text:
    The People of the State of New York, Respondent, v Harold Oliver, Appellant.
    Argued October 11, 1984;
    decided November 13, 1984

      APPEARANCES OF COUNSEL

      Jeanne E. Mettler and Stephen J. Pittari for appellant.

      Carl A. Vergari, District Attorney {Anthony J. Servino of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted by a trial jury of burglary in the third degree, petit larceny, criminal mischief in the fourth degree, and criminal possession of stolen property in the third degree. After the verdict was rendered, a hearing was held pursuant to CPL 400.20 to determine if he should be sentenced as a persistent felony offender. At the conclusion of the hearing the court determined that defendant was a persistent felony offender and sentenced him to various concurrent indeterminate terms of imprisonment, the longest of which had a minimum term of 15 years and a maximum term of life. On appeal defendant challenges the constitutionality of CPL 400.20 and of the manner in which the hearing was held and he also contends the sentence was excessive and based upon incompetent evidence.

Insofar as defendant challenges the constitutionality of CPL 400.20 and the manner in which he was determined to be a persistent felony offender, he has forfeited the objections now raised. He participated fully in the hearing with the aid of counsel and without asserting those objections before the trial court. Having failed to do so, he may not challenge the constitutionality of the statute or the proceeding for the first time on appeal (People v McGowen, 42 NY2d 905; People v Drummond, 40 NY2d 990). The rule applied here differs from that applied in People v Morse (62 NY2d 205, 214, n 2) and similar cases in which we held that no objection was necessary in the trial court to preserve the issue on appeal because the court had exceeded its sentencing powers.

Insofar as defendant contends that certain evidence was improperly received, the evidence was either not objected to at the hearing or the objections made were not sufficiently specific or correct to preserve the errors now asserted.

Finally, we find no abuse of defendant’s due process rights because the prosecution sought an enhanced sentence after trial although before trial it had offered defendant a plea to a reduced charge (see Bordenkircher v Hayes, 434 US 357).

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

Order affirmed in a memorandum.


source: Caselaw Access Project

license: Public Domain

text:
    Royal Zenith Corporation, Appellant, v Continental Insurance Company, Respondent.
    Argued October 8, 1984;
    decided November 13, 1984

      APPEARANCES OF COUNSEL

      Arthur N. Brook and Howard D. Avrutine for appellant.

      Richard M. Gates for respondent.
   OPINION OF THE COURT

Memorandum.

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

Appellant, Royal Zenith Corporation, claiming that a printing press in transit to its customer had been damaged while in the custody of Container Service Company, a trucker, commenced an action for damages against Container, a foreign corporation. In accordance with Seider v Roth (17 NY2d 111), jurisdiction over Container was secured by attachment of a liability insurance policy issued to Container by respondent, Continental Insurance Company, a New York corporation. Respondent disclaimed coverage, and neither Container nor respondent appeared in defense of the action, which in 1977 proceeded to a default judgment against Container. Following the failure of either Container or respondent to satisfy the judgment, appellant commenced the instant action to enforce the judgment directly against respondent under section 167 (subd 1, par [b]) of the Insurance Law. During the pendency of this action, the Supreme Court ruled in Rush v Savchuk (444 US 320) that a Seider attachment, as the basis for personal jurisdiction, was unconstitutional. Appellant thereafter sought summary judgment dismissing respondent’s defense based on its alleged disclaimer of coverage, and respondent cross-moved to dismiss the complaint, contending that the default judgment appellant sought to enforce against it was a nullity because of an absence of personal jurisdiction over Container. Special Term denied both the motion and the cross motion; the Appellate Division modified to the extent of granting respondent’s cross motion and dismissing the complaint. We now affirm.

A court is without power to render a judgment against a party as to whom there is no jurisdiction (World-Wide Volkswagen Corp. v Woodson, 444 US 286, 291), and a judgment rendered without jurisdiction is subject to collateral attack (see Gager v White, 53 NY2d 475, 488, n 9; Restatement, Judgments 2d, § 10, Comment f). Because the attachment had no válidity as a basis for personal jurisdiction over Container, it follows that the default judgment against Container is a nullity (see Kamp v Kamp, 59 NY 212, 216; Malone v Citarella, 7 AD2d 871), and may not be enforced against respondent, who stands in the shoes of Container, its insured.

Gager v White (53 NY2d 475, supra) requires no different result. In Gager, we held that a defendant brought within the jurisdiction of the New York courts by a Seider attachment, who then appeared in the action without raising an explicit jurisdictional challenge under Rush, had waived this objection. But here, neither Container nor respondent, on its behalf, participated in the action resulting in the judgment sought to be enforced. They cannot be said to have waived a jurisdictional objection based on Rush and the default judgment thus cannot be enforced against respondent.

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

Order affirmed, with costs, in a memorandum.

       While an objection based on lack of personal jurisdiction may be waived by failure to raise it in a motion or response (CPLR 3211, subd [a], par 8; subd [e]), respondent does not dispute personal jurisdiction in the pending action against it to enforce the default judgment, but asserts only the invalidity of the default judgment against Container, an issue which was properly raised here by the dismissal motion.


text:
    Lydia R. Alquijay, an Infant, by Her Parents and Natural Guardians, Josefina Z. Alquijay and Salome Alquijay, et al., Appellants, v St. Luke’s-Roosevelt Hospital Center et al., Respondents.
    Argued October 11, 1984;
    decided November 13, 1984
    APPEARANCES OF COUNSEL

      Geraldine J. Gould for appellants.

      Howard R. Cohen for St. Luke’s-Roosevelt Hospital Center, respondent.

      Norman Bard and Lawrence Kanterman for Columbia Presbyterian Medical Center, respondent.
   OPINION OF THE COURT

Memorandum.

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

This appeal presents the question whether plaintiff, an infant born with Down’s Syndrome, can recover from defendant hospitals the extraordinary expenses she will incur for special care and services upon reaching majority. The basis for her claim is that defendants negligently performed an amniocentesis test on her mother during pregnancy to determine whether the fetus had any genetic abnormality, and their erroneous report that the mother would give birth to a normal male child induced her to carry to term instead of aborting the fetus, resulting in plaintiff’s birth with a condition that will require special treatment throughout her lifetime. All other causes of action against defendants have been withdrawn, including the claims of plaintiff’s parents for damages, which were time-barred. While Special Term denied defendants’ motions to dismiss the infant’s cause of action, the Appellate Division reversed and dismissed the complaint, concluding, on the basis of Becker v Schwartz (46 NY2d 401), that there is no cause of action for wrongful life and that the life of one such as plaintiff, born in an impaired state, does not constitute injury to the infant.

We agree with the Appellate Division that, while otherwise denominated, plaintiff’s cause of action is in fact one for wrongful life, which is not legally cognizable in this State. Nor is there any anomaly or inconsistency in the fact that plaintiff’s parents might, if their own claim had been timely brought, have recovered their pecuniary expense for the care and treatment of their infant (Becker v Schwartz, 46 NY2d 401, 412-413, supra), although plaintiff herself cannot recover these same expenses after her majority. While plaintiff’s parents might have established a breach of duty flowing from defendants to them, which was the proximate cause of injury requiring them to assume increased obligations, plaintiff’s own cause of action — being one for her own wrongful life — does not allege any legally cognizable injury and “demands a calculation of damages dependent upon a comparison between the Hobson’s choice of life in an impaired state and nonexistence”, which the law is not equipped to make (Becker v Schwartz, supra, p 412). Plaintiff’s argument that recovery should be allowed simply as a matter of public policy is one more appropriately addressed to the Legislature than a court of law.

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Shawangunk Holdings, Ltd., Respondent, v Superintendent of Highways of the Town of Shawangunk et al., Appellants.
    Submitted October 22, 1984;
    decided November 13, 1984
   Motion to vacate this court’s order of dismissal dated September 21, 1984 denied. [See 63 NY2d 773.]


text:
    Board of Education of the City of New York, Respondent, v Norman Treyball, Defendant, and Norman Treyball, Jr., et al., Appellants.
    Argued October 12, 1984;
    decided November 15, 1984

      APPEARANCES OF COUNSEL

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

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

Memorandum.

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

In this action, plaintiff Board of Education sought to attach pension contributions that had been refunded to defendant and transferred to his sons, appellants in this court. The Board alleged that defendant, formerly a school custodian-engineer, had unlawfully retained $23,837.39 in municipal funds, and had fraudulently transferred to his sons’ moneys returned to him by the Board of Education Retirement System, to protect these funds from being subject to a judgment in favor of the Board. Supreme Court granted the Board an order attaching the returned pension contributions, then held in defendant’s sons’ bank accounts. The Appellate Division affirmed.

The question on this appeal is whether the subject funds were immune from attachment by virtue of a provision in the Rules and Regulations of the Board of Education Retirement System. Appellants rely on section 26 of those rules which provides, in relevant part, that “[t]he right of a person to * * * the return of contributions * * * shall not be subject to * * * attachment.” A reading of this provision indicates that it was intended to protect pension contributions from attachment so long as they are held by the trustees of the retirement system; it was not intended to immunize the contributions from attachment once returned to the retiree. Indeed, the provision speaks only in terms of protecting the “right” to a return of contributions, and not the contributions once returned, nor the contributions transmitted to third parties following return. This is contrasted by the same provision as it affects “retirement allowances.” In that instance, the subject provision seeks to protect not only the “right” to retirement allowances but also a “retirement allowance itself” (see Retirement and Social Security Law, § 110).

Appellants’ other arguments have been considered and found to be without merit.

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Bowley Associates, Ltd., et al., Appellants, v State of New York Insurance Department et al., Respondents, and Automobile Insurance Plan, Intervenor-Respondent.
    Argued October 16, 1984;
    decided November 15, 1984

      APPEARANCES OF COUNSEL

      Laurence London and RichardL. Herzfeld for appellants.

      Robert Abrams, Attorney-General (Robert S. Hammer, Peter H. Schiff and Richard G. Liskov of counsel), for respondents.

      Martin Hertz, Sidney Gaines and Marian Hertz for intervenor-respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Justice Sidney H. Asch at the Appellate Division (98 AD2d 521).

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


text:
    In the Matter of the Arbitration between Local 345 of the Retail Store Employees Union, Respondent, and Heinrich Motors, Inc., Appellant.
    Argued October 17, 1984;
    decided November 15, 1984

      APPEARANCES OF COUNSEL

      William E. McKnight and Michael A. Hausknecht for appellant.

      Harold Cohen for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the supplemental award set aside.

In this collective bargaining agreement in the private sector the arbitration clause expressly provides that: “No award shall be effective retroactively beyond the date on which the grievance was first presented in writing pursuant to the grievance procedure as herein provided, nor for any period subsequent to the termination of the Agreement”. The arbitrator disregarded this clause concluding that it would be unconscionable to give effect to it in this case.

In collective bargaining agreements governed by Federal law, an arbitrator cannot exceed the limitations imposed on him by the arbitration agreement itself. “When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award” (Steelworkers v Enterprise Corp., 363 US 593, 597). In the case now before us, therefore, the arbitrator could not ignore an express limitation on his powers which specifically precluded him from granting retroactive relief (see, also, Matter of Local 1 of United Food & Commercial Workers [Heinrich Motors], 559 F Supp 192). Indeed the same result would be reached under the laws of this State (Matter of Silverman [Benmor Coats], 61 NY2d 299).

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

Order reversed, etc.


text:
    George E. Couch, Jr., et al., Respondents, v Kevin G. Langan et al., Appellants.
    Argued October 15, 1984;
    decided November 15, 1984

      APPEARANCES OF COUNSEL

      Carroll J. Mealey, Terence J. Devine and James T. Potter for appellants.

      Jane W. Williams for respondents.
   OPINION OF THE COURT

Order reversed, with costs, and complaint dismissed. The proof presented sustained none of the grounds alleged in the complaint for dissolution of the partnership nor was there a motion made to conform the pleadings to the proof in support of any other ground for dissolution. There was, therefore, no basis for the order of dissolution made.

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


text:
    Kathryn L. Dougherty et al., Respondents, v City of Rye et al., Appellants.
    Decided November 15, 1984

      APPEARANCES OF COUNSEL

      Richard M. Gardella, Corporation Counsel, for appellants.

      George P. Forbes, Jr., for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

We agree that notice to the County Planning Board of hearings on the proposed zoning amendment was required under section 277.61 of the Westchester County Administrative Code (Bloom v Town Bd., 80 AD2d 823, app dsmd 53 NY2d 938). The City argues, however, that even if such notice was required, plaintiffs are not entitled to summary judgment because they have not shown that there is evidence in the record which would establish beyond a reasonable doubt that notice of the hearings was not mailed to the County Planning Board. This argument incorrectly equates the presumption of constitutionality, which can only be rebutted under the reasonable doubt standard (Wiggins v Town of Somers, 4 NY2d 215, 218), with the presumption of regularity of procedures, which only shifts the burden of going forward to the party claiming that normal procedures were not followed (People v Richetti, 302 NY 290, 298).

Here, the City Clerk’s affidavit did not establish a normal procedure of giving the required notice. When it is read in the context of the other affidavits submitted by the City, it establishes only that notices were mailed when they were required under the City’s interpretation of section 277.61, and the City has taken the position that notice to the County was not required in the present case because the property involved does not abut a State or county road.

With respect to the City’s claim of laches, which is based on the 16 months that elapsed between enactment of the zoning amendment and the commencement of this action, there has been no showing of any substantial prejudice resulting from the delay. It is undisputed that no construction on the property had begun when the action was commenced (cf. Matter of Friends of Pine Bush v Planning Bd., 86 AD2d 246, 247-248, affd 59 NY2d 849; Zelenski v Incorporated Vil. of Patchogue, 51 AD2d 1055, 1056). The only assertion regarding prejudice that appears in the record (that Federal funds committed to the project site could be diminished or possibly lost if the project is delayed) is insufficient to establish that prejudice has actually resulted from the delay in bringing suit (see Bloom v Town Bd., 88 AD2d 895).

Finally, the City’s arguments that plaintiffs lack standing to raise any issue regarding notice to the County Planning Board and that this action is untimely under the applicable Statute of Limitations were not asserted in the City’s answer or in a pre-answer motion to dismiss and have thus been waived (CPLR 3211, subd [e]; Matter of Prudco Realty Corp. v Palermo, 60 NY2d 656, 657; Trayer v State of New York, 90 AD2d 263, 265-266).

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.


text:
    In the Matter of Raymond A. Mazgulski et al., Respondents, v Albert B. Lewis, as Superintendent of Insurance, Appellant. Consumer Credit Insurance Association, Respondent, v Albert B. Lewis, as Superintendent of Insurance, et al., Appellants.
    Argued October 15, 1984;
    decided November 15, 1984

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Robert S. Hammer, Peter H. Schiff, Frederick K. Mehlman and Richard G. Liskov of counsel), for appellants.

      Alexander C. Cordes, William J. O’Connor, Jr., Philip S. Toohey and Robert E. Glanville for Raymond A. Mazgulski and others, respondents.

      Jeffrey G. Stark for Consumer Credit Insurance Association, respondent.
   OPINION OF THE COURT

Memorandum.

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

Petitioners instituted these two proceedings, consolidated for appeal by the Appellate Division, to challenge certain regulations of respondent Superintendent of Insurance. On this appeal the only issue submitted is whether respondent lawfully exercised his rule-making powers in promulgating 11 NYCRR 185.10 (d) (1-3) which provides for the allocation of dividends earned on credit life insurance policies. The regulation should be annulled for the reasons stated in the memorandum decision of Justice Edward J. Greenfield in Matter of Mazgulski v Lewis (118 Misc 2d 600).

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

Order affirmed, with costs, in a memorandum.


text:
    Ross M. Branca, Appellant, v Jay P. Mayesh et al., Respondents.
    Decided November 15, 1984

      APPEARANCES OF COUNSEL

      Steven Di Joseph for appellant.

      Andrew S. Fisher and Burton N. Lipshie for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (101 AD2d 872).

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


text:
    Town of Aurora, Respondent, v Thomas S. Kranz et al., Appellants.
    Decided November 15, 1984

      APPEARANCES OF COUNSEL

      Leonard Berkowitz for appellants.

      Thomas E. Andruschat for respondent.

      Christopher T. Greene for Aurora Concerned Citizen’s Group, amicus curiae.

   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (103 AD2d 1022), noting that the factual determinations of that court more nearly comport with the weight of the evidence.

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


text:
    Sportsmen’s Park, Inc., Doing Business as Astoria Hotel & Cafe & Derby Restaurant, Respondent, v New York Property Insurance Underwriting Association, Appellant, et al., Defendant.
    Argued October 16, 1984;
    decided November 15, 1984

      APPEARANCES OF COUNSEL

      Francis J. Holloway and Stephen M. Kiernan for appellant.

      Peter C. Graham for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, and question certified answered in the affirmative for reasons stated in the memorandum at the Appellate Division (97 AD2d 893).

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


text:
    Randall Borchardt, Appellant, v New York Life Insurance Company, Respondent.
    Decided November 15, 1984

      APPEARANCES OF COUNSEL

      Donald J. Cayea and Steve Kieselstein for appellant.

      Robert A. Kirtland and P. Michael Madden for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the opinion by Justice Fritz W. Alexander at the Appellate Division (102 AD2d 465).

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


text:
    In the Matter of Renate Smith, Respondent, v Mallory Timers Company Division of P. R. Mallory & Co., Inc., Respondent. Workers’ Compensation Board, Appellant.
    Argued October 15, 1984;
    decided November 15, 1984

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Morris N. Lissauer, Peter H. Schiff, Carlin Meyer and Reed Brody of counsel), for appellant.

      Raymond T. Buckner, Jr., for Mallory Timers Company Division of P.R. Mallory Co., Inc., respondent.

      Renate Smith, respondent pro se, precluded.
   OPINION OF THE COURT

Memorandum.

Order reversed, with costs, and the decision of the Workers’ Compensation Board, filed July 26, 1982, reinstated. We disagree with the Appellate Division that there was “no basis in [the] record to support a determination that [claimant] would be entitled to reinstatement or back wages” after January 15, 1979. Once the employer admitted that it had rehired approximately 11 employees with seniority comparable to the claimant, it was not unreasonable, on this record, for the Board to infer that the claimant also would have been rehired on January 15, 1979 but for the discriminatory animus. Thus, there is substantial evidence in the record to support the Board’s determination.

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

Order insofar as appealed from reversed, etc.


text:
    Up-Front Industries, Inc., et al., Respondents, v U. S. Industries, Inc., Appellants.
    Argued October 17, 1984;
    decided November 15, 1984

      APPEARANCES OF COUNSEL

      William F. Sondericker, Job Taylor, III, and Jeffrey H. Sheetz for appellants.

      Lois Sylor Yohonn and Dennis H. Lewitas for respondents.
   OPINION OF THE COURT

Order affirmed, with costs. The trial court’s charge on consequential damages, that the jury was to calculate damages on the basis of actual sales and “testimony about projected sales” plaintiffs would have made during the three years following defendants’ breach of contract, was not excepted to and, therefore, became the law applicable to the determination of the case (.Martin v City of Cohoes, 37 NY2d 162). The propriety of this instruction was not preserved for our review.

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


text:
    David G. Goldstein et al., as Assignees of Lloyd H. Relin, as Trustee in Bankruptcy of Elgeet Optical Co., Inc., Appellant, v Olympus Optical Co. et al., Defendants, and Ataka New York (Now Known as Ataka America, Inc.), Respondent.
    Argued October 18, 1984;
    decided November 15, 1984

      APPEARANCES OF COUNSEL

      Emil L. Cohen for appellants.

      Leo J. Kesselring and Joseph G. Gorayeb for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (98 AD2d 991).

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


text:
    Dean L. Fox et al., Appellants, v 85th Estates Company, Respondent.
    Decided November 15, 1984

      APPEARANCES OF COUNSEL

      Joel E. Lutzker and Milton Springut for appellants.

      Lauri Cohen for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for reasons stated in the memorandum of the Appellate Division (100 AD2d 797; see, also, Tagert v 211 East 70th St. Co., 63 NY2d 818).

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


text:
    In the Matter of Charles S. Carlon, Appellant, v Edward V. Regan, as Comptroller of the State of New York, et al., Respondents.
    Argued October 15, 1984;
    decided November 15, 1984

      APPEARANCES OF COUNSEL

      Paul J. Giancola for appellant.

      Robert Abrams, Attorney-General (Richard J. Dorsey and Peter H. Schiff of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs to the State, to the extent of awarding petitioner $5,079.10 and, as so modified, affirmed.

In brief and on oral argument in our court the State commendably concedes that the amount of its setoff for reimbursement of care furnished appellant subsequent to May 11, 1966 in the amount of $61,335.38 should be reduced by the sum of $5,079.10. Accordingly, the petition should be granted to that extent on consent.

In all other respects we agree with the determinations made by the Appellate Division. We conclude that there is no merit to the several arguments advanced by appellant in our court, namely, that the setoff is barred because of the State’s failure to have asserted it in the Court of Claims as a counterclaim to the claim for malpractice filed by appellant in that court, that the State should otherwise be estopped to assert its setoff, and that the State should be precluded from asserting its setoff under the doctrine of unclean hands, and that it was error not to reduce the amount of the State’s setoff by a pro rata share of attorney’s fees incurred by appellant in the successful prosecution of his malpractice claim in the Court of Claims — in each instance for the reasons stated in the opinion of Justice John T. Casey at the Appellate Division.

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

Order modified, with costs to the State, in accordance with the memorandum herein and, as so modified, affirmed.


text:
    In the Matter of the Adoption of Joseph LL, Jr. Dale KK, Respondent; Joseph LL, Sr., Appellant. (Proceeding No. 1.) In the Matter of Joseph LL, Sr., Appellant, v Cynthia KK, Respondent. (Proceeding No. 2.)
    Argued October 17, 1984;
    decided November 15, 1984

      APPEARANCES OF COUNSEL

      Tom Terrizzi and David Leven for appellant.

      Thomas M. Christina for respondent.

      Robert Abrams, Attorney-General (Clifford A. Royael and Peter H. Schiff of counsel), in his statutory capacity pursuant to section 71 of the Executive Law.
   OPINION OF THE COURT

Memorandum.

In proceeding No. 2, this appeal should be dismissed, without costs, on the ground that no substantial constitutional question is directly involved in this unconsolidated, separate proceeding.

In proceeding No. 1, the order of the Appellate Division should be affirmed, with costs. We ground our determination in the analysis of the constitutional issues set forth in the opinion of Justice John T. Casey at the Appellate Division (97 AD2d 263).

The constitutional rights of the natural father were not violated in the circumstances disclosed in the record in this case. As the Family Court found, the contacts between the father and the son were minimal. Because of the son’s infancy, responsibility for the development of a meaningful parent-child relationship necessarily rested with the father who never established a relationship of significance in either duration or quality. He lived with the baby boy for only the first five months following the baby’s birth, after which he and the boy’s mother separated in April, 1978. Family Court found that from that date until he was incarcerated in connection with his criminal charge in July, 1979, the father made only two or three visits and failed to keep several scheduled appointments because of his intoxication. Although for some months payment of the $20 per week support obligation was continued, support payments were substantially in arrears at the time of the Family Court hearing.

On December 11, 1979, the father was convicted on a felony charge of arson in the third degree, and on January 17,1980 he was sentenced, as a second felony offender, to a term of 7Vfe to 15 years, thereby, by his own conduct, raising doubt as to his fitness as a father of an infant child and effectively precluding the initiation or maintenance of any significant father-son relationship in the boy’s early formative years.

We conclude that, in the circumstances, Family Court’s application of the provisions of section 111 (subd 2, par [d]) of the Domestic Relations Law (which Justice Casey properly held granted authority to dispense with the father’s consent to the proposed adoption but did not mandate that such consent be dispensed with) did not deprive this natural father of any right constitutionally assured to him.

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

In proceeding No. 2: Appeal dismissed, without costs.

In proceeding No. 1: Order, insofar as appealed from, affirmed, with costs.


text:
    John Dougal et al., Respondents, v County of Suffolk et al., Defendants, and Town of Islip et al., Appellants.
    Submitted August 20, 1984;
    decided November 15, 1984
   Motion for leave to appeal denied upon the ground that an appeal lies as of right (CPLR 5601, subd [b], par 1).


text:
    Linda Fleishman, Appellant, v Eli Lilly and Company et al., Respondents.
    Submitted October 15, 1984;
    decided November 15, 1984
   Motion to amend remittitur granted. Return of the remittitur requested and, when returned, it will be amended by adding thereto the following: Upon the appeal herein, there was presented and necessarily passed upon a question under the Constitution of the United States, viz.: whether plaintiff was deprived of due process and equal protection of the laws by the holding that plaintiff’s causes of action accrued and the Statute of Limitations commenced to run upon exposure to the harmful drug. (See 62 NY2d 888.)

Judges Meyer and Kaye taking no part.


text:
    Joseph Hillen, Respondent, v Irma Di Paolo et al., Appellants.
    Submitted August 27, 1984;
    decided November 15, 1984
   Motion for leave to appeal dismissed upon the ground that the purported respondent died before the action at issue was commenced and there is no showing that a substitution for the purported respondent has ever been made in this action.


text:
    Lai Chun Chan Jin et al., Appellants, v Board of Estimate of the City of New York, Respondent.
    Submitted August 20, 1984;
    decided November 15, 1984
   Motion to vacate the Court of Appeals order of dismissal dated July 3, 1984 denied. [See 63 NY2d 675.]


text:
    Carolyn Manno et al., Appellants, v Gerard Levi et al., Respondents.
    Submitted September 24, 1984;
    decided November 15, 1984
   Motion to amend remittitur granted. Return of remittitur requested and, when returned, it will be amended by adding thereto the following: Upon the appeal herein, there was presented and necessarily passed upon a question under the Constitution of the United States, viz.: whether plaintiffs were deprived of due process of law by the holding that the plaintiffs’ causes of action accrued and the Statute of Limitations commenced to run upon ingestion of the harmful drug. (See 62 NY2d 888.)

Judges Meyer and Kaye taking no part.


text:
    Judith A. Finnegan, Appellant, v NFT-Metro Bus System, Inc., et al., Respondents.
    Decided November 20, 1984

      APPEARANCES OF COUNSEL

      Donald, R. Guerra for appellant. Jeremiah J. McCarthy for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (101 AD2d 1010).

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


text:
    Celestial Food of Massapequa Corporation, Respondent, v New York State Tax Commission et al., Appellants.
    Argued October 16, 1984;
    decided November 20, 1984

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Maurice K. Peaslee and Peter H. Schiff of counsel), for appellants.

      Gerard A. Navagh for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, the motion of respondent, Celestial Food of Massapequa Corp., for summary judgment denied, and the cross motion of appellant State Tax Commission for summary judgment granted declaring valid regulation 20 NYCRR 528.20 (d) (2).

The issue before us is whether the purchase of certain paper and plastic items by a fast food restaurant is a “retail sale of tangible personal property” subject to sales tax under subdivision (a) of section 1105 of the Tax Law, or is subject to an exclusion from sales tax. In Matter of Burger King v State Tax Comm. (51 NY2d 614) we held that a restaurant’s purchases of materials for packaging or containing the food it sells came within section 1101 (subd [b], par [4], cl [i], subcl [A]) of the Tax Law, which excludes from the definition of retail sales subject to tax purchases of tangible personal property “for resale as such.” Wrappers for hamburgers, sleeves for french fries, and cups for beverages, while not actually component parts of the food and drink sold, were recognized as items purchased “for resale as such” because they form a critical element of the product sold, consumers ultimately paying sales tax on these items as part of their food purchases (Matter of Burger King, supra, p 623). We are now asked by respondent to enlarge our holding in Burger King to declare invalid a regulation of appellant Tax Commission which subjects a restaurant’s purchases of napkins, straws, stirrers, plastic utensils and other similar items to sales tax (20 NYCRR 528.20 [d] [2]). Respondent contends that this regulation is void and unenforceable because it limits and conflicts with the Tax Law, a contention with which both Special Term and the Appellate Division agreed in granting respondent summary judgment.

Unlike the packaging in Burger King, the items respondent here seeks to exclude from sales tax are not a critical element of the product sold and thus are not purchased “for resale as such.” Whereas a cup of coffee cannot be purchased without a container, the same cannot be said of napkins, stirrers and utensils, which are more akin to items of overhead, enhancing the comfort of restaurant patrons consuming the food products. The Appellate Division’s reasoning in this case, that because “the fast food customer expects to be provided with a stirrer for coffee, a straw for soft drinks, plastic utensils for food, and napkins for cleanliness” such items are purchased “for resale as such” (98 AD2d 157, 159), has potentially limitless application. Although the cost of such items may well be taken into account by the restauranteur when setting the price of food, so are other amenities a restaurant patron expects, such as service, utilities and fixtures, which do not become a part of the product being sold merely because their cost is a factor in determining the price a customer pays. Only when, as in Burger King, such items are necessary to contain the product for delivery can they be considered a critical element of the product sold, and excluded from sales tax. Accordingly, the items referred to in 20 NYCRR 528.20 (d) (2) were not purchased “for resale as such” by respondent and the challenged regulation requiring payment of sales tax on its purchases of such items is not at odds with the Tax Law.

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

Order reversed, with costs, plaintiff’s motion for summary judgment denied, and defendant’s cross motion for summary judgment declaring 20 NYCRR 528.20 (d) (2) valid granted in a memorandum.

      . Although the judgment of Special Term, affirmed by the Appellate Division, declared invalid the entire regulation 20 NYCRR 528.20 (d), paragraph 1 of that section has never been in issue in this case; only paragraph 2 is contested.

      . In Burger King, the taxpayer conceded sales tax liability as to outer bags, straws and coffee stirrers (Matter of Burger King, 51 NY2d 614, 618-619, n 1).


text:
    Camille Brennan et al., Appellants-Respondents, v Breezy Point Cooperative, Inc., et al., Respondents-Appellants.
    Argued October 18, 1984;
    decided November 20, 1984

      APPEARANCES OF COUNSEL

      Barbara T. Pace and Patrick J. Rohan for appellants-respondents.

      Samuel Shapiro for respondents-appellants.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified to grant summary judgment to plaintiffs declaring the amendments to the cooperative standard form proprietary lease annulled and enjoining implementation of them, with costs to plaintiffs, and, as so modified, affirmed. The certified question is answered in the negative.

Plaintiffs are 14 members of defendant Breezy Point Cooperative, Inc. (Cooperative), a nonprofit cooperative corporation established in 1960, who purchased their interests at various times between 1960 and 1976. At the time they did so maintenance charges assessed against each member and contributed to the Cooperative’s common fund to defray taxes and expenses were based upon a formula applied to the number of shares owned by each member in relation to the total number of shares of the Cooperative outstanding. Thereafter, at meetings conducted in 1977, 1978 and 1981, the Cooperative amended its standard form proprietary lease to provide that in the future maintenance charges would be assessed on the basis of a sum computed by a formula applied to the tax assessment levied against the individual member’s property and the Cooperative lands and the operating expenses and charges of the Cooperative. The effect of these lease amendments was to increase plaintiffs’ monthly charges. Consequently, they brought this action against the Cooperative and its officers and directors.

Plaintiffs have advanced several grounds for relief but the matter may be resolved by determining whether the controlling provisions for amendment of the standard form proprietary lease are those contained in the lease or those contained in the Cooperative’s by-laws. Plaintiffs contend that amendments may be adopted only by complying with the requirements found in the by-laws of the Cooperative and that these were not. In opposition, defendants contend that the standard form proprietary lease was executed by all members, that they are bound by its terms and that these amendments are valid because the procedures for amendment found in the lease were followed.

The lease provided that it could be amended by joint action of the directors and members, on recommendation of at least two thirds of the members of the board of directors and approval by the affirmative vote of a majority of members present at a special membership meeting called for the purpose. Each of the three disputed amendments were adopted by procedures that complied with this lease provision.

The by-laws of the Cooperative, on the other hand, stated that the standard form proprietary lease could be amended only by affirmative vote of three quarters of the present and voting members at an annual membership meeting, provided that not less than 50% of the entire membership attended the meeting. None of the amendments were adopted at an annual membership meeting and none received the three-quarters vote required by this by-law provision.

It is the contention of plaintiffs that the two provisions are irreconcilable and that inasmuch as the Cooperative prepared the documents and is responsible for the conflict it must comply with the more stringent procedure for amendment of the lease, that contained in the by-laws. Defendants contend that there is no conflict because the provisions were intended to serve two entirely different purposes. The by-law provision is designed, they say, to permit member initiative and since such amendments are proposed without the assurance of merit which may be supplied by prior management consideration and recommendation a greater degree of member support is required. The other method, contained in the lease, results in proposals by management personnel after they have studied and approved the amendment and under those circumstances it is appropriate that a lesser percentage of members should vote in favor of the amendment before it is adopted. Thus, defendants maintain that the two provisions differ for quite valid reasons and are not irreconcilable but may be harmonized. The short answer to that contention is that if it was intended that these procedures exist as alternatives, both alternatives would be contained in all the relevant documents, prospectus, by-laws and leases; a different procedure would not be found in each.

Under the circumstances, to effect the desired change in the lease, there must be compliance with both the procedure contained in the by-laws and those contained in the lease. The amendments, not having been adopted as required, are annulled and defendants are enjoined from implementing them in the future.

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

Order modified, with costs to plaintiffs, in accordance with the memorandum herein and, as so modified, affirmed. Question certified answered in the negative.


text:
    In the Matter of the Estate of Herbert Beck, Deceased. Anna M. Twaddle, as Administratrix of the Estate of Herbert Beck, Deceased, et al., Respondents; Camp-hill Village, U.S.A., Inc., Appellant.
    Argued October 18, 1984;
    decided November 20, 1984

      APPEARANCES OF COUNSEL

      Bertram H. Siegeltuch for appellant.

      Robert Abrams, Attorney-General (Vernon Stuart and Peter H. Schiff of counsel), for State of New York, respondent.

      Victor M. Meyers for Anna M. Twaddle, as administratrix of the estate of Herbert Beck, deceased, respondent, precluded.
   OPINION OF THE COURT

Memorandum.

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

The issue on this appeal is whether decedent, who died intestate with no known heirs, by withdrawal of funds revoked a Totten trust (see Matter of Totten, 179 NY 112). Decedent on November 20, 1969, created the trust by opening a savings account in his name in trust for Camp-hill Village, U.S.A., Inc., a farm community for mentally handicapped adults where he lived and worked from 1963 until his death on July 17,1981. By letter dated November 29,1973, he informed Camphill of the account, and that on his death the account would become Camphill’s property. On April 15, 1980, at the suggestion of a bank teller competing for an incentive award, decedent withdrew all of the funds in his account, transferring $8,000 to a higher interest account in his own name alone, $3,930 to his personal checking account, and taking $50 in cash. Although he did not inform the bank officer whether the new account was to be opened in trust for Camphill Village, he executed the signature card prepared for him, which indicated that the account was opened under the decedent’s name individually, and he made no request thereafter for any change in the title of the account. The Surrogate, however, found that decedent had not intended to revoke the trust, and dismissed the State’s objections to the administratrix’s account and its claim that the funds should escheat to the State. Concluding that decedent’s withdrawal of funds effected a revocation of the trust under EPTL 7-5.2 (subd 1), the Appellate Division modified by disallowing the claim of Camphill and allowing the State’s objection. We affirm that result, but for different reasons.

EPTL 7-5.2 (subd 1), enacted in 1975, provides that a Totten trust “can be revoked, terminated or modified by the depositor during his lifetime only by means of, and to the extent of, withdrawals from or charges against the trust account made or authorized by the depositor.” As indicated in the Recommendation of the Law Revision Commission to the 1975 Legislature, the effect of a depositor’s delivery of the passbook or oral statements of intention to revoke or modify was a major subject of litigation involving Totten trusts; the statute eliminated uncertainty by imposing an objective, unequivocal standard for revocation, termination or modification of the trust (see 1975 Report of NY Law Rev Comm, McKinney’s Session Laws of NY, 1975, p 1534; see, also, Rohan, Practice Commentary, McKinney’s Cons Laws of NY, Book 17B, EPTL 7-5.1, 1983-1984 Pocket Part, pp 138-139). But a provision that revocation can be accomplished during a depositor’s lifetime only by the objective, unequivocal act of withdrawing funds does not mandate that every withdrawal of the funds in a Totten trust necessarily effects a revocation of the trust. EPTL 7-5.2 (subd 1) addresses a separate problem, and is not applicable to the question presented.

A depositor’s withdrawal of the funds in a Totten trust operates as a revocation, and the beneficiary may not follow the proceeds or hold the depositor personally liable (see Matter of Totten, 179 NY 112, supra; Hessen v McKinley, 155 App Div 496, affd 209 NY 532; Restatement, Trusts 2d, § 58, Comment c; 1 Scott, Trusts [3d ed], § 58.4). This rule has been followed in all but the most extraordinary circumstances, as where the withdrawal resulted from fraud or duress, or an unauthorized act (see, e.g., Silk v Silk, 162 Misc 773; Matter of Stites, 160 Misc 162). No such extraordinary circumstances are present here. By withdrawing the funds, requesting the change in the account without instructing the bank officer to record the new account as one in trust for Camphill Village, and executing the necessary documents after the account had been opened in his name individually, decedent here revoked the Totten trust.

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

Order affirmed, with costs, in a memorandum.


text:
    Clara Ellison, as Administratrix of the Estate of Joseph Eastman, Deceased, Respondent, v New York City Transit Authority, Appellant.
    Argued October 15, 1984;
    decided November 20, 1984

      APPEARANCES OF COUNSEL

      Steve S. Efron, Richard K. Bernard and John A. Murray for appellant.

      Stephen A. Weingrad and Harry B. Frank for respondent.
   OPINION of the court

Memorandum.

The order of the Appellate Division should be reversed, with costs, and a new trial granted.

Although there was sufficient evidence presented to support the trial court’s determination that defendant was negligent and should be held liable for plaintiff decedent’s injuries, the trial court improperly excluded evidence relating to the possibility of contributory negligence on the decedent’s part and stifled development of the record on that issue. A finding that the decedent was intoxicated at the time he fell from the subway platform to the tracks and thereby contributed to his own injuries would, indeed, be relevant in determining the extent of defendant’s liability in this case (see Coleman v New York City Tr. Auth., 37 NY2d 137, 144). Yet, the trial court refused to admit a Transit Authority officer’s report, based on first-hand observation, that was probative of the decedent’s condition. In other instances, the court cut short defendant’s attempt to cross-examine witnesses about their opinions as to whether the decedent was intoxicated at the time of the incident (see People v Eastwood, 14 NY 562, 566; Richardson, Evidence [Prince, 10th ed], § 364, subd [h]). These errors served to prejudice defendant’s case that its liability may be proportionately reduced by the decedent’s culpable conduct.

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

Order reversed, etc.


text:
    John E. Brady, Jr., et al., Appellants, v Ottaway Newspapers, Inc., et al., Appellants. New York State Division of State Police, Nonparty Respondent.
    Argued October 17, 1984;
    decided November 20, 1984
    APPEARANCES OF COUNSEL

      Joseph Sluzar for defendants-appellants.

      Peter E. Bloom for plaintiffs-appellants.

      Robert Abrams, Attorney-General {Jeffrey I. Slonim, Peter H. Schiff and Howard L. Zwickel of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

In this action for damages for libel, plaintiffs and defendants both sought under CPLR 3101 (subd [a], par 4) and CPLR 3120 (subd [b]) disclosure of confidential investigative reports of the nonparty respondent concerning police scandals which occurred in 1972. Respondent opposed disclosure on the basis of the “public interest” privilege (see Cirale v 80 Pine St. Corp., 35 NY2d 113), claiming that release of the reports would trigger reprisals against confidential informants and impair its ability to conduct future investigations. Special Term granted the motions but ordered redaction of the names of informants. The Appellate Division reversed, on the law, holding that Special Term had abused its discretion in ordering disclosure.

Whether or not adequate special circumstances have been shown to support discovery against a nonparty is generally a determination to be made upon a review of the facts, and rests within the sound discretion of the court to which application is made (see Matter of U.S. Pioneer Electronics Corp. [Nikko Elec. Corp.], 47 NY2d 914, 916). The intermediate appellate court, here the Appellate Division, may review a determination for abuse of discretion; moreover, since it is vested with the same power and discretion as Special Term, the Appellate Division may also substitute its own discretion even in the absence of abuse (see Matter of Attorney-General of State of N. Y. v Katz, 55 NY2d 1015), which is then reviewable by us only for abuse of discretion as a matter of law.

We conclude that the Appellate Division here substituted its own discretion for that of Special Term (see Matter of Von Bulow, 63 NY2d 221). Recognizing, as did Special Term, that the right of a litigant to obtain evidence must at times give way to the public interest in facilitating investigations, the Appellate Division found that “speculation, fueled by disclosure of the reports, could subject sources to reprisals and imperil any future investigation of a similar nature.” (Brady v Ottaway Newspapers, 97 AD2d 451,452.) This finding reflects that the Appellate Division did its own balancing of the special circumstances and disagreed with Special Term’s view, on the facts, that simply redacting names would sufficiently protect respondent’s interests. Thus, the decision indicates an exercise of discretion by the Appellate Division which the appellants do not even claim to have been an abuse as a matter of law.

The only issue presented by the question certified is whether the Appellate Division had the power to deny the discovery motions in the exercise of its own discretion. We conclude that the Appellate Division had that power, and pass on no other issue (Serenity Homes v Town Bd., 37 NY2d 841).

Chief Judge Cooke

(dissenting). I respectfully dissent. The Appellate Division’s brief memorandum, which is expressly stated to be “on the law” and which itself refers to an “abuse of discretion” by Special Term, is hardly adequate to support a conclusion that the Appellate Division erroneously characterized its order as being on the law alone (cf. Matter of Von Bulow, 63 NY2d 221). As Special Term’s order was not an abuse of discretion as a matter of law, I would reverse the order of the Appellate Division and remit the matter to that court for its review of the facts.

Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur; Chief Judge Cooke dissents and votes to reverse in an opinion.

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


text:
    The People of the State of New York, Respondent, v Freddie Franklin, Appellant.
    Argued October 18, 1984;
    decided November 20, 1984
   Appeal dismissed upon the ground that the Appellate Division’s determination of reversal 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 Saul I. Birnbaum, Appellant, v Ilene L. Flaum et al., Respondents. (And Two Additional Proceedings.)
    Decided November 20, 1984
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the modification at the Appellate Division is not substantial (CPLR 5601, subd [a], par [iii]; Jadam Assoc. v Felomer, Inc., 29 NY2d 795).


text:
    In the Matter of Vincent A. Marchiselli et al., Respondents, v Robert S. Black et al., Constituting the Board of Elections in the City of New York, et al., Appellants. (And Another Proceeding.)
    Decided November 20, 1984
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, for mootness (see Matter of Hanington v Coveney, 62 NY2d 640).


text:
    Robinwood Mason, Inc., Appellant, v Michael A. Pastore et al., Respondents.
    Submitted October 22, 1984;
    decided November 20, 1984
   Motion to dismiss the appeal granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that it does not lie as of right.


text:
    The People of the State of New York, Appellant, v Steven Wallace, Respondent.
    Decided November 20, 1984
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed upon the ground that the Appellate Division’s determination of reversal 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]).


author: Meyer, J.

text:
    Dairylea Cooperative, Inc., Plaintiff, and Lumbermens Mutual Casualty Company, Appellant, v Robert Rossal et al., Individually and Doing Business as R & H Hauling, et al., Defendants, and Aetna Casualty and Surety Company, Respondent. (Action No. 1.) Aetna Casualty and Surety Company, Respondent, v Lumbermens Mutual Casualty Company, Appellant. (Action No. 2.)
    Argued October 10, 1984;
    decided November 29, 1984

      POINTS OF COUNSEL

      David W. Silverman and Carolyn A. Campe for appellant.
    I. Because R & H Hauling and Robert Rossal and Richard Hendrickson were adjudged to be the sole, active negligent tortfeasors in the underlying action, it is proper that their insurer, Aetna Casualty & Surety Company, which listed and provided primary coverage to the tanker as R & H Hauling’s owned vehicle, should be fully responsible for paying the claim against Aetna’s named assureds. (Mason v Allstate Ins. Co., 12 AD2d 138; Phoenix Ins. Co. v Guthiel, 2 NY2d 584; American Home Assur. Co. v Hartford Ins. Co., 74 AD2d 224; Motor Vehicle Acc. Ind. Corp. v Continental Nat. Amer. Group Co., 35 NY2d 260; Aetna Cas. & Sur. Co. v World Wide Rent-A-Car, 28 AD2d 286; Slocum v Wiltse, 75 AD2d 679.) II. Since R & H Hauling was not an insured person pursuant to Dairylea Cooperative, Inc.’s contract with Lumbermens Mutual Casualty Company, Lumbermens has no obligation to pay any portion of the sums already paid out on behalf of R & H Hauling. (Leotta v Plessinger, 8 NY2d 449.) III. Lumbermens Mutual Casualty Company did not provide coverage to R & H Hauling “on the same basis” as did Aetna Casualty & Surety Company. IV. A review of the two policies and their indorsements reveals that the trial court reached the correct decision. (Interstate Motor Frgt. System v Michigan Mut. Liab. Co., 87 AD2d 715.)

      Jeffrey Kyle Anderson and John Dall Vechia for respondent.
    I. Dairylea was an “owner” of the Brockway vehicle at the time of the accident under the Lumbermens’ policy. II. The court below’s interpretation of and construction afforded Lumbermens’ indorsement No. 17 was a proper one. (American Home Assur. Co. v Hartford Ins. Co., 74 AD2d 224; Sincoffv Liberty Mut. Fire Ins. Co., 11 NY2d 386.) III. The court below was correct in its holding that Lumbermens has asserted no proper basis for a denial of coverage. (Interstate Motor Frgt. System v Michigan Mut. Liab. Co., 87 AD2d 715; American Home Assur. Co. v Hartford Ins. Co., 74 AD2d 224; Aetna Cas. & Sur. Co. v Liberty Mut. Ins. Co., 91 AD2d 317; Allstate Ins. Co. v Travelers Ins. Co., 39 NY2d 784.)
   OPINION OF THE COURT

Meyer, J.

The execution by the purchaser of a vehicle of a note and purchase agreement, and by both seller and purchaser of a security agreement stating that the vehicle is owned by the purchaser is a sufficient transfer of ownership of the vehicle to constitute the purchaser’s insurance carrier the primary insurer of personal injuries thereafter inflicted during the purchaser’s operation of the vehicle, notwithstanding that the prior owner’s license plates remain on the vehicle and that the certificate of title is not transferred until after the injury-causing accident. The order of the Appellate Division insofar as appealed from should, therefore, be reversed, with costs, and judgment granted in favor of Lumbermens Mutual Insurance Company declaring that Aetna Casualty and Surety Company is solely responsible for defense of the personal injury action and payment of the verdicts therein as compromised.

I

On September 23,1978, Brockway tanker 83050, registered in the name of Dairylea Cooperative, Inc., and carrying license plates issued to it, was involved in an accident with a vehicle operated by Mathias Selthafner in which several of the passengers in the Selthafner vehicle were injured. The tanker was being operated by Robert Rossal who, together with Richard Hendrickson, did business as R & H Hauling. On September 1, 1978, Rossal and Hendrickson had executed to Dairylea a promissory note in the amount of $13,500, an agreement authorizing Dairylea to withhold from any amounts due R&H, as the purchase price of tanker 83050, a stipulated monthly sum until a total of $13,500 plus interest had been retained, and a security agreement in which the tanker was stated to be owned by Rossal and Hendrickson doing business as R & H Hauling and they acknowledged Dairylea’s security interest in it to the extent of $13,500 plus interest. A financing statement was filed with the Sullivan County Clerk on September 21,1978, but the transfer portion of the certificate of title was not executed by Dairylea until February 1, 1979, and transfer to R & H was not made on Department of Motor Vehicle records until April 25, 1979. The purchase agreement and note were signed only by R & H; the security agreement and financing statement were signed by both R&H and Dairylea.

Hendrickson had on May 5, 1978 entered into a tank farm hauling contract with Dairylea and on May 22, 1978, a lease of the Brockway tanker, both of which required him to hold Dairy-lea harmless from any and all claims and to obtain insürance naming Dairylea as an additional insured. It is not disputed that in doing so he was acting on behalf of R & H. On August 1,1978, Aetna Casualty issued to R & H its business automobile policy with liability limit for each occurrence of $750,000, which listed Brockway tanker 83050 as a vehicle owned by R & H and named Dairylea not as an additional insured but as a loss payee. Aetna thereafter furnished Dairylea with two certificates stating that its policy covering the tanker had been issued to R & H, neither of which identified Dairylea’s interest under the policy. At all relevant times Dairylea was insured by Lumbermens Mutual under a comprehensive liability policy which stated, without specification of particular vehicles, that it covered all of Dairy-lea’s vehicles, and the liability limit of which was $500,000 for each occurrence.

In the personal injury action brought by the Selthafners, Rossal, Dairylea and R&H were joined as parties defendant and Dairylea claimed over against R&H. Prior to trial of the personal injury action, each insurer began a declaratory judgment action with respect to coverage. In the personal injury action the jury returned verdicts in behalf of the plaintiffs and the Trial Judge granted Dairylea judgment on its claim over against R & H on both common-law principles and on the basis of its hold harmless agreement.

The verdicts as against Rossal, Dairylea and R & H were thereafter compromised for $315,000, it being stipulated that the settlement was without prejudice to the declaratory judgment actions. Those actions were then consolidated and presented for decision on a stipulation of facts and annexed exhibits. Supreme Court held that notwithstanding transfer of the tanker to R & H, Dairylea remained an owner under section 2-401 (subd [3], par [a]) of the Uniform Commercial Code because no document of title had been delivered, but nonetheless held R & H’s insurer, Aetna, primary because its policy listed the tanker as an owned vehicle. The Appellate Division agreed that under the Uniform Commercial Code Dairylea was an “owner” for purposes of Lumbermens’ policy, but held the “other insurance” clause of the latter policy inapplicable and, therefore, modified the judgment to declare that Lumbermens was also a primary insurer. We conclude that the tanker was an owned vehicle under the Aetna policy, but a nonowned vehicle under the Lumbermens policy, notwithstanding the Vehicle and Traffic Law provisions which Aetna argues impose liability upon both Dairylea and Lumbermens as its insurer and the Uniform Commercial Code provision referred to by the courts below. We therefore reverse.

II

There can be no question that the tanker was at the time of the accident an owned automobile covered by the Aetna policy, for it provided liability insurance for any auto and the annexed “Schedule of Covered Autos You Own” listed Brockway tanker 83050, among others. There also is no question that the Aetna policy protected not only R & H as an insured but Dairylea as well, for its definition of “insured” included the statement that, “Anyone liable for the conduct of an insured described above is an insured but only to the extent of that liability.” Nor is it of consequence that the Aetna policy excluded liability assumed under any contract, for Dairylea’s judgment over against R & H is based not only on the hold harmless agreement between them but also on Dairylea’s common-law right to indemnification, which depends not on contract but on the fact that Dairylea has been held vicariously liable, without fault on its part, to the Selthafners, for the negligence of R & H (O’Dowd v American Sur. Co., 3 NY2d 347, 353; Interstate Motor Frgt. System v Michigan Mut. Liab. Co., 87 AD2d 715, mot for lv to app den 57 NY2d 602; Hertz Corp. v Dahill Moving & Stor., 79 AD2d 589, affd 54 NY2d 619; see Rogers v Dorchester Assoc., 32 NY2d 553, 566; 1 NY PJI2d 551). And because the Aetna policy stated that,“For any covered auto you own this policy provides primary insurance,” there can be no question that Aetna’s coverage was primary.

Ill

The situation is, however, different with respect to Lumbermens, whose policy covered no more than the liability of Dairylea and provided no protection at all for Rossal, Hendrickson or R & H Hauling. True, its declaration of coverage listed “all vehicles owned or operated by or for the named insured Dairylea Cooperative, Inc.,” but it is only where the policy by its terms covers the operator as an insured that the insurer of a vehicle’s former owner will be liable to pay a judgment obtained against an operator-transferee after execution of a bill of sale or similar document (General Acc. Fire & Life Assur. Corp. v Piazza, 4 NY2d 659,666; Mason v Allstate Ins. Co., 12 AD2d 138, 144; cf. Nationwide Mut. Ins. Co. v Liberty Mut. Ins. Co., 43 NY2d 810).

By its terms Lumbermens’ policy excluded as an insured “the owner of a non-owned automobile, or any agent or employee of any such owner,” a nonowned automobile being defined as one not owned by the named insured. The sale and security agreements and note which, it is stipulated, were executed 22 days prior to the accident leave no question that at the time of the accident the tanker was not owned by Dairylea within the meaning of the policy, notwithstanding that it still carried plates issued to Dairylea. Furthermore, although the policy definition of “insured” included in addition to Dairylea “any other person while using an owned automobile or a hired automobile with the permission of the named, insured,” the tanker, by reason of the sale and security agreement, was not an owned automobile, nor did the tank farm milk hauling contract, which called for transportation of milk by R & H as an independent contractor rather than use of a particular tanker in the rendition of such service, constitute the tanker a hired automobile within the meaning of that provision. Moreover, it cannot be said in any realistic sense that once the September 1, 1978 agreements and note were executed, Dairylea had any control over use of the tanker or could grant R&H permission to use it (Mason v Allstate Ins. Co., supra; see Fidelity & Cas. Co. v Cosmopolitan Mut. Ins. Co., 33 NY2d 966, 967). As the owner of the tanker, R&H had the right to use it without permission from Dairylea or anyone else.

IV

Thus, on the basis of policy language alone, Aetna’s policy covered the September 23, 1978 accident and Lumbermens’ policy did not. The result reached by the Appellate Division can be sustained, therefore, only if required, as Aetna argues, by the Vehicle and Traffic Law, or by the Uniform Commercial Code, as the courts below held.

A

The Vehicle and Traffic Law bases on which it is claimed that the tanker was “owned” by Dairylea at the time of the accident are that it still carried license plates issued to Dairyléa and that the certificate of title had not been signed over to R&H. Neither entitles Aetna to a declaration that Lumbermens is a primary insurer.

A registered owner who transfers a vehicle without removing the license plates is estopped as against an injured third party from denying ownership, but the estoppel does not prevent his insurance carrier from denying ownership within the meaning of its policy as against another carrier (Matter of Allstate Ins. Co. v Gemmell, 55 NY2d 637, 639; Mason v Allstate Ins. Co., 12 AD2d 138, supra; see Bornhurst v Massachusetts Bonding & Ins. Co., 21 NY2d 581; Phoenix Ins. Co. v Guthiel, 2 NY2d 584;Rudes v Hartford Acc. & Ind. Co., 32 AD2d 575, mot for lv to app den 25 NY2d 739; 1 NY PJI2d 569).

Nor does either section 388 or section 2113 of the Vehicle and Traffic Law require a contrary conclusion. Both as a lessee for a period greater than 30 days under the prior lease agreement and as the purchaser under the September 1, 1978 agreements and note, R&H was an owner (Vehicle and Traffic Law, § 128) and “as such, was required to obtain its own insurance coverage and could not rely on” Dairylea’s policy (MVAIC v Continental Nat. Amer. Group Co., 35 NY2d 260, 265). Dairylea’s reservation of a security interest in the September 1, 1978 documents did not affect that result or constitute it an owner (Vehicle and Traffic Law, § 388, subd 3).

Section 2113 of the Vehicle and Traffic Law, although somewhat less clear, does not sustain a different result. Although subdivision (c) states that a transfer is not perfected so as to be valid against third parties generally until the certificate has been indorsed and application for a new certificate together with the required fee has been presented to the Department of Motor Vehicles, it also provides that “an owner who has delivered possession of the vehicle to the transferee and has complied with [those requirements] is not deemed an owner within the provisions of section three hundred eighty-eight of this chapter.” The cross-reference to section 388 of the Vehicle and Traffic Law strongly suggests that the Legislature intended no change by adoption of the section in the rule that the Vehicle and Traffic Law’s provisions not inure to the benefit of an insurer.

The section is part of title X of the Vehicle and Traffic Law, which is the Uniform Vehicle Certificate of Title Act (§ 2134). Under its definition of “owner” (§ 2101, subd [g]), R & H as “a person entitled to the use and possession of a vehicle subject to a security interest in another person” is an owner and Dairylea, as a “lienholder,” is not. Moreover, the Act does not foreclose Dairylea’s showing title to be in R & H, for it only constitutes, “A certificate of title * * * prima facie evidence of the facts appearing on it” (§ 2108, subd [c]), and doing so is not inconsistent with the purpose of the Uniform Act which is “[t]o furnish convenient evidence of vehicle ownership” (11 ULA [Master ed], p 421, Commissioners’ Prefatory Note; accord Atwood Chevrolet-Olds. v Aberdeen Mun. School Dist., 431 So 2d 926, 928 [Miss]).

Finally, and most importantly, the Act is to “be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it” (§ 2133), and the courts of most States that have considered the question have reached the same conclusion as do we. Thus, the proviso to subdivision (c) of section 2113 has been held to go “only to when a previous owner is no longer liable and does not purport to define when a previous owner remains the owner for purposes of . insurance coverage” (Country Mut. Ins. v Aetna Life & Cas. Ins. Co., 69 Ill App 3d 764, 767; accord Bacheller v Employer Mut. Liab. Ins. Co., 93 Wis 2d 564), and to be inapplicable between carriers because, “It does not appear that the rights of third-party insurance carriers were intended to be governed by this statute” (Lynch v United States Branch, Gen. Acc. Fire & Life Assur. Corp., 327 F2d 328, 332). The section has likewise been held not to defer vesting of title in a purchaser until the Act has been complied with (Galemore v Mid-West Nat. Fire & Cas. Ins. Co., 443 SW2d 194, 198 [Mo]; National Exch. Bank v Mann, 81 Wis 2d 352; Southern Fire & Cas. Co. v Teal, 287 F Supp 617, affd on opn below 406 F2d 1330; cf. New Jersey Mfrs. Ins. Co. v Keystone Ins. Co., 112 NJ Super 585; see Congress Fin. Corp. v Funderburk, 416 So 2d 1059,1062 [Ala]). There are cases contra (Fireman’s Fund Ins. Cos. v Blais, 14 Mass App 254, cert den 440 NE2d 1177; Nationwide Mut. Ins. Co. v Hayes, 276 NC 620) but, for the reasons set forth above, we decline to follow them.

B

The courts below held Dairylea to be an owner under the Lumbermens policy by reason of section 2-401 (subd [3], par [a]) of the Uniform Commercial Code. To the extent that the Uniform Commercial Code has any bearing on the obligations of insurance carriers, however, we conclude that, for several reasons, section 2-401 (subd [3], par [a]) is inapplicable and that title passed to R & H on September 1,1978 under subdivision (2) of that section.

First, even if subdivision (3) were deemed applicable, the certificate of title to the tanker was not a “document of title” within its meaning. “Document of title” is defined in subdivision 15 of section 1-201 of the Uniform Commercial Code, which is made applicable to article 2 by subdivision 4 of section 2-103 of that Code. That definition is as follows: “ ‘Document of title’ includes bill of lading, dock warrant, dock receipt, warehouse receipt or order for the delivery of goods, and also any other document which in the regular course of business or financing is treated as adequately evidencing that the person in possession of it is entitled to receive, hold and dispose of the document and the goods it covers. To be a document of title a document must purport to be issued by or addressed to a bailee and purport to cover goods in the bailee’s possession which are either identified or are fungible portions of an identified mass.” In light of the last sentence, there can be no question that the certificate of title provided for in article 46 of the Vehicle and Traffic Law, although a title document in a broad sense is not a document of title within the meaning of section 2-401 (subd [3], par [a]) of the Uniform Commercial Code (see Matter of Emergency Beacon Corp., 665 F2d 36, 41; National Exch. Bank v Mann, 81 Wis 2d 352, supra; Draper Bank & Trust Co. v Lawson, 675 P2d 1174 [Utah]; Medico Leasing Co. v Smith, 457 P2d 548 [Okla]).

Second, subdivision (3) applies, however, only “where delivery is to be made without moving the goods,” and Official Comment 4 makes clear that the quoted phrase refers to goods which remain in the seller’s possession — “subsections (2) and (3) * * * actually base the test upon the time when the seller has finally committed himself in regard to specific goods * * * If shipment is not contemplated subsection (3) turns on the seller’s final commitment, i.e. the delivery of documents or the making of the contract.” Here, the specific property was in the possession of R&H when the September 1, 1978 papers were executed and the seller had on that date by acknowledging R & H’s ownership of the tanker committed itself as to the specific goods being sold.

While subdivision (3) of section 2-401 of the Uniform Commercial Code does not apply under the circumstances of the present case, subdivision (2) of that section does. That subdivision provides: “Unless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods, despite any reservation of a security interest and even though a document of title is to be delivered at a different time or place”. The tanker being in possession of R & H when the agreements and note were signed, title passed to R & H, therefore, at the time those documents were executed (Motors Ins. Corp. v Safeco Ins. Co.„ 412 SW2d 584 [Ky]; Galemore v Mid-West Nat. Fire & Cas. Ins. Co., 443 SW2d 194 [Mo], supra; Knotts v Safeco Ins. Co., 78 NM 395; Nationwide Mut. Ins. Co. v Hayes, 276 NC 620, supra; see Fulater v Palmer’s Granite Garage, 90 AD2d 685, app dsmd 58 NY2d 826; Blackmer v Travelers Ind. Co., 110 Misc 2d 704, 708-709; New Jersey Mfrs. Ins. Co. v Keystone Ins. Co., 112 NJ Super 585, supra; contra Fireman’s Fund Ins. Cos. v Blais, 14 Mass App 254, cert den 440 NE2d 1177, supra).

V

The order of the Appellate Division having been based upon an erroneous view of the applicability of the Uniform Commercial Code and of the significance of the “other insurance” provision of the Lumbermens policy, and there being no question under the facts as stipulated that the Lumbermens policy provided no coverage of R & H as to the September 23, 1978 accident, the order of the Appellate Division insofar as appealed from should be reversed, with costs, and judgment granted in favor of Lumbermens Mutual Insurance Company declaring that Aetna Casualty and Surety Company is solely responsible for defense of the personal injury action and payment of the verdicts therein as compromised.

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

Order insofar as appealed from reversed, with costs, and judgment granted in favor of appellant in accordance with the opinion herein.

      , Excepted from the quoted provision was a hired or borrowed auto, other than a trailer connected to a covered auto, but at the time of the accident the tanker was no longer under lease to R & H, they having purchased it by the September 1, 1978 agreement, note and security agreement.

      . In view of the conclusion hereafter reached we need not consider whether R & H’s obligation to indemnify Dairylea imposes any additional obligation upon Aetna.

      . The provision reads as follows: “Unless explicitly agreed where delivery is to be made without moving the goods, (a) if the seller is to deliver a document of title, title passes at the time when and the place where he delivers such documents”.


author: Per Curiam.

text:
    In the Matter of Jane PP., Respondent, v Paul QQ., Appellant.
    Argued November 19, 1984;
    decided December 13, 1984

      POINTS OF COUNSEL

      James A. Baker for appellant.
    I. An order of filiation, entered in the course of a proceeding for permanent support, is not an “order of disposition” within the meaning of section 1112 of the Family Court Act. (Matter of Susan W. v Amhad Q., 65 AD2d 594, 46 NY2d 1037; Matter of Katherine S. v Jerry S., 67 AD2d 926; Matter of Joan S. v Ronald B., 71 AD2d 606; Nancy V. v Raymond E. C., 75 AD2d 599; Matter of Carmen V. v Bruce R., 80 AD2d 560; Matter of Karen K. v Christopher D., 86 AD2d 633; Commissioner of Public Welfare v Koehler, 284 NY 260; Matter of Kordek v Wood, 90 AD2d 209; Matter of Sharon GG. v Duane HH., 95 AD2d 466.) II. An order of filiation, entered in the course of a proceeding for child support, is reviewable on an appeal from the permanent order of support. (Matter of Kordek v Wood, 90 AD2d 209; Matter of Sharon GG. v Duane HH., 95 AD2d 466; Ocasio v Ocasio, 49 AD2d 801; Matter of Taylor v Taylor, 23 AD2d 747; Firestone v Firestone, 44 AD2d 671; Rizzo v Rizzo, 31 AD2d 1001; Matter of Susan W. v Amhad Q., 65 AD2d 594,46 NY2d 1037.) III. Respondent-appellant’s appeal from the Family Court order of filiation is timely. (Matter of Susan W. v Amhad Q., 65 AD2d 594, 46 NY2d 1037; Matter of Katherine S. v Jerry S., 67 AD2d 926; Matter of Joan S. v Ronald B ., 71 AD2d 606; Nancy V. v Raymond E. C., 75 AD2d 599; Matter of Carmen

      V. v Bruce R., 80 AD2d 560; Matter of Karen K. v Christopher D., 86 AD2d 633.)

      Donald C. Armstrong for respondent.
    An order of filiation can constitute an “order of disposition” within the meaning of section 1112 of the Family Court Act. (Firestone v Firestone, 44 AD2d 671; Matter of Susan W. v Amhad Q., 65 AD2d 594; Matter of Kordek v Wood, 90 AD2d 209; Matter of Commissioner of Social Servs. v Lazaro F., 99 Misc 2d 408; Matter of Czajak v Vavonese, 104 Misc 2d 601; Joye v Schechter, 112 Misc 2d 172.)
   OPINION OF THE COURT

Per Curiam.

A filiation order which makes no provision for support constitutes an order appealable as of right under section 1112 of the Family Court Act, when the paternity proceeding has not sought support, but is not appealable without permission when support was sought in the paternity petition. There should, therefore, be a reversal and remittal to the Appellate Division.

In separate petitions to establish paternity and for support, petitioner sought relief against respondent. The paternity petition asked for a declaration of paternity, an order of support and other and further relief. A separate petition, which was entitled under article 4 and sought an order of support, stated that no previous application for such relief had been made except in the paternity petition filed the same day as the support proceeding. After a hearing respondent was, by order dated January 11, 1983, declared to be the father of the child, and on the following day a temporary order of support, entitled, however, under article 4 rather than article 5 of the Family Court Act, was signed awarding temporary support, as well as counsel fees. The counsel fee award was stated in the order to have been made one half pursuant to section 536 of the Family Court Act and one half pursuant to section 438 of the Family Court Act.

The matter was then set down for hearing on March 30,1983 on the question of permanent support, and after that hearing a permanent support order was entered on May 11, 1983. From that order respondent appealed by a notice of appeal dated May 13,1983. The Appellate Division affirmed without reaching the paternity determination, holding respondent collaterally es-topped as to that question by his failure to appeal from the January 11, 1983 order. Two Justices concurring in the result would have reached the paternity question, concluding that respondent should not be deprived of the right to review of the issue on the technicality that the support order “did not incorporate the filiation order” as the majority had noted. We agree with the concurring Justices and therefore reverse and remit for consideration of the paternity issue.

We have recently had reason to consider the problems arising from the fact that traditionally the sole purpose of a paternity proceeding was to establish the father’s obligation for support (Matter of Cathleen P. v Gary P., 63 NY2d 805; Matter of Sharon GG. v Duane HH., 63 NY2d 859). Recognizing that recent statutory developments have made it possible for the mother, a putative father or a welfare official to bring a support proceeding, we held in Matter of Cathleen P. v Gary P. (supra) that a mother was not barred from instituting an action for paternity and support by the prior dismissal of a support proceeding begun by a welfare official.

On similar reasoning, we conclude that although a filiation order may constitute an appealable order of disposition when the paternity proceeding does not seek support, it should not be so regarded when support is sought in the paternity proceeding, even if by a separate petition a support proceeding is commenced at the same time. So to hold conserves judicial resources by making piecemeal appeals unnecessary and does not adversely affect any party to the filiation proceeding because under section 1112 of the Family Court Act, appeal by permission is available when cause for a separate appeal of the filiation order is shown. To hold as did the majority below, on the other hand, gives too great an effect to the happenstance that two proceedings were instituted when only one need have been, particularly since in the Family Court litigants often appear pro se and proceedings are instituted on forms prescribed by the State administrator (Family Ct Act, § 214) which the clerk of the court is directed to give to any person requesting them (Family Ct Act, § 216-b) and which the clerk or a member of his staff often complete (Family Ct Act, § 216-c, and Practice Commentary thereto, McKinney’s Cons Laws of NY, Book 29A, part I, p 147).

The order of the Appellate Division should, therefore, be reversed, without costs, and the matter remitted to the Appellate Division for consideration of respondent’s appeal from the order of filiation.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur in Per Curiam opinion.

Order reversed, without costs, and matter remitted to the Appellate Division, Third Department, for further proceedings in accordance with the opinion herein.

       Although respondent in this case was represented by counsel, who might have protected the situation by filing a notice of appeal from the January 11,1983 order, then existing precedent had held an order of filiation to be reviewable on appeal from the order of support (Matter of Karen K. v Christopher D., 86 AD2d 633; Matter of Susan W. v Amhad Q., 65 AD2d 594, mot for lv to app den 46 NY2d 1037; see Matter of Kordek v Wood, 90 AD2d 209).