text:
    Jonestown Place Corp., Appellant, v 153 West 33rd Street Corp. et al., Respondents, et al., Defendants.
    Argued March 24, 1981;
    decided May 5, 1981

      APPEARANCES OF COUNSEL

      John M. Burns, III, for appellant.

      Neil S. Goldstein and Donald S. Hillman for respondents.
   OPINION OF THE COURT

Memorandum.

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

It is axiomatic that an oral agreement for the sale of real property is unenforceable under the Statute of Frauds (General Obligations Law, § 5-703, subd 2). Part performance will render the contract enforceable only where such performance is “unequivocally referable” to the alleged agreement of sale (e.g., Burns v McCormick, 233 NY 230, 232). Inasmuch as the mere purchase of an adjoining parcel of land from a third party is equivocal, it is not sufficient part performance to remove the bar of the statute (cf. Gracie Sq. Realty Corp. v Choice Realty Corp., 305 NY 271, 279-281). Nor in these circumstances may plaintiff rely upon the same alleged performance to create an estoppel and thereby circumvent the part performance rule (see Burns v McCormick, supra, at pp 234-235).

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

Order affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York, Respondent, v Frances Burwell, Appellant.
    Argued March 24, 1981;
    decided May 5, 1981

      APPEARANCES OF COUNSEL

      Howard B. Comet and William E. Hellerstein for appellant.

      Robert M. Morgenthau, District Attorney (David H. Steiner and Vivian Berger of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Term should be reversed and the accusatory instrument dismissed.

Following a trial by jury, appellant and her husband were both convicted of two counts of criminal possession of stolen property in the third degree, a misdemeanor. Although both were represented by the same retained attorney, the trial court failed to ascertain on the record whether each defendant was aware of his or her right to separate representation and of the potential risks involved in being represented by the same attorney. In such event, appellant’s conviction must be reversed if there was any significant possibility at all of a conflict of interest arising from the joint representation (People v Macerola, 47 NY2d 257, 264; People v Gomberg, 38 NY2d 307; see People v Fioretti, 49 NY2d 976; see, also, People v Baffi, 49 NY2d 820).

In this case, there were possible differences in the level of culpability of the two codefendants which “suggested different theories and tactics of defense for each” (People v Baffi, supra, at p 822). There were indications, for example, that appellant may have participated in the crimes with which she was charged only because she had been coerced by her husband. These indications are alone sufficient to support the inference that the interests of the codefendants in this criminal proceeding were not completely harmonious and, consequently, it cannot be said that their joint representation by a single attorney did not give rise to a significant potential for conflict of interest.

Because appellant has already served her sentence and the charges against her involved relatively minor crimes, we conclude that the accusatory instrument should be dismissed in its entirety (People v Scala, 26 NY2d 753; People v Witenski, 15 NY2d 392; but cf. People v Allen, 39 NY2d 916). Accordingly, we deem it unnecessary to consider appellant’s other contentions regarding the admission of certain evidence, which, it is claimed, was obtained in violation of her constitutional rights.

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

Order reversed, etc.


text:
    Patrick J. Cunningham, Respondent-Appellant, v State of New York, Appellant-Respondent.
    (Claim No. 61891.)

      Argued March 26, 1981;
    decided May 5, 1981
    APPEARANCES OF COUNSEL

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

      Marc S. Krieg for respondent-appellant.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs to defendant State of New York, by dismissing claimant’s cause of action for abuse of process and, as so modified, affirmed. The question certified is answered in the negative.

The threshold inquiry in regard to claimant’s cause of action for abuse of process is whether that claim is timely under subdivision 3 of section 10 of the Court of Claims Act, which provides: “3. A claim to recover damages for injuries to property or for personal injury caused by the tort of an officer or employee of the state while acting as such officer or employee, shall be filed within ninety days after the accrual of such claim unless the claimant shall within such time file a written notice of intention to file a claim therefor, in which event the claim shall be filed within two years after the accrual of such claim.” Claimant contends, among other things, that his notice of intention was timely because it was filed within 90 days of the dismissal of the indictments which had been found against him. It is clear, however, that the accrual of a cause of action for abuse of process need not await the termination of an action in claimant’s favor (see Keller v Butler, 246 NY 249). Upon the record before us, we must conclude that claimant’s notice was untimely.

We have considered claimant’s contentions and find them to be without merit.

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

Order modified, with costs to defendant State of New York, in accordance with the memorandum herein and, as so modified, affirmed. Question certified answered in the negative.


text:
    Betty Prager, Individually and as Administratrix of the Estate of Harry Prager, Deceased, Respondent, v Motor Vehicle Accident Indemnification Corporation, Respondent, and City of New York, Appellant.
    Argued April 1, 1981;
    decided May 5, 1981

      APPEARANCES OF COUNSEL

      Allen G. Schwartz, Corporation Counsel (Marjorie E. Bornes and Ronald E. Sternberg of counsel), for appellant.

      Philip P. Dondi and John J. Napolitano for Betty Prager, respondent.

      Thomas P. Parry for Motor Vehicle Accident Indemnification Corporation, respondent.
   OPINION OF THE COURT

Memorandum.

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

The only contention advanced by the city on this appeal is that there was insufficient evidence as a matter of law to sustain the jury finding that the outage of the traffic light at the intersection where the accident occurred was a proximate cause of the accident. We reject this contention as did the Appellate Division.

There was testimony that the traffic on Flatbush Avenue was unusually heavy at the time of the accident; that the traffic moved much more slowly when the traffic lights were working; that because of the outage the east-west traffic on Avenue I was very heavy; that cars at the intersection were “beeping” and “backed-up”; that traffic was “all screwed up”, and that cars were cutting from Avenue I through the gas station on the southwest corner of the intersection to reach Flatbush Avenue. One witness testified that there were several close calls and that he had stated at the time that there was going to be an accident.

The trial court charged the jury, inter alia, that before they could find the city liable they must find that the outage was a cause of the accident, i.e., “a substantial factor in causing the accident”; that “the fact that the lights were out in and of itself is not sufficient”. “It may be, however, that if there was a red light the unidentified driver would have come to a stop. You may also find that if the light was green and the driver had a right to proceed through the intersection, that the accident would have happened the way it did anyway.” The jury was also charged that they could find that the accident was caused by the concurrent negligence of the city and the unidentified driver or was caused by only one of them. No exception was taken to the charge.

In response to the specific question, “Was the outage a substantial factor in causing the accident?”, the jury responded unanimously in the affirmative.

We cannot say that the evidence was not sufficient to support the explicit finding of proximate causation made by the jury under the instructions given by the court.

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

Order affirmed.


text:
    Golbar Properties, Inc., et al., Plaintiffs, and Citibank, N. A., Respondent-Appellant, v North American Mortgage Investors et al., Appellants-Respondents, et al., Defendants.
    Argued April 2, 1981;
    decided May 5, 1981

      APPEARANCES OF COUNSEL

      Charles C. Parlin, Jr., Kathleen M. Comfrey, Margaret W. Wiener and Robert S. Fischler for respondent-appellant.

      Owen McGivern, Frank S. Ioppolo, Peter S. Dealey and Mitchell C. Tenzer for North American Mortgage Investors, appellant-respondent.

      George Weisz, Louis B. Kimmelman, Joan M. Shaughnessy and Richard D. Mathewson for CMEI, Inc., appellant-respondent.
   OPINION OF THE COURT

Memorandum.

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

The conclusions of the courts below with respect to the liability of the permanent take-out lender defendants for breach of their take-out mortgage financing commitment rest in very great measure on factual determinations which, having been made by the trial court and affirmed at the Appellate Division, are now beyond the scope of our appellate review; the evidence was sufficient as a matter of law to sustain the determinations made. To the extent that rules of law are involved in those determinations we conclude that no erroneous rule or standard of law was applied.

With respect to the award of damages the same considerations call for an affirmance. As to two particular issues of law that defendants-appellants stress on this appeal: there was no abuse of discretion as a matter of law when the trial court refused to accept testimony from Peter Pattison as an expert witness with respect to the value of the building at 1166 Avenue of the Americas, and there was sufficient evidence as a matter of law to support the trial court’s finding that the leasehold interest had no value either on October 31, 1974 or March 31, 1976.

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

Order affirmed.


text:
    In the Matter of Elmarth Bar & Grill, Inc., Respondent, v State Liquor Authority, Appellant.
    Argued March 23,1981;
    decided May 5, 1981

      APPEARANCES OF COUNSEL

      Stephen D. Kolinsky and Warren B. Pesetsky for appellant.

      Eugene V. Natale for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment should be reversed, with costs, and determination of the State Liquor Authority reinstated.

Inasmuch as the express factual finding made by the hearing officer, that the interdicted consumption of alcohol had taken place, would not be sufficient standing alone to support a violation of subdivision 5 of section 106, the question before us is whether the hearing officer found the second element, actual or constructive knowledge by the licensee’s principal or by another in authority. Here, however, the evidence of knowledge, an admission by the president of the licensee corporation that the employee was “having a drink after work”, not only went uncontradicted but the hearing officer expressly found the witness through whom it was introduced to be credible. Therefore, although a formal finding to that effect would have been preferable, we nevertheless may regard the second element as having been imported into the conclusionary finding that the charge was sustained.

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

Judgment reversed, etc.


text:
    In the Matter of West Farms Estate Company, Appellant, v Consolidated Edison Co. of N. Y., Inc., Respondent.
    Argued March 24, 1981;
    decided May 5, 1981

      APPEARANCES OF COUNSEL

      Leonard M. Simon for appellant.

      Joseph J. Klem and Ernest J. Williams for respondent.
   OPINION OF THE COURT

Memorandum.

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

The difficulty with petitioner’s position is that the tariff provides both that the company may elect to install more than one service lateral “for reasons of Company economy, conditions on the Company’s distribution system, improvement of service conditions, or magnitude of the Customer’s load” (art III, §5, subd [a]) and that “Upon written application * * * the Company will provide at the Customer’s expense distribution facilities for supply of service, in excess of those normally provided by the Company” (art III, § 5, subd [e]; emphasis supplied). Assuming without deciding that subdivision (a) contemplates installation of additional service laterals without charge for installation or maintenance, it cannot be concluded from the record that Consolidated Edison ever elected between the two tariff provisions, or that there is any basis for estopping it from demanding the installation and maintenance charges for which it asked.

The evidence shows no more than that the Consolidated Edison representative stated that there would be no difficulty in providing additional service laterals for the West Farms Estate project, that on other projects Consolidated Edison had installed additional laterals without charge, that on other projects the project engineer had been sent an application form when there was to be a charge for extra laterals, and that with respect to the West Farms Estate project he never received an application form or a response to his memorandum forwarding a site plan showing the additional points of entry and stating that “If I do not hear from you within a week [June 23] I will assume that they are acceptable.” That evidence spells out no more than does the tariff — that additional laterals could be obtained. It is insufficient to establish an election to make the West Farms Estate installation without charge nor does it rise to the level of an estoppel to make the installation and maintence charges demanded.

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

Order affirmed.

      . In this proceeding petitioner made no claim based upon discrimination.

      . Though a utility or carrier cannot normally be estopped from enforcing its tariff as filed (Pan Amer. World Airways v Overseas Raleigh Mfg., 51 NY2d 960), it can be argued in the present case that subdivision (a) of the tariff contemplates installation without charge. That being so, Consolidated Edison can, by its conduct, estop itself from relying upon its right under subdivision (e) to charge for such installation.


text:
    Chemical Bank, Plaintiff, v National Union Fire Insurance Company of Pittsburgh, Pennsylvania, Defendant and Third-Party Plaintiff-Respondent. George Hyam et al., Third-Party Defendants; Joseph J. Blake and Associates, Inc., Third-Party Defendant-Appellant.
    Submitted February 20, 1981;
    decided May 5, 1981
   Appeal marked withdrawn, the claim which is the subject of the appeal having been dismissed pursuant to the stipulation of settlement.


text:
    Morris C. Gurnee, on Behalf of Himself and All Others Similarly Situated, Appellant, v Aetna Life and Casualty Company, Respondent.

      Submitted March 23, 1981;
    decided May 5, 1981
   Motion for leave to appeal granted.

Judge Fuchsberg taking no part.


text:
    The People of the State of New York ex rel. Richard Jackson, Appellant, v Green Haven Correctional Facility, Respondent.
    Submitted April 27, 1981;
    decided May 5, 1981
   Motion for leave to appeal, etc., denied. On the court’s own motion, appeal taken as of right from the unanimous order of the Appellate Division dismissed, without costs, upon the ground that it does not lie.


text:
    K & S Installations, Inc., Respondent, v Dart Mechanical Corporation, Inc., Respondent, and Flushing Savings Bank, Appellant. (Action No. 1.) Dart Mechanical Corp., Respondent, v Flushing Savings Bank, Appellant. (Action No. 2.)
    Submitted April 13, 1981;
    decided May 5, 1981
   Motion for leave to appeal dismissed upon the grounds that the order of the Appellate Division insofar as it affirmed the order denying the motion to vacate the stipulation of settlement does not finally determine the actions within the meaning of the Constitution, and that no appeal lies from the order of the Appellate Division insofar as it dismissed the appeal taken from the default judgment (CPLR 5511), with $20 costs and necessary reproduction disbursements.


text:
    The People of the State of New York ex rel. Joseph Peters, Also Known as Peta, Appellant, v New York State Department of Corrections et al., Respondents.
    Decided May 5, 1981
   Appeal transferred, without costs, by the Court of Appeals sua sponte to the Appellate Division, Second Department. A direct appeal does not lie where questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3, subd b, par [2]; § 5, subd b; CPLR 5601, subd [b], par 2; Matter of Bartsch v State of New York, 33 NY2d 938).


text:
    Moshe Weinreich, on Behalf of Himself and All Others Similarly Situated, Appellant, v State-Wide Insurance Company et al., Respondents.
    Submitted March 23, 1981;
    decided May 5, 1981
   Motion for leave to appeal granted.

Judge Puchsberg taking no part.


text:
    The People of the State of New York, Appellant, v George Williams, Respondent.
    Submitted April 20, 1981;
    decided May 5, 1981
   Motion to dismiss the appeal granted and the appeal dismissed upon the ground that the reversal by the Appellate Division was not “on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90, subd 2, par [a]).


text:
    In the Matter of the Claim of Clarence Milan, Respondent, v Trico Products Corporation, Appellant. Workers’ Compensation Board, Respondent.
    Argued March 27,1981;
    decided May 7, 1981
    APPEARANCES OF COUNSEL

      Mark W. Hamberger, Marvin H. Mason and Ronald E. Weiss for appellant.

      Robert Abrams, Attorney-General (Morris N. Lissauer, Shirley Adelson Siegel and Henriette Frieder of counsel), for Workers’ Compensation Board, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the matter remitted to the Appellate Division, Third Department, with directions to remand to the Workers’ Compensation Board for further proceedings in accordance with this memorandum.

During the period of claimant’s total disability from June 7 to July 7,1977, Trico Products Corp., a self-insured employer, paid claimant his regular wage for the July 4 holiday, but did not pay disability for that day. Subsequently and after a hearing, claimant was awarded compensation for the period of disability, including the one-day holiday; Trico was denied the right to credit the holiday pay against the award. On review of that decision, the Workers’ Compensation Board affirmed the compensation award and determined further that the issue of holiday pay credit was not within the board’s jurisdiction as it was a private matter to be decided between the employer and employee. The Appellate Division affirmed.

On this record, it cannot be said as a matter of law that Trico’s claim for credit for the holiday pay does not come within the purview of section 25 (subd 4, par [a]) of the Workers’ Compensation Law, which provides for reimbursement to the employer for “payments to an employee in like manner as wages during any period of disability”. Thus, the Workers’ Compensation Board erroneously declined jurisdiction of Trico’s claim and the matter should be remitted for resolution of the claim in accordance with this memorandum.

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

Order reversed, etc.


text:
    The People of the State of New York, Respondent, v Gerald Dunbar and Donald Wolfson, Appellants.
    Argued March 30, 1981;
    decided May 7, 1981

      APPEARANCES OF COUNSEL

      J. Irwin Shapiro for appellants.

      Patrick J. Purcell, Special Assistant District Attorney, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendants appeal from their convictions of criminal sale of marihuana in the fourth degree entered, upon their pleas of guilty, in satisfaction of the indictments against them.

Contrary to defendant Wolf son’s argument, the prosecution was not barred by the alleged representation or promise that the “book would be closed” following completion of the internal, administrative investigation of marihuana use by members of the Nassau County District Attorney’s staff. Immunity may be conferred by operation of the Constitution (see NY Const, art I, § 6; People v Steuding, 6 NY2d 214) or as authorized by statute (see CPL 50.20, 190.40). Neither basis is claimed to exist here. The informal “promise” of nonprosecution, if such there was, could confer no immunity from prosecution. Except perhaps in unusual circumstances not alleged here, such a promise at most would entitle defendant to suppression of the resulting statements as involuntary (see CPL 60.45, subd 2, par [b], cl [i]).

Also rejected is the assertion by defendants Wolf son and Dunbar that the Grand Jury proceeding was defective within the meaning of CPL 210.20 (subd 1, par [c]) and 210.35 (subd 5). Defendants rely first on the failure of the District Attorney to obtain a waiver of nonresidence, required for county employment by section 13-1.0 of the Nassau County Administrative Code, for the Special Assistant District Attorney prior to presentment to the Grand Jury, asserting that the defect rendered the prosecutor a person unauthorized to appear before that body. It is true that presentation to a Grand Jury by one who has no jurisdiction over the subject matter so impairs the integrity of the Grand Jury as to require dismissal of the indictment (People v Di Falco, 44 NY2d 482). But there is no such lack of authority here. Whatever the other effects of a failure to comply with the waiver of nonresidence requirement, that omission does not affect the authority or power of an appointee to serve as Special Assistant District Attorney following appointment by the District Attorney and the taking of the oath of office. Nor does the record support defendants’ claim that other defects in the proceedings so impaired the integrity of the Grand Jury as to warrant dismissal.

Finally, defendants’ remaining contentions relate, at bottom, to the sufficiency of the evidence before the Grand Jury, claims which were waived by their guilty pleas (People v Kazmarick, 52 NY2d 322).

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v David Walstatter, Appellant.
    Argued March 31, 1981;
    decided May 7, 1981

      APPEARANCES OF COUNSEL

      John Joseph Sutter and Ruth C. Balkin for appellant.

      Patrick Henry, District Attorney (Gabrielle Weglein of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Although the testimony of the complainant and defendant was in sharp conflict on the issue of forcible compulsion, it cannot be said as a matter of law that the evidence, viewed in a light most favorable to the prosecution, was legally insufficient. Nor did the court abuse its discretion in refusing to allow defendant to use live models for an in-court demonstration. Those of defendant’s remaining contentions that are preserved for review have been considered and do not warrant reversal.

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

Order affirmed in a memorandum.


text:
    In the Matter of Janet Ceparano, Respondent, v Gordon M. Ambach, as Commissioner of Education of the State of New York, et al., Appellants.
    Argued April 1, 1981;
    decided May 7, 1981

      APPEARANCES OF COUNSEL

      James H. Whitney, Robert D. Stone and Jean M. Coon for Gordon M. Ambach, appellant.

      G. R. Bartlett, Jr., for Board of Education of the Wall-kill Central School District, appellant.

      J. Michael Eadry, Bernard F. Ashe and Rocco A. Solimando for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, the judgment of Special Term dismissing the petition reinstated and the question certified answered in the affirmative.

Section 3012 of the Education Law provides that “Teachers and all other members of the teaching staff * * * shall be appointed * * * for a probationary period of three years” (subd 1, par [a]), after which they may be recommended for appointment on tenure (subd 2). The commissioner has long adhered to the principle that only full-time teaching service fulfills the statutory requirement of a three-year probationary term so as to entitle a teacher to a tenured appointment. Inasmuch as the statute does not expressly provide a probationary term for part-time teachers, the denial of tenure credit for part-time service is not arbitrary. While public policy does not prohibit a contractual provision giving tenure credit for part-time service (Matter of Schlosser v Board of Educ., 47 NY2d 811), nothing mandates credit in the absence of such provision. Having failed to complete the probationary term with the required service, petitioner may not claim tenure by estoppel or acquiescence.

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

Order reversed, with costs, the judgment of Supreme Court, Albany County, reinstated and the question certified answered in the affirmative in a memorandum.


author: Chief Judge Cooke

text:
    Combustion Engineering, Inc., Appellant, v Travelers Indemnity Company et al., Defendants, and Aetna Casualty and Surety Company, Respondent.
    Argued March 26, 1981;
    decided May 7, 1981

      APPEARANCES OF COUNSEL

      Lawrence R. Eno, William W. Golub, Lawrence G. Golde and Ellis R. Mirsky for appellant.

      Harvey M. Sklaver and Joseph G. Gorayeb for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated in the memorandum opinion of that court (75 AD2d 777).

That court dismissed the declaratory judgment cause of action, not on the merits with respect to the substantive rights of the parties, but on the threshold procedural ground that the court was without jurisdiction as a matter of law to entertain a declaratory judgment action. “We think that this is indeed a case in which the request for a declaratory judgment is premature, depending upon a future event beyond the control of the parties which may never occur, and that, therefore, as a matter of law, the court may not entertain the claim for a declaratory judgment as against Aetna” (75 AD2d 777, 779). There was and is, therefore, no occasion for any declaration of the rights of the parties.

Chief Judge Cooke

(dissenting in part). By affirming the dismissal of this action, without comment, a majority of the court today discards the long-standing rule that requires a declaration of rights rather than dismissal of the complaint in a declaratory judgment suit entertained on the merits. Because I cannot assent to overruling a settled principle, especially without ascribing a reason, I am compelled to dissent and vote to modify by declaring the rights of the parties.

Combustion Engineering commenced this action against defendant Aetna Casualty & Surety Co. and other liability insurers, seeking in its second cause of action a declaration that the insurers were liable for a $36 million settlement paid by Combustion. Although the policy issued by Aetna only insured for claims in excess of $50 million, Special Term nonetheless refused to dismiss the action. The Appellate Division modified and dismissed the complaint insofar as it sought declaratory relief.

Inasmuch as the Aetna policy only covers liability in excess of $50 million, the Appellate Division was undoubtedly correct in deciding that the $36 million settlement alleged in the complaint did not trigger Aetna’s duty to indemnify. Rather than dismiss the complaint, however, the court should have declared the rights of the parties. Quite simply, judgment should be entered in favor of Aetna declaring that it is not liable for the claim pleaded (e.g., Lanza v Wagner, 11 NY2d 317, 334 [Fuld, J.]). For unknown, unarticulated reasons, this court has now chosen to affirm the error at the Appellate Division.

The principle is too well engrained to dispute that a complaint in an action ripe for declaratory relief should not be dismissed merely because plaintiff is not entitled to prevail on the merits (e.g., Lanza v Wagner, supra; 3 Weinstein-Korn-Miller, NY Civ Prac, par 3001.13, pp 30-95 to 30-96 ; par 3001.18, pp 30-105 to 30-107; Siegel, New York Practice, § 440). Indeed, only a few short months ago, this court extended the rule so far as to require a declaration in a case where the complaint contained a pleading defect (Greschler v Greschler, 51 NY2d 368, 378). In Greschler, the court directed a declaration that the complaint failed to allege fraud with sufficient particularity to satisfy CPLR 3016 (id., at pp 375, 378). Certainly if a declaration is required where the action fails for a pleading defect, a fortiori it is necessary where plaintiff is not entitled to recover on the merits. This was the precise holding of the Lanza v Wagner (supra) decision. (The basic similarity of the procedural posture here and that in Lanza is demonstrated in the Appellate Division memorandum there [15 AD2d 552].)

Today’s result might be understandable had plaintiff’s claim been contingent upon future events or otherwise nonjusticiable (see 3 Weinstein-Korn-Miller, NY Civ Prac, pars 3001.09a to 3001.09d). In such a case, the action would be subject to dismissal. As it is, however, plaintiff has alleged a live controversy concerning whether Aetna is liable for the $36 million settlement. Although plaintiff on this appeal has attempted to. inject extraneous matter and has claimed that it may be held liable for more than $36 million in the future, this should not obscure the simple fact that plaintiff alleged only the $36 million settlement in its complaint. Future contingencies were thus not pleaded and are totally immaterial.

In sum, this case presents a rather uncomplicated issue: whether a declaratory judgment action should be dismissed where plaintiff seeks a declaration that its insurer is liable for a claim not covered by the insurance policy. The answer, too, is straightforward: it is error to dismiss merely because plaintiff is not entitled to relief on the merits. Case law decided so recently sanctions nothing less than a declaration of the rights of the parties (Greschler v Greschler, supra [decided Nov. 25, 1980]).

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

Order affirmed, with costs, in a memorandum.


text:
    Willets Point Contracting Corporation, Appellant, v Hartford Insurance Group et al., Respondents.
    Argued March 27, 1981;
    decided May 7, 1981

      APPEARANCES OF COUNSEL

      Harvey Weinig and Stephen A. Ressa for appellant.

      James M. O’Brien and Michael F. Sheehan for Hartford Insurance Group, respondent.

      Edward G. McCabe, County Attorney (Robert O. Boyhan of counsel), for Nassau County, respondent.
   OPINION OF THE COURT

Memorandum:.

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

While the comprehensive general liability policy’s broad definition of property damage provides coverage for loss of use of tangible personal property without physical damage thereto, exclusion “(m)” explicitly disclaims coverage where the injury results from a breach of contract, as in this case. As to the umbrella policy, its narrower definition of property damage does not encompass the nonphysical injury suffered by the plaintiff. Thus even though the alleged “ultimate net loss” was in excess of this policy’s $10,000 “retained limit”, the insurer’s obligation to indemnify was not triggered.

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

Order affirmed, with costs, in a memorandum.


author: Gabrielli, J.

text:
    Edgar M. Miller et al., Respondents, v Edgar S. K. Merrell, 2d, Appellant.
    Argued March 23, 1981;
    decided May 7, 1981

      APPEARANCES OF COUNSEL

      John F. Lawton and Robert C. Zundel, Jr., for appellant.

      Leonard H. Amdursky for respondents.
   OPINION OF THE COURT

Memorandum.

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

The Appellate Division having reversed on the facts, our task is to determine which findings are supported by the weight of the credible evidence (Electrolux Corp. v Val-Worth, Inc., 6 NY2d 556, 563; Cohen and Karger, Powers of the New York Court of Appeals, § 112; 4 NY Jur 2d, Appellate Review, p 462, § 361; cf. Matter of Mahoney v May, 40 NY2d 906), taking into account in a close case “the fact that the trial judge had the advantage of seeing the witnesses” (York Mtge. Corp. v Clotar Constr. Corp., 254 NY 128, 134).

Whether, as the Appellate Division found, the parties agreed to purchase the Peakes’ 83-acre woodlot as an addition to the Crystal Lake property turns largely on whether defendant ever agreed to act for himself, his brother and his two cousins (the plaintiffs), whether he advised plaintiff John Miller that they all should buy the Peake property because of the Forestry Act, and whether John ever informed defendant that John and his brother wished to purchase the woodlot in their names alone. Defendant testified that he offered John and his brother the opportunity to join in the purchase but never agreed to make the purchase for all because he was incensed by John’s statement that he and his brother wished to purchase for themselves and by John’s interference with and jeopardizing of defendant’s relationship with the Peakes, who were his clients. He also testified that he told John Miller in answer to a question the price the Peakes wanted for the lot but never asked John for a check for one quarter of it, and that he never stated that the Forestry Act was a reason, for joint purchase. John Miller denied saying that he and his brother wished to purchase the property alone but conceded that he had said when first told about the property that he would like to buy the woodlot personally. He testified that he discussed with defendant and defendant’s father the purchase of the property and was told by defendant to send him a check for one quarter of the purchase price, and that defendant told him that the four of them should buy the lot because it would enhance the Crystal Lake property and give them more woodland under the Forestry Act. The situation is, thus, one in which credibility plays a major part and the Trial Judge’s advantage in seeing the witnesses should not be ignored.

A number of factors in addition to the deference due the Trial Judge’s finding put the weight of the evidence on defendant’s side. Though defendant’s brother testified that he told defendant the property could not be taken in defendant’s own name and that he and- his father were surprised by the defendant’s statement that he intended to do so, the Peakes testified that defendant’s father prepared and oversaw the execution of the deed from the Peakes to defendant, and defendant’s brother conceded that the acknowledgement of the deed was taken by his father. Since the Crystal Lake property was held at the time by plaintiffs and defendant’s father, it may be inferred from the father’s drawing of the deed that defendant’s father, who also acted as attorney for plaintiffs in some matters, did not believe defendant was violating any. duty to himself or to plaintiffs in taking title to the 83 acres in his own name. Moreover, plaintiffs made no showing that acquisition of the additional 83 acres made any legal difference under the Forestry Act. The fact that defendant offered plaintiffs the opportunity of joining in the purchase is inconsistent with an intent on defendant’s part to act improperly and does not, without more, spell out a joint purchase agreement. Since defendant never undertook to purchase for plaintiffs and his brother and himself, the agency rule stated in the Restatement of Restitution (§ 194, subd [2]), is inapplicable (see § 194, Comment f, at p 799: cf. Restatement, Agency 2d, § 393).

Absent the “apparent and implied agreement” upon which the Appellate Division relied, defendant can be held a constructive trustee only if the law imposed upon him the obligation, regardless of intent, of acting in relation to the Peake property for plaintiffs as well as himself, or in preference to himself. The possible bases for imposing such a duty are the relationship of the Peake property to the Crystal Lake property, the interests of the parties in the Crystal Lake property, the familial relationship and the professional relationship between defendant and plaintiffs. The first imposes no such obligation, however, for, as already noted, plaintiffs have not established any advantage under the Forestry Act in the acquisition of the Peake lot by the owners of the Crystal Lake property, and the contiguity of the parcels alone creates no duty. Nor on the facts of this case does the second, for when defendant bought the Peake lot in 1972 neither he nor his brother had any interest in the Crystal Lake property. That either or both might eventually inherit or be given their father’s half interest in it did not require that they act before such gift or inheritance as if they owned that interest.

Such familial or professional obligation as defendant had was satisfied by his bringing to plaintiffs’ attention the availability of the property for purchase. The facts that in 1965 defendant had prepared the Forestry Act application for the Crystal Lake property and that he worked out and gave to his father apportionments between plaintiffs and his father of the taxes on the property for some years did not make defendant the attorney for plaintiffs in relation to that property, and such other legal matters as the firm handled for plaintiffs gave rise to no duty on the part of a member of the law firm not to purchase land contiguous to plaintiffs. The opportunity to purchase came to defendant because of his representation of the Peakes, who testified that they offered it to defendant rather than for sale generally and that they thought it strange that John Miller, who asked Mrs. Peake for the key to a cabin on the property, “was butting in on us.”

Acquisition of the Peake lot by the owners of the Crystal Lake property, though it would have increased the acreage they held, was in no way necessary to their continued holding or use of their own property. Though we do not disagree with the law upon which the Appellate Division relied, we find no basis on the facts of this case in the law of contracts, agency, trusts or restitution for holding defendant to be a constructive trustee of the 83 acres acquired by him from the Peakes.

Gabrielli, J.

(dissenting). A constructive trust may be imposed “[w]hen property has been acquired in such circumstances that the holder of legal title may not in good conscience retain the beneficial interest” (Beatty v Guggenheim Exploration Co., 225 NY 380, 386; see 1 Scott, Trusts [3d ed], § 44.2, p 337; 4 Pomeroy’s Equity Jurisprudence [5th ed], § 1053, p 119). The equitable doctrine is invoked in most cases to remedy the breach of a duty arising from a confidential or fiduciary relationship (see Bogert, Trusts & Trustees [2d ed], § 482, p 280). In some instances, the breach may consist of the failure of one in whom trust has been reposed to honor the terms of an express or implied promise to act in another’s interest (see, e.g., Sharp v Kosmalski, 40 NY2d 119, 121; Sinclair v Purdy, 235 NY 245). In other cases, a constructive trust has been imposed to prevent a coventurer from enjoying the benefits of a joint opportunity which he has. wrongfully appropriated to himself in derogation of the rightful expectations of the other coventurers (see, e.g., Meinhard v Salmon, 249 NY 458). Since, in my view, both of these conditions were present in the instant situation, I would uphold the imposition of a constructive trust upon the property which defendant Edgar S. K. Merrell, II, improperly acquired for himself.

There can be no serious dispute concerning the existence of a confidential relationship among the various parties. Defendant Edgar S. K. Merrell, II, who is an attorney, had handled several legal transactions for his cousins, Edgar M. and John Miller, including the administration of the estate of which the property known as Crystal Lake was a part. He had also managed the payment of the annual property taxes.on Crystal Lake and had negotiated favorable tax treatment for the parcel with the Department of Environmental Control. Such past dealings in relation to the Crystal Lake property, coupled with the close familial ties that existed between defendant Edgar S. K. Merrell, II, and his cousins, certainly were sufficient to give rise to a relationship of trust among the parties, notwithstanding that defendant had not been formally retained by plaintiffs to represent them in the purchase of the Peake parcel, which adjoined Crystal Lake.

Although they do not dispute that a confidential relationship existed, a majority of the members of this court find no basis for the imposition of a constructive trust in this case. Relying primarily upon the factual findings of the trial court, the majority has concluded that defendant Edgar S. K. Merrell, II, did not, either expressly or impliedly, promise to purchase the Peake property on behalf of the four individuals who had a beneficial interest in the adjacent Crystal Lake parcel and that, consequently, the constructive trust remedy is not warranted. It is on this point that I find I must part company with my colleagues, since, in my view, the weight of the evidence clearly supports the factual conclusion of the Appellate Division that defendant’s conduct constituted an implied promise to act in plaintiffs’ behalf.

The Crystal Lake property was owned by plaintiffs Edgar M. and John Miller and by defendant’s father, Nathaniel E. Merrell. Defendant and his brother, Nathaniel B. Merrell, however, had built “camps” on the property and regularly used it for recreational purposes. Plaintiff John Miller testified at trial that some time during the month of June, 1972, defendant Edgar S. K. Merrell approached him to advise him that the 83-acre woodlot adjoining the Crystal Lake parcel was for sale and to inquire whether Miller was interested. According to Miller, he at first expressed an interest in purchasing the property for himself, but later changed his mind and agreed with defendant when defendant stated the property should be purchased by the four cousins who used Crystal Lake in order to protect their right to favorable tax treatment. As a result of this conversation, according to Miller, he was left with the impression that defendant would negotiate a purchase of the woodlot from the Peakes, who were defendant’s clients, and would arrange for title to be placed jointly in the names of the four cousins.

Miller further testified that some time during July, he visited defendant’s law office to discuss the purchase of the Peake woodlot. During this meeting, according to Miller, defendant’s father, who practiced law in the same building, took out an atlas, in defendant’s presence and showed Miller the precise boundaries of the Peake parcel. Finally Miller stated that he, defendant and defendant’s father had a “general conversation” about the anticipated joint purchase.

The next conversation plaintiff John Miller had with defendant Edgar S. K. Merrell concerning the Peake property occurred in early August of 1972. According to plaintiff, Merrell informed him that the Peakes wanted only $650 for the property and that he (Merrell) would “take care of it” if Miller sent him a check for one quarter of the purchase price. Apart from a brief conversation concerning whether the property should be purchased in the names of the four cousins individually or in the name of the estate of which Crystal Lake was originally a part, plaintiff Miller heard nothing further from his cousin until early September, when he was called to defendant Merrell’s office and informed that Merrell had purchased the property for himself.

Interestingly, although defendant Merrell’s version of the events leading to his individual purchase of the Peake property differed somewhat from the version recounted by plaintiff John Miller, Merrell’s testimony is not inconsistent at all with the notion that Merrell had impliedly promised to act on plaintiffs’ behalf. Merrell acknowledged that he had called on Miller to ask him whether he was interested in the Peake property and that Miller had responded affirmatively. Significantly, Merrell stated that he offered the property to his cousin, John Miller, because he “felt the decent thing to do would be to * * * include him”. Defendant Merrell also acknowledged that he was aware that Miller had been shown the boundaries of the Peake property while he was in defendant’s law office, although he denied having participated in any “general conversation” concerning the planned purchase of the woodlot. Finally, Merrell admitted that he had told his cousin of the asking price for the Peake property in August of 1972, but stated that he had no recollection of having asked Miller to send him a check for his share of the price.

Defendant’s testimony on the question whether joint ownership of the property was ever explicitly discussed was somewhat equivocal, since he was unable to recall the specifics of many of the critical exchanges which took place between himself and his cousin. Merrell was able to state with certainty that he never suggested that the property be purchased in the name of the estate associated with Crystal Lake, but he noted that his certainty arose only from the fact that, as an attorney, he knew that the estate had no legal capacity to acquire title. Merrell was not able to state unequivocally that ownership of the property by the four cousins who used Crystal Lake was never discussed; instead, he merely testified that he had no recollection of such discussion.

Even if defendant’s somewhat ambiguous testimony is credited, there is ample basis for concluding, as the Appellate Division did, that an implied promise had been made. Plaintiff John Miller had grown accustomed to relying upon his cousin, Edgar S. K. Merrell, II, to handle the legal details associated with the Crystal Lake property. When Merrell approached Miller and asked him if he were interested in acquiring the adjacent Peake woodlot, it was only natural for Miller to assume that his cousin would continue to represent his interests if he responded affirmatively. And, this assumption would seem to have been wholly warranted in light of defendant Merrell’s admission at trial that he only decided to ignore his cousin’s interests and purchase the Peake parcel for himself in August of 1972, when he became angered at his cousin’s behavior. Indeed, the only reasonable inference that could be drawn from defendant Merrell’s conduct in keeping plaintiff informed of the status of the Peake property was that he intended to negotiate the purchase of the property on behalf of plaintiff and the other parties who shared an interest in Crystal Lake.

As a result of his professional and familial ties to the Miller brothers, defendant Merrell had an affirmative obligation not to mislead them concerning his intentions to represent their interests in connection with the purchase of the Peake parcel. At the very least, he had a duty to inform plaintiff John Miller when he decided to purchase the property for himself. His failure to do so in the face of his certain knowledge that Miller wanted the property and assumed that defendant would make the necessary arrangements is a circumstance from which we may infer the existence of an implied promise (see Sharp v Kosmalski, 40 NY2d 119, supra) “Though a promise in words was lacking, the whole transaction * * * was ‘instinct with an obligation’ imperfectly expressed” (Sinclair v Purdy, 235 NY 245, 254, supra, quoting Wood v Duff-Gordon, 222 NY 88, 91).

Moreover, the parties’ joint interest in the Crystal Lake property may be regarded as an alternative basis for imposing a constructive trust in this case. There can be little doubt that the availability of the Peake property constituted an appealing “opportunity” to the individuals who possessed an interest in the adjacent Crystal Lake parcel. Under settled principles of equity jurisprudence, such an opportunity could not be appropriated by one of the “co-venturers” in Crystal Lake unless he first offered the other interested parties a chance to participate (Meinhard v Salmon, 249 NY 458, supra).

The majority apparently recognizes the applicability of these equitable principles to the facts in this case, but nonetheless declines to invoke them as a basis for imposing a constructive trust because defendant Merrell possessed no actual legal interest in the Crystal Lake property at the time he purchased the Peake parcel. The majority’s reliance on the technicalities of title, however, is misplaced in this context, for the absence of record ownership in defendant cannot negate the fact that, in reality, he was a “co-venturer” in the beneficial use of Crystal Lake.

It is undisputed that defendant and his brother Nathaniel had set up “camps” on the Crystal Lake parcel for their own personal use. Similar use of the property was made by plaintiffs John and Edgar M. Miller. Moreover, although legal title to the Merrells’ share of the property remained in defendant’s father, defendant acknowledged that he fully expected to inherit it upon his father’s death. Finally, defendant Merrell’s continuous use and management of the property stand as clear indications of his proprietary interest in the parcel.

Equity demands that we “look through mere form to the substance of things” (Zeiser v Cohn, 207 NY 407, 419). Here, although formal title resided elsewhere, there can be no doubt that the four cousins, the Merrell brothers and the Miller brothers, were, in the substance, coventurers with respect to Crystal Lake. Their shared interest in the property, in turn, gave rise to an obligation in each to refrain from acting in secret and appropriating an opportunity which properly belonged to all four. Since defendant Merrell cynically breached this obligation by acquiring the Péake parcel for himself, equity requires no less than that a constructive trust be imposed upon his acquisition for the benefit of those whose rights were disregarded.

For all of these reasons, I most respectfully dissent and cast my vote to affirm the order of the Appellate Division.

Judges Jasen, Wachtler, Fuchsberg and Meyer concur in memorandum; Judge Gabrielli dissents and votes to affirm in an opinion in which Chief Judge Cooke concurs; Judge Jones taking no part.

Order reversed, etc.


text:
    In the Matter of June S. Weirich, Respondent, v Joseph F. Griffo, as Treasurer of the County of Livingston, et al., Appellants.
    Decided May 7, 1981

      APPEARANCES OF COUNSEL

      Carl R. Krause for appellants.

      Leo J. Fallon for respondent.
   OPINION OF THE COURT

On summary consideration, determination appealed from and order of the Appellate Division brought up for review reversed, with costs, and the original determination of dismissal reinstated (Matter of Pell v Board of Educ., 34 NY2d 222).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones and Wachtler. Judges Fuchsberg and Meyer dissent and vote to affirm for reasons stated in the memorandum at the Appellate Division (78 AD2d 969).


text:
    The People of the State of New York, Respondent, v Jesus Fuentes, Appellant.
    Argued April 2,1981;
    decided May 12, 1981

      APPEARANCES OF COUNSEL

      Donald M. Zolin for appellant.

      Robert M. Morgenthau, District Attorney (Susan Corkery and Jerrold L. Neugarten of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

We agree with the court below that the trial court did not abuse its discretion when it denied defendant’s requests to reopen the Wade hearing during the course of the trial. A trial court may reopen a pretrial hearing if it “is satisfied, upon a showing by the defendant, that additional pertinent facts have been discovered by the defendant which he could not have discovered with reasonable diligence before the determination” of his pretrial application. (CPL 710.40, subd 4.) Here, defendant failed to establish any such pertinent facts in support of his motions at trial which would justify the reopening of the Wade hearing. Thus, the trial court committed no error when it refused defendant’s requests to reopen the hearing.

We have considered defendant’s remaining contentions and have found them to be without merit.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Michael R. Palumbo, Appellant.
    Decided May 12, 1981

      APPEARANCES OF COUNSEL

      Allen Green for appellant.

      Robert M. Morgenthau, District Attorney (Norman Barclay of counsel), for respondent.
   OPINION OF THE COURT

On summary consideration, order affirmed. There was no error of law in the Appellate Division’s affirmance of the judgment of conviction upon our remission for a determination of the facts pursuant to CPL 470.40 (subd 2, par [b]). There is no merit to defendant’s contention that an affirmance was precluded by the doctrine of the law of the case.

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


author: Jones, J.

text:
    In the Matter of Inez Bosh, Respondent, v John Fahey, as Commissioner of the Albany County Department of Social Services, et al., Appellants.
    Argued March 27, 1981;
    decided May 12, 1981

      Matter of Bosch v Fahey, 74 AD2d 102, reversed.
    APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Alan W. Rubenstein and Shirley Adelson Siegel of counsel), for Barbara Blum, as Commissioner of the New York State Department of Social Services, appellant.

      Robert G. Lyman, County Attorney (Alan P. Joseph and Philip R. Murray of counsel), for John Fahey, as Commissioner of the Albany County Department of Social Services, appellant.

      V. Jerome Luhn for respondent.
   OPINION OF THE COURT

Memorandum.

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

The Appellate Division concluded that, in computing a family’s entitlement to public assistance benefits, the Department of Social Services must disregard any OASDI (Old-Age, Survivors’ and Disability Insurance) benefits received by a family member between the ages of 18 and 22 who is currently attending school on a full-time basis. This conclusion was based, in part, upon an “Action Transmittal —Interpretation” issued by the Department of Health and Welfare which directed State agencies to disregard such income in accordance with the decision in Elam v Hanson (384 F Supp 549). Inasmuch as the applicable Federal statutes plainly mandate a contrary conclusion, we hold that the decision of the Appellate Division must be reversed.

As a general rule, Federal law requires State agencies to take into consideration any income or resource of eligible family members in determining the family’s need (US Code, tit 42, § 602, subd [a], par [7]; see Social Services Law, § 131-a, subd 1). Under existing Federal regulations, most Social Security payments are to be treated as income for this purpose (45 CFR 233.20[a] [4] [i]). Thus, although prior to 1965 individuals over the age of 18 were not eligible to receive Social Security benefits, State social service agencies have always been directed to deduct the Social Security benefits received by their younger counterparts in determining the family’s public assistance need.

In 1965, Congress enacted the statute at issue in this case, which extended Social Security benefits to dependents between the ages of 18 and 22 who attend school on a full-time basis. (Public Law 89-97, § 306, 79 US Stat 370, codified at US Code, tit 42, § 402, subd [d], par [1], cl [B], subdcl [i]). Contrary to the assumption made in the court below, there is absolutely no evidence that Congress intended to require State social service agencies to treat the payments authorized under the new statute any differently than they had been treating the Social Security benefits received by family members under the age of 18. Indeed, the evidence points in the opposite direction. Had Congress not assumed that the newly authorized payments would be regarded as income for public assistance purposes, it would not have found it necessary to add section 406 of the act, which enables State agencies to disregard the lump-sum, retroactive payments that were to be received by the designated eligibles as a result of the legislation, “[n]otwithstanding the provisions of” section 602 (subd [a], par [7] [emphasis supplied]; see Report of the Senate Finance Committee in Relation to Public Law 89-97, No. 404, reprinted in 1965 US Code, Cong and Admin News 1943, 2089, 2212). Obviously, if Congress had intended to mandate that all of the benefits paid under the act be disregarded, there would have been no need for it to specify that the retroactive portion of the payments may be disregarded at the election of the States.

We are aware that the Department of Health and Welfare, the Federal agency charged with administering the Social Security Act, has embraced a contrary interpretation of the applicable statutes and has directed the State social service agencies to comply with its views. We are also aware that the public assistance portion of the Social Security Act represents a “ ‘scheme of cooperative federalism’ ” (Matter of Jones v Berman, 37 NY2d 42, 52, quoting King v Smith, 392 US 309, 316), which ordinarily requires States electing to participate in the program to comply with the relevant Federal regulations (Hagans v Lavine, 415 US 528, 530, n 1; Matter of Dunbar v Toia, 45 NY2d 764, 766; Matter of Beaudoin v Toia [Jorczak], 45 NY2d 343, 348; see Social Services Law, § 358, subd 1). We cannot, however, agree with petitioner’s contentions that the “scheme of cooperative federalism” implicit in the public assistance system requires States to adhere blindly to all Federal directives, no matter how irrational or inconsistent with applicable Federal law. In instances such as this, where the Federal agency’s interpretation manifestly “runs counter to the clear wording of a statutory provision” (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459), as well as the underlying legislative intent, we think that the State agency is entitled to rely upon the Congressional mandate despite the existence of a contradictory directive issued by the Department of Health, Education and Welfare. We find it significant in this connection that the Federal agency is itself limited to promulgating rules and regulations which are “not inconsistent with” the provisions of the Social Security Act (US Code, tit 42, § 1302).

We recognize that our holding today may engender certain practical difficulties due to the disparity between the interpretation adopted by the State commissioner and approved by this court and the interpretation of Federal law which the Department of Health and Welfare has adopted. Since the States are generally required to administer their public assistance programs in a manner which conforms to the requirements of the Social Security Act and Federal regulations lawfully promulgated thereunder (US Code, tit 42, §§ 601-604), the State commissioner may actually be risking a loss of Federal funds by adhering to an interpretation of law which varies from that adopted by the Federal agency (see Hagans v Lavine, supra, at p 530, n 1). Nonetheless, although we remain concerned with the practical consequences of our decision, we cannot permit our concerns to dissuade us from deciding the controversy at hand — whether the petitioner, who has placed her dispute before the New York courts, is, in fact, entitled to the benefits she seeks under existing Federal law. If, as a practical matter, our negative answer to this question places the State of New York at odds with the Federal Department of Health and Welfare, the State is presumably sufficiently equipped to seek an ultimate resolution of the dispute in a more appropriate, Federal forum.

Jones, J.

(dissenting). I would affirm the disposition below and decline the invitation of the State and local Departments of Social Services to invalidate the Federal “Action Transmittal — Interpretation” on which that disposition was premised.

I do not doubt the jurisdictional power of our court to review and invalidate the ruling of the Federal agency; I do question the jurisprudential wisdom of our court’s exercising that power in the circumstances of this case. The administration of the Aid to Families with Dependent Children program, indeed even the availability of Federal moneys to support the administration and benefits of that program in our State, depends on our State’s maintaining conformity with the requirements and conditions laid down by the Congress as implemented by regulations and rulings of the Department of Health and Welfare, the Federal agency charged with administrative responsibility for the program.

Proper respect for and the application of the principle of judicial abstention dictate constraint on the part of State courts before proceeding to the invalidation of regulations and rulings of a Federal agency. Experience demonstrates that there is a continuing resonance, sometimes tension, .between the State and Federal agencies with respect to the details and particulars of State administration of the Federally sponsored program. After approval of the basic State plan, there continues almost constant communication and negotiation by correspondence and conference between representatives of the two governmental agencies. Practical resolutions and accommodations are sometimes postponed for substantial periods of time.

In my view, when an impasse is reached, calling for judicial resolution, the appropriate forum for such proceedings is the Federal court. Both agencies may then be made parties to the proceedings, with full opportunity to be represented and to be heard. Invalidation, if any, would be binding and conclusive nationwide.

.When, as has the majority in this case, a State court accepts the invitation of its own State agency to invalidate a ruling of the. Federal agency there necessarily is an unfortunate component of nonfinality giving rise to practical uncertainty. The Department of Health and Welfare obviously is not bound by this court’s decision in this case. It will be wholly free to insist on recognition in the State of New York of the ruling today held invalid, by recourse to administrative sanctions including at the extreme withholding of Federal moneys. Certainly our ruling can have at best only persuasive impact on the application of the Federal ruling in other States. Aside from what I perceive as consequential awkwardness, I regard it as unwise and inconsistent with sound judicial principle to invalidate a ruling of the responsible Federal administrative agency in an action between an individual welfare recipient and the State and local agency without having the benefit of a full exposition of the views of the agency responsible for- promulgating and enforcing the particular ruling with respect to the merits of the challenge to the ruling at issue.

Accordingly, I would vote to affirm the disposition below on the principle of judicial abstention, without reaching or considering the merits of the challenge to the Federal ruling.

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

Order reversed, etc.

      . An “Action Transmittal — Interpretation” is a bulletin sent to the State agencies by the Department of Health and Welfare to advise them of current Federal policy and departmental views regarding the proper application of the public assistance laws. In the instant case, the parties have raised some question as to whether an “Action Transmittal — Interpretation” has the same status as a formal regulation, notwithstanding that it has not been published in. advance in accordance with the Federal Administrative Procedures Act (compare US Code, tit 5, § 553, subd [b], with US Code, tit 5, § 553, subd [a], par [2] ; see, also, Rodriguez v Swank, 318 F Supp 289, affd 403 US 901). Nevertheless, we deem it unnecessary to resolve this dispute, since the rationale underlying our decision in this c9.se applies equally to official regulations and less formal administrative pronouncements by the Federal agency concerning the applicability and effect of Federal law. We note, however, that although the Department of Health and Welfare regards an “Action Transmittal — Interpretation” as having a somewhat lesser status than a formal regulation, it nevertheless considers the former to be as binding upon State agencies as the latter (“Action Transmittal”, SSA-AT-78-28, Department of Health and Welfare, July 11, 1978).

      . Although the legislation was not actually enacted until July of 196B, Congress specifically provided that the newly authorized benefits would be payable “after December, 1964” (Public Law 89-97, §306, subd [d]). Thus, the statute expressly contemplated the retroactive payment of benefits.

      . We similarly reject petitioner’s contention that our court lacks the power to go beyond the mere enforcement of the Federal rule in' this case and to inquire into the underlying validity of the Federal rule in issue. This contention is based upon a line of cases in which it was held that State courts have no subject matter jurisdiction to review Federal administrative orders (Fieger v Glen Oaks Vil., 309 NY 527, 533-534; Wasservogel v Meyerowitz, 300 NY 125,133-134; Matter of Armand Schmoll, Inc. v Federal Reserve Bank of N. Y., 286 NY 503; but see Leighton v Bearman, 302 NY 865). Whatever the continuing vitality of these cases (cf. Bodrick v Mayfair Constr. Corp., 38 NY2d 926, cert den 429 US 825), however, we cannot agree with petitioner that their holdings should be applied in a unique context such as this, where the States clearly have been given authority concurrent to that of the Federal agency to implement and enforce the provisions of Federal law.

       It would be unfortunate if this case were to set a precedent for State and local Departments of Social Service, at odds with their Federal counterpart, to diminish welfare benefits in violation of Federal regulations or rulings thought by them to be objectionable in the expectation that judicial challenge would be mounted in State rather than Federal courts.


text:
    In the Matter of William Heslin, as President of the Cohoes Police Benevolent and Protective Association, Appellant, v City of Cohoes, Respondent.
    Argued April 27,1981;
    decided May 12, 1981

      APPEARANCES OF COUNSEL

      Richard R. Rowley and Paul J. Campito for appellant.

      Jean Mary Reinhardt, Corporation Counsel, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the motion to confirm the arbitration award granted for the reasons stated in the dissenting opinion of Justice Herlihy of that court.

In addition, we would emphasize that the appointment to be made in furtherance of the arbitration award is provisional in nature, and in no way binds the municipality to select a permanent appointee to the position from a statutorily inadequate list (Civil Service Law, §61, subd 1). Therefore, the award cannot be said to violate public policy (see Matter of Sprinzen [Nomberg], 46 NY2d 623).

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

Order reversed, with costs, and the motion to confirm the arbitration award granted in a memorandum.


text:
    In the Matter of Theresa Bujnicki, Respondent, v Fred J. Buscaglia,. as Commissioner of the Erie County Department of Social Services, et al., Appellants.
    Argued April 28, 1981;
    decided May 12, 1981

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Alan W. Rubenstein and Shirley, Adelson Siegel of counsel), for Barbara Blum, as Commissioner of the New York State Department of Social Services, appellant.

      Thaddeus J. Szymanski, County Attorney (John J. Barone and Howard B. Frank of counsel), for Fred J. Buscaglia, as Commissioner of the Erie County Department of Social Services, appellant.

      David A. Munro for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (77 AD2d. 809).

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


text:
    The People of the State of New York, Respondent, v Glenn Fisher, Appellant.
    Argued April 2, 1981;
    decided May 12, 1981

      APPEARANCES OF COUNSEL

      Irving Anolik for appellant.

      Robert M. Morgenthau, District Attorney (Allen Alpert and Robert M. Pitler of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The trial court did not err in allowing Dr. Carlton, a psychiatrist, to testify as to the phenomenon of “repression”. This witness’ opinion did not go directly to the issue of the truth or falsity of Ms. Edwards’ story. In essence, it went to explain, with reasonable medical certainty, that it was possible for an individual to initially unconsciously block out certain facts or feelings, real or imagined, which follow in the train of a traumatic event, but to recall them at a later time. Specifically, the doctor did not venture an opinion,-directly or indirectly, as to whether the belated memory on which Ms. Edwards relied at trial was of fancy or fact or an admixture of both.

As to the defendant’s other contentions, we find them either to be unpreserved or without merit.

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

Order affirmed in a memorandum.


text:
    Farm Stores, Inc., Respondent, v School Feeding Corp. et al., Appellants, et al., Defendants.
    Decided May 12, 1981

      APPEARANCES OF COUNSEL

      Irving K. Fingerit for appellants.

      Irving Levine for respondent.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs. We agree with the Appellate Division that plaintiff was entitled to recover a monthly service charge on the balance due and owing to plaintiff for goods sold and delivered in accordance with the express agreement of the parties. Furthermore, we cannot say that the court abused its discretion as a matter of law in permitting plaintiff to discontinue its second cause of action without prejudice.

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


text:
    The People of the State of New York, Respondent, v James L. Boyd, Appellant.
    Argued April 3, 1981;
    decided May 12, 1981

      APPEARANCES OF COUNSEL

      Michael J. Obus and Matthew Muraskin for appellant.

      Denis Dillon, District Attorney (Robert M. Nigro and William C. Donnino of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed for the reasons stated in the memorandum at the Appellate Division (74 AD2d 647).

To make clear our concurrence as to procedure to be followed in future cases, we reiterate the Appellate Division’s suggestions that names of prospective witnesses should be obtained from the attorneys outside the presence of the jury and presented to prospective jurors during voir dire without attribution to either party, and that absent a request by defendant the Trial Judge may make no comment concerning defendant’s right not to testify.

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

Order affirmed in a memorandum.


text:
    In the Matter of Antonio Parisi, Appellant, v Waterfront Commission of New York Harbor, Respondent.
    Decided May 12, 1981

      APPEARANCES OF COUNSEL

      Bennett M. Epstein for appellant.

      David B. Greenfield for respondent.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division.

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


text:
    Walter Noga et al., Appellants, v Monroe Medi-Trans et al., Respondents.
    Decided May 12, 1981
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upiu the ground that the dissent at the Appellate Division is not on a question of law (CPLR 5601, subd [a], par [i]).


text:
    In the Matter of P.G.P. Entertainment Corp., Appellant, v State Liquor Authority, Respondent.
    Submitted May 4, 1981;
    decided May 12, 1981
   Motion for an order directing the State Liquor Authority to limit its inquiry on reconsideration or, in the alternative, for clarification of the remittitur, denied. [See 52 NY2d 886.]


text:
    In the Matter of the Claim of Edward L. Swindell, Appellant, v Burns & Roe Construction Co. et al., Respondents. Workers’ Compensation Board, Respondent.
    Submitted April 20, 1981;
    decided May 12, 1981
   Motion for leave to appeal dismissed upon the grounds that no appeal lies from the order of the Appellate Division which dismissed the appeal from the order entered on consent (CPLR 5511) and that the order of the Appellate Division which denied the motion for reargument or leave to appeal does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of the Arbitration between Susquehanna Valley Central School District at Conklin, Appellant, and Susquehanna Valley Teachers’ Association et al., Respondents.
    Decided May 14, 1981

      APPEARANCES OF COUNSEL

      Frank C. Shaw for appellant.

      Paul E. Klein for respondents.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs. The denial of petitioner’s motion for a stay of arbitration and the granting of respondents’ cross motion to compel arbitration were proper. On the facts of this case, there was neither a waiver nor an abandonment of contractual arbitration at the instance of the teachers’ association based on the fact that respondent Cross simultaneously appealed to the Commissioner of Education pursuant to section 310 of the Education Law. That the parties’ collective bargaining agreement may have exposed them to duplicative procedures does not negate arbitrability. (Matter of Susquehanna Val. Teachers Assn. [Board of Educ.}, 75 AD2d 140, affd on opn of Herlihy, J., 52 NY2d 1034; Matter of City School Dist. of City of Poughkeepsie [Poughkeepsie Public School Teachers Assn.], 35 NY2d 599).

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


text:
    Kenneth Van Hoesen, Appellant, v F & M Schaefer Brewing Company, Defendant. Kenneth Van Hoesen et al., Appellants, v Owens-Illinois Glass Company, Inc., Defendant and Third-Party Plaintiff. Sarraino Bros. & Curcio, Inc., Third-Party Defendant; Lumbermens Mutual Casualty Company, Intervener-Respondent.
    Decided May 14, 1981

      APPEARANCES OF COUNSEL

      Ernest Abdella and George Abdella for appellants.

      Donald P. Ford, Jr., for intervenor-respondent.
   OPINION OF THE COURT

On summary consideration, order reversed, with costs, and the order of Supreme Court, Fulton County, reinstated. The order of Supreme Court approving the settlement of the action includes an equitable apportionment of attorney’s fees. That order unambiguously requires Lumbermens to pay to plaintiff Kenneth Van Hoesen an amount equal to one third of the full value of his workers’ compensation claim which has been computed by the board in the sum of $14,460:80.

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


text:
    The People of the State of New York, Respondent v Thomas Miguel, Appellant.
    Argued April 3, 1981;
    decided May 14, 1981

      APPEARANCES OF COUNSEL

      Lynn W. L. Fahey and William E. Hellerstein for appellant.

      Eugene Gold, District Attorney (Dan A. Landes of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

At the suppression hearing, defendant contended only that the statements in question should be excluded because they were obtained in violation of his right to counsel and that the eyewitness identification should be excluded because it was inherently unreliable. Both of these contentions were properly rejected below. Inasmuch as defendant failed to object to the admission of this evidence on the ground that it was obtained in violation of his rights under the Fourth Amendment of the United States Constitution (see United States v Crews, 445 US 463; Dunaway v New York, 442 US 200), the questions of the propriety of defendant’s detention and the admissibility of the resulting evidence are now beyond our limited power to review (People v Martin, 50 NY2d 1029; see CPL 470.05, subd 2; 470.35, subd 1).

Nor do we find reversible error in the trial court’s refusal to submit the charge of assault in the third degree as part of its instructions to the jury. In order to be entitled to have this offense submitted, defendant was required to show both that the offense is, in fact, a lesser included offense within one of the two charged crimes and that “there is a reasonable view of the evidence which would support a finding that the defendant committed [the] lesser offense but did not commit the greater” (CPL 300.50 subds 1, 2; accord People v Greer, 42 NY2d 170,174; People v Henderson, 41 NY2d 233, 235). Although it may be true, as defendant contends, that the second prong of the statutory test is satisfied in his case, defendant was nonetheless not entitled to have assault in the third degree submitted to the jury as a “lesser included offense”, since that crime is simply not a “lesser included offense” of the two crimes with which he was charged.

The term “lesser included offense” is defined in CPL 1.20 (subd 37) as follows: “When it is impossible to commit a particular crime without concomitantly committing, by the same conduct, another offense of lesser grade or degree, the latter is, with respect to the former, a ‘lesser included offense’ Here, as the case was submitted to the jury, defendant was charged only with robbery in the second degree (Penal Law, § 160.10, subds 1, 2, par [a]) and felony assault (Penal Law, § 120.05, subd 6). As is evident from the language of the applicable statutes, defendant could have committed either of these crimes even if he did not act recklessly or with the specific intent to cause physical injury. The crime of assault in the third degree, in contrast, is committed only when the defendant acts recklessly or with specific intent in causing the alleged injury. It is therefore possible to commit both the crime of robbery in the second degree and the crime of felony assault without concomitantly committing assault in the third degree, and, consequently, assault in the third degree is not a “lesser included offense” of either robbery or felony assault. For this reason, CPL 300.50 (subds 1, 2) did not mandate submission of assault in the third degree to the jury, notwithstanding that there might have been a reasonable view of the evidence which would support a finding that defendant committed that crime, but did not commit the greater crimes of robbery in the second degree and felony assault.

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

Order affirmed in a memorandum.

      . Section 160.10 of the Penal Law, insofar as it pertains to this case, defines robbery in the second degree as follows:
      “A person is guilty of robbery in the second degree when he forcibly steals property and when:
      “1. He is aided by another person actually present; or

        “2. In the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime:
      “(a) Causes physical injury to any person who is not a participant in the crime”.
      Felony assault is defined in subdivision 6 of section 120.05 of the Penal Law as follows:
      “A person is guilty of assault in the second degree when: * * *
      “6. In the course of and in furtherance of the commission or attempted commission of a felony * * * or of immediate flight therefrom, he, or another participant if there be any, causes physical injury to a person other than one of the participants”.

      . Section 120.00 of the Penal Law insofar as it pertains to this case provides as follows:

        “A person is guilty of assault in the third degree when:
      “1. With intent to cause physical injury to another person, he causes such injury to such person or to a third person; or
      “2. He recklessly causes physical injury to another person”.

      . We recognize that in People v Lett (39 NY2d 966), a case which presented facts similar to those presented here, we held that the crime of assault in the third degree was properly submitted to the jury as a “lesser included offense” of the crime of robbery in the second degree (accord People v Warren, 43'NY2d 852). The holdings in Lett and Warren, however, both rested solely upon the premise that a reasonable view of the evidence would support a finding that defendant committed an assault but not a robbery. Inasmuch as neither the Lett nor the Warren decision appears to give adequate consideration to the first criterion established in CPL 300.50 (subd 1) — whether it was impossible to commit the robbery without concomitantly committing the assault — their holdings cannot be considered accurate indications of the law in this area.


text:
    In the Matter of the Claim of Muriel McCann, Appellant. Philip Ross, as Industrial Commissioner, Respondent.
    Submitted April 3, 1981;
    decided May 14, 1981

      APPEARANCES OF COUNSEL

      Richard F. Braun for appellant.

      Robert Abrams, Attorney-General (Shirley Adelson Siegel, Paul S. Shemin and Grace A. Brannigan of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (74 AD 2d 697; cf. Matter of La Mountain [Westport Cent. School Dist.— Ross], 51 NY2d 318),

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


text:
    Daniel Danzig et al., Respondents, v Michael Dikman, as President of the Queens County Bar Association, et al., Defendants, and Blue Cross and Blue Shield of Greater New York, Appellant.
    Argued May 4,1981;
    decided May 14, 1981

      APPEARANCES OF COUNSEL

      Jerrold I. Ehrlich and Ann-Marie Hartline for appellant.

      Richard A. Danzig and Douglas J. Danzig for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated in the opinion of Justice Vincent A. Lupiano in that court (78 AD2d 303). In view of the recognition of the difference in determining when the liability of the insurer attaches under group medical insurance policies between the time of the occurrence of the event insured against and the time of the incurring of the expenses occasioned thereby — which determinations are generally resolved on the basis of the specific language used in the policies (e.g., Ann., 66 ALR3d 1205, 1208-1218; 68 ALR2d 249, 275-283) — the failure of the insurer to make unmistakably explicit provision in this policy as to which shall control creates an ambiguity which under familiar principles of construction is to be resolved against the insurer.

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

Order affirmed, with costs, in a memorandum.


text:
    Harold Goldfarb, Respondent, v Blue Cross and Blue Shield of Greater New York, Appellant.
    Argued May 4, 1981;
    decided May 14, 1981

      APPEARANCES OF COUNSEL

      Ann-Marie F. Hartline and Jerrold I. Ehrlich for appellant.

      Harold Goldfarb, pro se, and Harold W. Hayman for Harold Goldfarb, respondent.
   OPINION OF THE COURT

Order affirmed, with costs (Danzig v Dikman, 53 NY 2d 926, decided herewith).

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


text:
    In the Matter of Michael G. Shannon et al., Appellants, and Dongan Hills United Civic Association, Intervenor-Petitioner, v James E. Introne, as Acting Commissioner of the New York State Office of Mental Retardation and Developmental Disabilities, et al., Respondents.
    Decided May 14, 1981

      APPEARANCES OF COUNSEL

      Michael G. Shannon, appellant pro se, and for Karen S. Shannon, appellant.

      Robert Abrams, Attorney-General (Robert Schonfeld of counsel), for respondents.

      Elias R. Marino for intervenor-petitioner.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs. The Legislature clearly and unambiguously limited the application of section 41.34 of the Mental Hygiene Law to community residential facilities for “four to fourteen mentally disabled persons.” Inasmuch as the facility proposed in this case will contain only three persons, it does not fall within the scope of section 41.34. We have examined petitioners’ other contentions and find them to be without merit.

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


text:
    Pearl Carlin, Appellant, v Equitable Life Assurance Society of the United States, Respondent. (And Third- and Fourth-Party Actions.)
    Argued April 1, 1981;
    decided May 14, 1981

      APPEARANCES OF COUNSEL

      Murray H. Greenspan and Aaron Lewittes for appellant.

      Michael W. Brody and Werner Weinstock for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment appealed from and the order of the Appellate Division brought up for review should be reversed, with costs, and defendant Equitable’s motion for partial summary judgment denied.

Under the terms of this life insurance policy, “the Owner may obtain an advance from the Society” (emphasis added). The plain meaning of this language, as well as relevant case law, leads us to the conclusion that such moneys are “merely a deduction in account from the sum that the [insurer] ultimately must pay” (Matter of Hayes, 252 NY 148, 154; emphasis added). Since payment is not due until after the death of the insured, a beneficiary cannot properly sue for the proceeds to be received under the policy until the time for performance has arrived (see Kelly v Security Mut. Life Ins. Co., 186 NY 16, 19). Plaintiff’s suit for the proceeds having been commenced within six years of her husband’s death, it was not barred by the Statute of Limitations (CPLR 213).

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

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


text:
    The People of the State of New York, Respondent, v Calvin Caldwell, Appellant.
    Argued April 28, 1981;
    decided May 14, 1981

      APPEARANCES OF COUNSEL

      Alexander Potruch, Kenneth Koopersmith and Michael Feigenbaum for appellant.

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

Memorandum.

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

At the time of defendant’s arrest, a closed cassette box on the ground near the defendant was seized. Once the police had possession of the box, there was no reason to expect the destruction of evidence. Nor was there any indication that the officers had reason to fear for their safety. The box should not have been opened until a search warrant had been obtained. The failure to follow that course impermissibly trespassed upon defendant’s privacy interests in the box and therefore mandated suppression of its contents (see, e.g., People v Roman, 53 NY2d 39; People v Belton, 50 NY2d 447, cert granted 449 US 1109).

Chief Judge Cooke and Judges Gabrielli, Jones, Wachtler, Puchsberg and Meyer concur in memorandum; Judge Jasen concurs on constraint of People v Belton (50 NY2d 447).

Order reversed, etc.


text:
    Nassau Trust Company, Respondent, v Montrose Concrete Products Corp. et al., Appellants, et al., Defendants.
    Submitted April 3, 1981;
    decided May 14, 1981
   Appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (see Cohen and Karger, Powers of the New York Court of Appeals, § 19, pp 79-81).


text:
    In the Matter of Elm Realty, Inc., et al., Respondents, v Office of Rent Control, Appellant.
    Submitted May 4, 1981;
    decided May 14, 1981
   Motion to substitute Philomene Visco as administratrix in the place of Peter Visco granted without prejudice, however, to renewal on argument of the appeal of the contention that substitution is not proper by reason of abatement, in whole or part, of the determination made against the deceased respondent (see CPLR 1015, subd [a]).


text:
    In the Matter of Omega Transportation Co., Inc., Respondent, v Stephen I. Aiello et al., Constituting the Board of Education of the City of New York, et al., Appellants.
    Submitted May 11, 1981;
    decided May 14, 1981
   Motion for amendment of remittitur treated as motion for reargument, dismissed as untimely with $20 costs and necessary reproduction disbursements. [See 52 NY2d 939.]


text:
    Irene A. Swanson, Appellant, v Robert E. Swanson, Respondent.
    Submitted April 27, 1981;
    decided May 14, 1981
   Motion for restitution pursuant to CPLR 5523 denied. An application for restitution after this court’s decision on appeal has been rendered should generally be addressed to the court of original instance. [See 52 NY2d 1004.]


text:
    In the Matter of Bonnie Michelle W. (Anonymous), Respondent. City of New York, Appellant.
    Submitted April 20, 1981;
    decided May 14, 1981
   Motion to dismiss the appeal denied, with leave to renew on argument of the appeal.


text:
    The People of the State of New York, Respondent, v Peter Klass, Appellant.
    Submitted May 11, 1981;
    decided May 14, 1981
   Motion to vacate this court’s order of dismissal, dated April 27, 1981, granted. [See 53 NY2d 839.]


text:
    In the Matter of Michael Santarella, Respondent, v New York City Department of Correction et al., Appellants.
    Argued April 30, 1981;
    decided June 2, 1981

      APPEARANCES OF COUNSEL

      Allen G. Schwartz, Corporation Counsel (Pamela Seider Dolgow and Ronald E. Sternberg of counsel), for appellants.

      Henry T. Berger and Kenneth E. Gordon for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the determination of the Commissioner of Correction reinstated.

In view of the consistent pattern of misconduct as found by the hearing officer and confirmed by the Commissioner of Correction, we cannot say that the penalty of dismissal is so disproportionate to petitioner’s offenses as to mandate modification. (Matter of Pell v Board of Educ., 34 NY2d 222, 233.) It is irrelevant that the necessary aims of discipline in the department could have been achieved by a less severe sanction.

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

Order reversed, etc.


text:
    In the Matter of the Claim of William H. Kaiser, Respondent. Woodmen of the World Life Insurance Society, Respondent; Philip Ross, as Industrial Commissioner, Appellant.
    Argued May 1, 1981;
    decided June 2, 1981

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Peter J. Dooley, Shirley Adelson Siegel, Paul S. Shemin and Iris A. Steel of counsel), for appellant.

      David F. Kunz for Woodmen of the World Life Insurance Society, respondent.

      Gary J. Grayson for William Kaiser, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the decision of the Unemployment Insurance Appeal Board reinstated.

Claimant entered into a contract with the respondent Woodmen of the World Life Insurance Society whereby he was to work as a field representative selling insurance and recruiting new members for the society. Under the contract, claimant was required, inter alia, to abide by all the respondent’s rules and regulations and use respondent’s forms to comply with the Insurance Law. Moreover, group medical and health coverage was available to claimant. Most importantly, claimant’s contract with respondent prohibited him from placing insurance for other insurance organizations. (See Matter of Watz [Equitable Life Assur. Soc. of U. S. — Ross], 60 AD2d 259, affd 46 NY2d 876.) In our view, given such indicia of control, there is substantial evidence in the record to sustain the determination of the appeal board that the relationship between claimant and the Woodmen of the World Life Insurance Society was that of employee-employer during the period in question.

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

Order reversed, etc.


text:
    The People of the State of New York, Respondent, v Robert Medina, Appellant.
    Argued April 28, 1981;
    decided June 2, 1981

      APPEARANCES OF COUNSEL

      Miriam J. Hibel and William E. Hellerstein for appellant.

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

Memorandum.

The order of Appellate Division should be affirmed.

At one point during the trial, defense counsel asked the People’s witness to reveal the name of the informant who had arranged the cocaine sale and later gave the police the information which led to defendant’s arrest (see People v Goggins, 34 NY2d 163, cert den 419 US 1012). The informant’s identity was not disclosed, however, because the Trial Judge sustained the District Attorney’s prompt objection to the question. Since the District Attorney was obviously unwilling to permit the witness to disclose the informant’s identity, it was incumbent upon defendant to seek a judicial ruling on the question if he believed that disclosure would be helpful to his case. Having failed to request such a ruling at any point during the course of the trial, defendant is now precluded from raising the issue in this court as a potential ground for reversal (CPL 470.35, subd 1; 470.05, subd 2).

Defendant’s further contention that the conviction should be reversed because of certain of the prosecutor’s summation remarks is similarly without merit. The Trial Judge ultimately sustained defense counsel’s objection to the District Attorney’s comments and directed the District Attorney to refrain from making further statements on the same subject. Defense counsel did not request any curative instruction or move for a mistrial on the basis of the remarks that were made before the Trial Judge’s ruling. Hence, no error of law was preserved for appellate review.

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

Order affirmed in a memorandum.


text:
    National Bank of North America, Respondent, v Rosalee Paskow, Appellant.
    Argued April 28, 1981;
    decided June 2, 1981

      APPEARANCES OF COUNSEL

      Anthony Carpinello and Gladys S. Wolf for appellant. Joseph A. Di Benedetto and Edward N. Meyer for respondent.
   OPINION OF THE COURT

Memorandum.

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

Defendant does not deny execution of the guarantee or claim that she ever gave the written notice of termination which it required. She argues before us that under the holding in Bankers Trust Hudson Val., N. A. v Christie (68 AD2d 969, on reargument 72 AD2d 614) her guarantee was terminated nonetheless when the overdrafts sought to be collected from her were incurred. We need not express any opinion concerning the holding of that case, however, for the factual predicate for its application is wholly missing from this record.

Nor can defendant successfully defend on the ground that the account title showed the corporation whose debts she guaranteed to have been acting as agent. While a disclosed agent does not normally incur personal responsibility, he may in some situations. Here, however, the corporation has in a prior action been held liable for the overdrafts. Defendant’s corporate principal having been held liable, defendant is, under the terms of her guarantee, also liable.

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Edwin H. Starr, Appellant, v Frank J. Macchiarola, as Chancellor of the Board of Education of the City of New York, et al., Respondents.
    Argued April 29, 1981;
    decided June 2, 1981

      APPEARANCES OF COUNSEL

      William Goffen for appellant.

      Allen G. Schwartz, Corporation Counsel (Joan E. Handler and Francis F. Caputo of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (77 AD2d 900).

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