vote to reverse on the dissenting memorandum by Mr. Justice A. Franklin Mahoney at the Appellate Division (54 AD2d 526).

Order affirmed.


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    In the Matter of James Napoli, Jr., Appellant, v Justices of the Supreme Court of Kings County et al., Respondents.
    Submitted October 17, 1977;
    decided November 22, 1977
   It cannot be determined on the indictments and the meager record now before the court whether the State prosecution is barred under CPL 40.20 (subd 2). (Cf. People v Abbamonte, 43 NY2d 74.) Accordingly, inasmuch as it does not appear that movant is clearly entitled to the extraordinary remedy of prohibition, denial thereof cannot be said to be error.


text:
    The People of the State of New York, Respondent, v James P. Mhina, Appellant. In the Matter of James P. Mhina, Appellant, v The People of the State of New York, Respondent.
    Submitted October 31, 1977;
    decided November 22, 1977
   Motion for leave to appeal denied on the ground that there is no warrant in law for the proceeding and therefore for review of an order purportedly denying relief in the purported proceeding.


text:
    Public Administrator of New York County, as Administrator of the Estate of Andrew Glover, Deceased, Respondent, v Delorise E. Glover, Appellant.
    Submitted November 7, 1977;
    decided November 22, 1977
   Motion to dismiss the appeal herein granted and the appeal dismissed, without costs, upon the ground that the dissent at the Appellate Division is not on a question of law (CPLR 5601, subd [a], par [i]).


text:
    Thomas Quigley et al., Respondents, v Joseph J. Capolongo et al., Defendants, and Ithaca College, Appellant.
    Argued November 16, 1977;
    decided December 14, 1977

      APPEARANCES OF COUNSEL

      Walter J. Wiggins for appellant.

      Robert J. Clune for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (53 AD2d 714).

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


text:
    In the Matter of Rosemary S. Pooler, as Executive Director of the New York State Consumer Protection Board, Appellant, v Public Service Commission et al., Respondents.
    Argued November 9, 1977;
    decided December 14, 1977

      APPEARANCES OF COUNSEL

      Harold I. Abramson for appellant.

      Robert C. Richards, Edward M. Barrett and Maida J. Oringher for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (58 AD2d 940).

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


text:
    Abraham Bielinski, Appellant, v Merrill Lynch, Pierce, Fenner & Smith Incorporated, Respondent.
    Submitted November 11, 1977;
    decided December 14, 1977

      APPEARANCES OF COUNSEL

      Carl Blank and Errol Blank for appellant.

      John L. Mclnerney for respondent.
   OPINION OF THE COURT

Order affirmed, without costs, on the memorandum at the Appellate Division (57 AD2d 530).

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


text:
    Coppola Bros. Excavation Corp., Respondent, v M. Melnick & Co., Inc., et al., Appellants, et al., Defendants.
    Argued November 14, 1977;
    decided December 14, 1977

      APPEARANCES OF COUNSEL

      Edwin Efros for appellants.

      Harris Birnbaum for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (55 AD2d 522 and 56 AD2d 524).

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


text:
    In the Matter of Mark Dunlea et al., Respondents, v Peter Goldmark, as Director of the Budget for the State of New York, et al., Appellants.
    Argued November 11, 1977;
    decided December 14, 1977

      APPEARANCES OF COUNSEL

      Louis J. Lefkowitz, Attorney-General (William J. Kogan and Ruth Kessler Toch of counsel), for appellants.

      Dennis A. Kaufman for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, on the opinion by Mr. Justice J. Clarence Herlihy at the Appellate Division (54 AD2d 446).

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


text:
    Nassau Chapter, Civil Service Employees Association, Inc., Respondent, v Robert D. Helsby et al., Constituting the Public Employment Relations Board of the State of New York, Respondents, and County of Nassau, Appellant.
    Argued November 14, 1977;
    decided December 14, 1977

      APPEARANCES OF COUNSEL

      William Gitelman, County Attorney (William S. Norden and Natale C. Tedone of counsel), for appellant.

      Richard M. Gaba and Stephen E. Zweig for respondent.
   OPINION OF THE COURT

Judgment affirmed, with costs, on the memorandum at the Appellate Division (54 AD2d 925).

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


text:
    In the Matter of Ho-Penn Garage Corp., Appellant, v Elinor Guggenheimer, as Commissioner of the Department of Consumer Affairs, Respondent.
    Argued November 10, 1977;
    decided December 14, 1977

      APPEARANCES OF COUNSEL

      Howard I. Brenner for appellant.

      W. Bernard Richland, Corporation Counsel (James P. Griffin and Leonard Koerner of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

The undisputed evidentiary facts in this record together with the inferences which may reasonably be drawn from them provide substantial support for the determination made by the city Department of Consumer Affairs that Ho-Penn Garage Corp., the licensee, had attempted to avoid the suspension imposed by the department, that the operation of the specially formed management corporation was a subterfuge for the licensee, and that the licensee and its principals knowingly permitted and aided the management corporation to operate an unlicensed garage. On the basis of that determination we conclude that the penalty of license revocation is not so shocking to one’s sense of fairness as to warrant judicial intervention.

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

Judgment affirmed.


text:
    The People of the State of New York, Respondent, v Charles Asa Myrtetus, Appellant.
    Argued November 9, 1977;
    decided December 14, 1977

      APPEARANCES OF COUNSEL

      Salvatore J. Panzarella, Acting Public Defender (Andrew C. Fine of counsel), for appellant.

      Lawrence T. Kurlander, District Attorney (Michael Nelson of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The orders of the Appellate Division should be affirmed.

During the course of an investigation the police officer was admitted to the defendant’s premises. Before leaving he observed a young woman, draped in a blanket, who indicated a desire to accompany the officer when he left. Once outside she informed the officer that she had just been raped by the defendant. After placing the victim in his car and calling for assistance, the officer immediately returned for the purpose of arresting the defendant. However he found the bedroom window open, the screen pushed out, and the suspect gone. The officer noticed, in plain view, a ripped sheet parts of which were allegedly used to restrain the victim. The sheet was not immediately seized. The police staked out the premises, obtained a fugitive warrant and maintained a vigil awaiting the suspect’s return. After four days of surveillance, the police left the premises taking the sheet with them. The initial entry for the purpose of arresting the defendant had not been unlawful and it certainly cannot be said that the defendant had any expectation of privacy in the premises from which he had fled. The evidence seized (i.e., the sheet) was in plain view. Under the circumstances the removal of the sheet cannot be said to have been unreasonable and therefore the refusal to suppress was proper.

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

Orders affirmed in a memorandum.


text:
    Pettinelli Electric Co., Inc., et al., Respondents, v Board of Education of City of New York, Appellant.
    Argued November 10, 1977;
    decided December 14, 1977

      APPEARANCES OF COUNSEL

      W. Bernard Richland, Corporation Counsel (Alfred Weinstein, L. Kevin Sheridan and Theodore Gilbert of counsel), for appellant.

      Franklin E. Tretter for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (56 AD2d 520). Question certified answered in the affirmative.

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


text:
    In the Matter of John A. Bal, Jr., Appellant, v Patrick V. Murphy, as Police Commissioner of the City of New York, Respondent.
    Argued November 9, 1977;
    decided December 14, 1977

      APPEARANCES OF COUNSEL

      Barry Berkman and Thomas Silbiger for appellant.

      W. Bernard Richland, Corporation Counsel (Ronald E. Sternberg and Leonard Koerner of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

Judgment affirmed.

The commissioner’s determination is supported by substantial evidence and the sanction imposed is not so disproportionate as to warrant judicial correction (Matter of Alfieri v Murphy, 38 NY2d 976; Matter of O’Connor v Frank, 38 NY2d 963; Matter of Pell v Board of Educ., 34 NY2d 222).

Though petitioner’s record includes some commendations, it also reveals a pattern of repeated violations of police regulations for which he previously had been disciplined and which, along with the present ones, could be found to manifest either an unwillingness to obey orders or otherwise adapt to the disciplines required of a police officer. The commissioner had a right to take these in account in his disposition (Matter of Slominski v Codd, 52 AD2d 762, affd 41 NY2d 1086). Moreover, while, as the commissioner himself noted, none of the infractions involved lack of integrity, it was within the commissioner’s province to premise his findings on the "requirements [for] order, authority, and discipline” which he decided petitioner had failed to meet (see People ex rel. Guiney v Valentine, 274 NY 331, 334; People ex rel. Masterson v French, 110 NY 494, 499).

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

Judgment affirmed, without costs, in a memorandum.


text:
    Fort M Development Corp., Appellant, v Inland Credit Corporation, Respondent.
    Argued November 14, 1977;
    decided December 14, 1977

      APPEARANCES OF COUNSEL

      Robert G. Kurzman and Arthur Elfenbein for appellant.

      Richard H. Abelson, Samuel Kirschenbaum and Rochelle Kerner for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (54 AD2d 862).

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


text:
    McCorkle Cooperative Apartments, Inc., Respondent, v Emily Gross (Formerly Emily Sutker) et al., Appellants.
    Argued November 9, 1977;
    decided December 14, 1977

      APPEARANCES OF COUNSEL

      Donald H. Shaw for appellants.

      Leo Howard for respondent.
   OPINION OF THE COURT

Order affirmed, without costs, on the memorandum at the Appellate Division (54 AD2d 753).

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


text:
    In the Matter of Gregory Kepp et al., Appellants, v Springville-Griffith Central School District, Respondent.
    Argued November 11, 1977;
    decided December 14, 1977
    APPEARANCES OF COUNSEL

      J. Michael Eadry, Bernard F. Ashe and Richard C. Heffern for appellants.

      Robert B. Conklin for respondent.
   OPINION OF THE COURT

Order affirmed, with costs (see Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774; Board of Educ. v Areman, 41 NY2d 527; Matter of Acting Superintendent of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.], 42 NY2d 509).

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


text:
    The People of the State of New York, Respondent, v James A. Johnson, Appellant.
    Argued November 11, 1977;
    decided December 14, 1977
    APPEARANCES OF COUNSEL

      Lewis R. Friedman, Herman Kaufman and Jack T. Litman for appellant.

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

Appeal dismissed upon the ground that no question reviewable by this court is presented (see People v Monroe, 40 NY2d 1096; People v Crimmins, 38 NY2d 407, 415-416).


text:
    Geraldine Berkman, Appellant, v Monroe E. Berkman, Respondent.
    Submitted October 17, 1977;
    decided December 14, 1977
   Motion, insofar as it seeks leave to appeal from that order of Supreme Court dated August 3, 1977, denied, and, insofar as it seeks leave to appeal from the orders of the Appellate Division dated April 4 and June 13, 1977, dismissed upon the ground that said orders do not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Pierre Pellaton Apts., Inc., Now SKS Associates, Respondent, v Board of Assessors of the County of Nassau, Appellant.
    Argued November 15, 1977;
    decided December 15, 1977

      APPEARANCES OF COUNSEL

      William Gitelman, County Attorney (Leon Friedman of counsel), and Francis Bergan, Special Counsel, for appellant.

      Adolph Koeppel, Irving I. Lesnick, William D. Siegel, Bernard Sommer, Saul R. Fenchel and Michael R. Martone for petitioner-respondent.

      George B. Costigan, Jr., and Abraham Brinn for Cerro Corporation, respondent.

      Louis J. Lefkowitz, Attorney-General (Joseph P. McCale and Ruth Kessler Toch of counsel), pro se, and amicus curiae.

   OPINION OF THE COURT

Order affirmed, with costs, on the opinion by Mr. Justice James D. Hopkins at the Appellate Division (reported at 53 AD2d 463, sub nom. 860 Executive Towers v Board of Assessors of County of Nassau). Question certified answered in the affirmative.

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


text:
    In the Matter of Saul Sokolov, Inc., Now Known as Junard House of Great Neck, Respondent, v Board of Assessors of the County of Nassau, Appellant.
    Argued November 15, 1977;
    decided December 15, 1977

      APPEARANCES OF COUNSEL

      William Gitelman, County Attorney (Leon Friedman of counsel), and Francis Bergan, Special Counsel, for appellant.

      Adolph Koeppel, Irving I. Lesnick, William D. Siegel, Bernard Sommer, Saul R. Fenchel and Michael R. Martone for respondent.

      Louis J. Lefkowitz, Attorney-General (Joseph P. McCale and Ruth Kessler Toch of counsel), pro se, and amicus curiae.

   OPINION OF THE COURT

Order affirmed, with costs (see Matter of Pierre Pellaton Apts, v Board of Assessors, 43 NY2d 769, decided herewith).

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


text:
    In the Matter of St. Lukes Hospital Center, Appellant, v Hollis S. Ingraham, as Commissioner of the Department of Health of the State of New York, Respondent.
    Argued November 16, 1977;
    decided December 15, 1977

      APPEARANCES OF COUNSEL

      Larry M. Lavinsky and James H. Carmichael for appellant.

      Louis J. Lefkowitz, Attorney-General (Mark C. Rutzick and Samuel A. Hirshowitz of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the Per Curiam opinion at the Appellate Division (52 AD2d 181). To the extent that Matter of Catholic Med. Center v Department of Health (54 AD2d 933) takes a contrary view, that view is disregarded.

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


text:
    The People of the State of New York, Respondent, v Gary Washington, Appellant.
    Argued November 17, 1977;
    decided December 15, 1977

      APPEARANCES OF COUNSEL

      Marjorie M. Smith and William E. Hellerstein for appellant.

      Eugene Gold, District Attorney (Michael J. Halberstam of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

Order reversed, and the indictment dismissed. The seven-month delay between defendant’s felony indictment and his arrest constitutes a denial of the statutory right to a speedy trial (CPL 30.30, subd 1, par [a]).

The People contend that the delay was caused by "exceptional circumstances”, and hence falls within a statutory exception (CPL 30.30, subd 4, par [g]). They urge as an excuse an ongoing narcotics investigation. However, the proof of such investigation was deficient. No activity of any significance was shown, but only a variety of unsatisfactory excuses why the investigation did not proceed. Statutory examples of exceptional circumstances would entail at least probable availability of new evidence within a reasonable period of time, and a justified need for additional time to prepare the People’s case. The statutory exception, then, if it is to be given reasonable effect and it is to fulfill the legislative purpose, must be limited to instances in which the prosecution’s inability to proceed is justified by the purposes of the investigation and credible, vigorous activity in pursuing it.

Since the indictment must be dismissed, it is unnecessary to determine whether the court’s erroneous characterization of a defense witness, in a supplementary charge, as "an admitted interested party”, would otherwise require a new trial.

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

Order reversed, etc.


text:
    In the Matter of Multi Million Miles Corp., Appellant, v State Liquor Authority, Respondent.
    Argued November 10, 1977;
    decided December 15, 1977

      APPEARANCES OF COUNSEL

      Saram Amerling for appellant.

      Warren B. Pesetsky and Joseph S. Ryan for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (55 AD2d 866).

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


text:
    530 East 89 Corp., Appellant, v Arthur A. Unger et al., Doing Business as Unger & Unger, Respondents. (And Another Action.)
    Argued November 10, 1977;
    decided December 15, 1977

      APPEARANCES OF COUNSEL

      Benedict Ginsberg for appellant.

      Nathaniel Rothstein for respondent.
   OPINION OF THE COURT

Memorandum.

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

It is incumbent upon the plaintiff to present expert testimony to support allegations of malpractice (McDermott v Manhattan Eye, Ear & Throat Hosp., 15 NY2d 20, 24; Nauman v Beecher & Assoc., 24 Utah 2d 172; 7 Wigmore, Evidence [3d ed], § 2090), except where the alleged act of malpractice falls within the competence of a lay jury to evaluate (Hammer v Rosen, 7 NY2d 376). This case is unusual in that the alleged architectural malpractice involves protracted delays in responding to objections raised by the New York City Department of Buildings, rather than the submission of defective plans per se. Whether the allegedly inordinate delays of defendants in complying with objections of the building department constituted architectural malpractice is not within the competence of an untutored layman to evaluate. Common experience and observation offer little guidance. Absent a standard of competent architectural practice based on expert testimony, it would be difficult, if not impossible, to form a reasoned opinion as to whether, given the nature and number of objections raised as well as other relevant attendant circumstances, a delay of two years constituted incompetent architectural practice.

While plaintiff did elicit expert testimony from an architect, we agree with the Appellate Division that his testimony "is not sufficient to support a claim of negligence”. When asked to comment upon the elapsed time between the issuance of and responses to building department objections, the expert witness stated that there had generally been “an unusually long delay”, and that he "would say that there was an undue delay between some or many of the objections and the responses to these objections”. By limiting his opinion to "some or many” of the objections, the witness left it to conjecture whether those unduly delayed responses in particular proximately caused the failure of the construction project. The demise of the project may have been the result of defendants’ failure to comply with objections to which even the most diligent and competent architect would not have satisfactorily responded within the existent time constraints. Put another way, the expert testimony does not so much as imply that a competent architect would have timely complied with all the building department objections. While plaintiff, at the close of its case, is entitled to all favorable inferences reasonably drawn from the evidence (Patterson v Proctor Paint & Varnish Co., 21 NY2d 447), the fact finder may not render a factual determination devoid of support. We do not believe that the expert testimony in this case is sufficient to enable the jury to infer reasonably that defendants’ undue delays proximately caused plaintiff’s injury.

Insofar as the breach of contract cause of action is concerned, we agree with the Appellate Division that defendants never guaranteed plaintiff that they would provide plans acceptable to the department of buildings.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Cooke concur in memorandum; Judge Fuchs-berg taking no part.

Order affirmed.


text:
    Joseph Lanzi, Appellant, v Arthur Brooks, Respondent.
    Argued November 9, 1977;
    decided December 15, 1977

      APPEARANCES OF COUNSEL

      William E. J. Connor and Francis Bergan for appellant.

      Carroll J. Mealey and Robert H. Iseman for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division is affirmed, with costs, for the reasons stated in the memorandum decision of that court, with an additional observation. Plaintiff’s complaint did not allege either a present intent not to carry out the promises of future action, or, in fact, any factual assertions from which this conclusion can be drawn, and thus failed to state a cause of action for fraud based on a misstatement of future intentions (cf. Sabo v Delman, 3 NY2d 155). This failure to allege a necessary element of the cause of action, however, is not to be confused with the requirement of CPLR 3016 (subd [b]) that in an action for fraud, "the circumstances constituting the wrong shall be stated in detail”. This provision requires only that the misconduct complained of be set forth in sufficient detail to clearly inform a defendant with respect to the incidents complained of and is not to be interpreted so strictly as to prevent an otherwise valid cause of action in situations where it may be "impossible to state in detail the circumstances constituting a fraud” (Jered Contr. Corp. v New York City Tr. Auth., 22 NY2d 187, 194).

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

Order affirmed, with costs, in a memorandum.


text:
    City of New York, Respondent, v Long Island Railroad Company, Appellant.
    Argued November 11, 1977;
    decided December 15, 1977

      APPEARANCES OF COUNSEL

      David W. Cohen, Melvyn Freeman, Patricia S. Muhlrad, George M. Onken and Thomas M. Taranto for appellant.

      W. Bernard Richland, Corporation Counsel (Stephen P. Kramer and L. Kevin Sheridan of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

In 1877 Atlantic Avenue Railroad Company leased railroad right-of-way property to appellant, Long Island Railroad Company, for a term of 99 years at an annual rental computed on gross receipts from the operation of the leased property. The lessee agreed to pay all real estate taxes levied on the property. In 1895 the lease was modified to provide for a flat annual rental of $60,000; the lessee’s obligation to pay real estate taxes was not changed. Thereafter Atlantic Avenue Railroad, the lessor, was acquired by Brooklyn and Queens Transit Corporation.

By modification agreement dated May 28, 1940 between Brooklyn and Queens Transit and Long Island Railroad, the lease was extended for a term of 60 years from May 31, 1940; rental was fixed at a flat annual sum of $195,000; the lessee was relieved of its agreement to pay real estate taxes; and the lessor expressly assumed responsibility for payment of any such taxes. The modification agreement was conditioned on consummation of a proposed "Unification Plan” whereby New York City would acquire all the properties of Brooklyn and Queens Transit Corporation. On June 1, 1940 the Unification Plan was consummated and the city became owner of the railroad property. No real property taxes have been paid on the property since that date.

On January 26, 1966 Long Island Railroad became a wholly owned subsidiary of the Metropolitan Transportation Authority, and since that date has paid the city no rental, claiming that section 1275 of the Public Authorities Law entitles it to a reduction in rent.* Its contention is that $135,000 of the annual rental claimed by the city represents real estate taxes or their equivalent and that under section 1275 it is exempt from the payment of such taxes.

The city concedes that the $135,000 increase in annual rental under the 1940 modification agreement had its genesis in the amount of real property taxes then being paid by the lessee pursuant to its obligation to pay such taxes under the pre-1940 terms of the lease. That the amount of rent was fixed by the parties in relation to the current amount of taxes does not serve to alter the fact that the lessee’s obligation thereby became one to pay rent and not taxes. The agreement to pay the substantially increased rental was in consideration at least in part for the extension of the term of the lease from 1976 to the year 2000. It would make no difference if it were established that it was the precise intention of the parties to convert the city’s right to income from a taxation basis to a rental basis. Section 1275 cannot be construed to relieve Long Island Railroad of its contract obligation to pay rent as distinguished from any obligation to pay real property or franchise taxes.

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

Order affirmed.


text:
    Triboro Quilt Manufacturing Corporation, Respondent, v Nixdorf Computer, Inc., et al., Appellants.
    Argued November 15, 1977;
    decided December 15, 1977

      APPEARANCES OF COUNSEL

      Woodson D. Scott for appellants.

      Ronald L. Nurnberg for respondent.
   OPINION OF THE COURT

Order modified, with costs to plaintiff, by remitting the case to Supreme Court, New York County, for entry of a direction as to the return by plaintiff of defendants’ equipment (CPLR 3004) and, as so modified, affirmed for reasons stated in the memorandum at the Appellate Division (54 AD2d 678).

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

       Section 1275 of the Public Authorities Law insofar as relevant, provides: "property owned by the authority, property leased by the authority and used for transportation purposes, and property used for transportation purposes by or for the benefit of the authority exclusively * * * shall all be exempt from taxation and special ad valorem levies. The authority shall be required to pay no fees, taxes or assessments, whether state or local, including but not limited to fees, taxes or assessments on real estate, franchise taxes, sales taxes or other excise taxes, upon any of its property”.


text:
    Bernard B. Landers, Appellant, v State of New York, Respondent.
    (Claim No. 58343.)
    Argued November 17, 1977;
    decided December 15, 1977

      APPEARANCES OF COUNSEL

      Peter N Wells for appellant.

      Louis J. Lefkowitz, Attorney-General (George M. Thorpe and Ruth Kessler Toch of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

While claimant has submitted evidentiary proof in opposition to the State’s motion for summary judgment showing facts sufficient to require a trial as to his legal capacity to enter into the memoranda of agreement dated May 22, 1973 and June 12, 1973, it is not disputed on the record that he thereafter was paid a total of $84,330 in full satisfaction of the terms of the later memorandum. We agree with the Appellate Division that proof of acceptance of such payments, together with other undisputed evidence of claimant’s co-operation with the Department of Law, sustains the State’s defense of accord and satisfaction.

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

Order affirmed.