text:
    In the Matter of the Arbitration between Local 345 of the Retail Store Employees Union, Respondent, and Heinrich Motors, Inc., Appellant.
    Submitted December 5, 1983;
    decided February 28, 1984

      APPEARANCES OF COUNSEL

      William E. McKnight for appellant.

      Harold Cohen for respondent.
   OPINION OF THE COURT

On the court’s own motion, appeal taken as of right pursuant to CPLR 5601 (subd [d]) dismissed, without costs, upon the ground that it does not lie to review an order of the Appellate Division made on an appeal in a prior arbitration proceeding (Matter of Concerned Citizens to Review Jefferson Val. Mall v Town Bd. of Town of Yorktown, 54 NY2d 957). Motion for leave to appeal from the November 4,1983 order of the Appellate Division, seeking review of that order, granted.


source: Caselaw Access Project

license: Public Domain

text:
    Edward M. Normile, Individually and on Behalf of All Others Similarly Situated, Appellant, v Allstate Insurance Company, Respondent.
    Submitted December 27, 1983;
    decided February 28, 1984
   Motion to amend the remittitur granted. Return of the remittitur requested and, when returned, it will be amended by adding thereto the following: Upon the appeal herein there were presented and necessarily passed upon questions under the Constitution of the United States, viz: Whether the rights of plaintiff-appellant under the Fourteenth Amendment were denied. Plaintiff-appellant argued that he was denied due process of law and equal protection of the law by the limitation on his right to recovery pursuant to section 671 of the New York State Insurance Law. The Court of Appeals considered plaintiff-appellant’s contentions and held that there were no violations of his constitutional rights. [See 60 NY2d 1003.]


text:
    Inell Petty et al., Respondents, v Jerome H. Field, Appellant, et al., Respondents.
    Submitted February 6, 1984;
    decided February 28, 1984
   Motion to dismiss appeal granted and appeal dismissed, without costs, upon the ground that appellant is not aggrieved by the modification at the Appellate Division, termed by that court a reversal (CPLR 5601, subd [a], par [iii]).


text:
    In the Matter of Scarborough School Corp. et al., Respondents, v Assessor of the Town of Ossining et al., Appellants, and Assessor of the Village of Briarcliff Manor et al., Respondents.
    Submitted January 16, 1984;
    decided February 28, 1984
   Motions for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and it is not an order of the type provided for in CPLR 5602 (subd [a], par 2) (Matter of F. J. Zeronda, Inc. v Town Bd. of Town of Halfmoon, 37 NY2d 198).

Judge Meyer taking no part.


text:
    The People of the State of New York, Respondent, v Lemuel Smith, Appellant.
    Submitted February 20, 1984;
    decided February 28, 1984
   Motion to dismiss appeal, etc., denied.


text:
    Arthur P. Tomlinson, Respondent, v James Lodato, Appellant.
    Submitted January 30, 1984;
    decided February 28, 1984
   Motion, insofar as it seeks leave to appeal from so much of the order of the Appellate Division as affirmed the June 24, 1982 order denying a motion to vacate a judgment, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion otherwise denied. Twenty dollars costs and necessary reproduction disbursements to respondent.


text:
    In the Matter of the Board of Education of the Dover Union Free School District, Appellant, v Dover-Wingdale Teachers’ Association, Respondent.
    Decided March 20, 1984

      APPEARANCES OF COUNSEL

      David S. Shaw for appellant.

      Kevin H. Harren and Bernard F. Ashe for respondent.
   OPINION OF THE COURT

Memorandum.

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

Any limitation upon the remedial power of the arbitrator must be clearly contained, either explicitly or incorporated by reference, in the arbitration clause itself. (Matter of Silverman [Benmor Coats], 61 NY2d 299.) To infer a limitation from an ambiguous and general clause in the substantive provisions of the agreement would, in effect, require judicial interpretation of the contract and judicial interference with an arbitration award which should be avoided unless that award be violative of a strong public policy, totally irrational or in excess of a specifically enumerated limitation upon arbitral authority. (Matter of Sprinzen [Nomberg], 46 NY2d 623, 629-630; Matter of Nationwide Gen. Ins. Co. v Investors Ins. Co., 37 NY2d 91, 95.) The limitation urged by petitioner Board of Education meets none of these criteria and, consequently, provides no basis for vacating the award.

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 Abraham Kreiss et al., Respondents, v New York State Tax Commission, Appellant.
    Argued February 14, 1984;
    decided March 20, 1984

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Wayne L. Benjamin and Peter H. Schiff of counsel), for appellant.

      Christine Carey Daniels and Stephen E. Cooper for respondents.
   OPINION OF THE COURT

Memorandum.

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

The full amount of capital gain realized from the sale was included in petitioners’ adjusted gross income on their Federal income tax return for 1974 and thus was properly reported on their New York State income tax return for that year (Tax Law, § 612). Although the Federal Government allowed the petitioners a partial refund in 1977 under the “claim of right” doctrine, that had no effect on their Federal adjusted gross income for 1974 (US Code, tit 26, § 1341) and there is no corresponding refund provision in the New York statute. Consequently, no mistake within the meaning of section 697 of the Tax Law was made on petitioners’ 1974 New York State income tax return. Any inequity which may result from the dissimilarity between the Federal and State statutes is a consequence of the present statutory scheme and is not a matter within the authority of the judiciary to correct.

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

Order reversed, etc.


text:
    Eugene Litman, Appellant, v Phyllis Litman, Respondent.
    Argued February 17, 1984;
    decided March 20, 1984

      APPEARANCES OF COUNSEL

      Kathy Solerwitz and Barbara Simon for appellant.

      Kenneth J. Weinstein and Richard C. Goldberg for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, and question certified answered in the affirmative for the reasons stated in the Per Curiam opinion at the Appellate Division (93 AD2d 695). We cannot say that the expert opinion with respect to the economic value of the plaintiff’s law practice would not be of assistance in fashioning a distributive award under the statute.

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


text:
    In the Matter of Donald H. Elliott, Appellant, v City of Binghamton et al., Respondents.
    Argued February 14, 1984;
    decided March 20, 1984

      APPEARANCES OF COUNSEL

      Thomas M. Christina for appellant.

      Kenneth Auerbach, Corporation Counsel (David M. Dutko and Lawrence Praga of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum of the Appellate Division (94 AD2d 887).

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


text:
    Fanny Bahan et al., Respondents, v Green Bus Lines, Inc., Appellant. (And a Third-Party Action.)
    Argued February 17, 1984;
    decided March 20, 1984

      APPEARANCES OF COUNSEL

      Robert H. Fischler and Michael J. Lenoff for appellant.

      Nathan L. Berke for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum of the Appellate Division (96 AD2d 876).

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


text:
    In the Matter of Alvin Friedman-Kien, Appellant, v City of New York et al., Respondents.
    Argued February 13, 1984;
    decided March 20, 1984

      APPEARANCES OF COUNSEL

      Daniel H. Schneider and Leon D. Schneider for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Fay Leoussis and Michael Gage of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (92 AD2d 827).

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


text:
    In the Matter of Huntington TV Cable Corporation, Appellant, v State of New York Commission on Cable Television et al., Respondents.
    Argued February 16, 1984;
    decided March 20, 1984

      APPEARANCES OF COUNSEL

      Arthur Goldstein for appellant.

      Robert Abrams, Attorney-General {Peter G. Crary and Peter H. Schiff of counsel), for State of New York Commission on Cable Television, respondent.

      Deirdre Maura Conforte, Town Attorney {Robert De Gregorio of counsel), for Town of Huntington, respondent.

      Joseph F. Carlino and Marjorie E. Bornes for Cablevision Systems Huntington Corporation, respondent.
   OPINION OF THE COURT

Memorandum.

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

On January 6, 1981, the Town Board of the Town of Huntington, after public hearings pursuant to notice, by resolution approved an amendment to its agreement with Cablevision Systems Huntington, one of its two nonexclusive cable franchisees, to provide for aboveground and underground expansion of cable television services. The resolution recited that Cablevision had made oral representations at the hearing upon which the town’s approval was conditioned, and directed Cablevision to place its representations in a writing to be approved by the Town Supervisor. On January 29, 1981, Cablevision presented the town with such a writing, which was approved by the Supervisor. By order of March 25, 1981, the State of New York Commission on Cable Television, pursuant to section 822 of the Executive Law, approved the amendment as set forth in the January 6 resolution and January 29 letter. Appellant, Huntington TV Cable Corporation, the town’s other cable franchisee, having fought approval of the amendment before the Town Board and the Commission, then brought an article 78 proceeding to set aside the Commission’s order on the ground that the amended franchise adopted by the Town Board on January 6 was improperly altered by the January 29 letter, which appellant alleges contained substantial deviations concerning when Cablevision would energize its aboveground cable lines. Both Special Term and the Appellate Division upheld the Commission’s order. Because the January 29 letter did not substantially deviate from the resolution, we affirm

Section 822 of the Executive Law provides that the Commission shall not approve a cable franchise amendment if “approval would be in violation of law.” The Commission’s rules further provide that “[n]o cable television franchise may be amended except after a public hearing preceded by reasonable notice.” (9 NYCRR 592-1.3 [a].) A grant of franchise rights must be made by the Town Board (Town Law, § 64, subd 7) and section 94-32 of the Huntington Town Code requires that “[n]o franchise shall be granted * * * unless by resolution of the Town Board * * * after a public hearing and after the required notice provisions are complied with”. Here, the Town Board’s resolution of January 6 was adopted after notice and hearings. The resolution concludes:

“further resolved that, as a result of said hearing Cable Systems of Huntington, Inc. made certain representations to this Board as to construction schedule and energizing systems and other matters and therefore these representations shall be considered conditions precedent for the continuance of this franchise and the franchisee shall execute necessary papers to place these representations in writing and same shall be approved by the Supervisor for the Town Board and the Town Attorney, and such agreement shall contain, among other provisions, the following:

“(a). At the end of fifteen (15) months, there shall be a completion of the underground installation;

“(b). All work shall be completed within twenty-four (24) months; and

“(c). There shall be a non-energization of the above ground facilities and system until completion of all underground work.”

The “necessary papers” referred to in the resolution were thereafter embodied in Cablevision’s January 29 letter. That letter contained the following promises of Cable vision, which were accepted by the Town Supervisor:

“Cablevision will not energize or turn on its cable television system in Area 2B until Areas 1 and 2A are completed and energized, and will meet its 24-month deadline for completion of all its construction work.

“Unless Cablevision has fully constructed all underground work in unserved portions of Areas 1 and 2A, Cablevision will not energize or turn on any portion of its overhead system in the served area designated as Area 1, north of the Northern State Parkway, without the prior approval of the Town Board.”

Appellant claims that the January 29 letter materially altered the January 6 resolution in that the letter provides for partial aboveground energization before all underground cable work is finished, and that the absence of notice and a hearing regarding this alteration rendered the franchise amendment unlawful and not subject to approval by the Commission. This would be so only if the terms of the letter amounted to a substantial deviation from the resolution of the Town Board approved on January 6. (Village of Mill Neck v Nolan, 259 NY 596, 597; see Orth-O-Vision, Inc. v City of New York, 101 Misc 2d 987, 997.)

A review of the record, particularly the minutes of the January 6 Town Board hearing at which the resolution was adopted and the executive session that preceded that hearing, shows that the Board intended that the amendment provide for schedules for completion of underground work and that the Board intended to reserve the power to approve any aboveground energization as a means of insuring timely performance of Cablevision’s underground work. The January 29 letter is consistent with that expressed intent, and amounts to the clarification called for by the Board’s resolution, not the type of substantial deviation requiring new notice and hearing.

Given the evidence in the record, there was a rational basis for the Commission’s conclusion that the amendment complied with necessary notice and hearing procedures, and the court below was therefore correct in approving the Commission’s order.

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

Order affirmed, with costs, in a memorandum.

       Several other procedural errors, which were alleged by appellant and rejected by the courts below, are not pressed on this appeal.


text:
    Melvin M. Kaufman, Appellant, v International Business Machines Corporation, Respondent.
    Decided March 20, 1984

      APPEARANCES OF COUNSEL

      Melvin M. Kaufman, appellant pro se.

      Edward G. Imperatore for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, without costs, for the reasons stated in the memorandum of the Appellate Division (97 AD2d 925). Plaintiff’s complaint and submissions in response to defendant’s motion to dismiss pursuant to CPLR 3211 (subd [a], par 7) have demonstrated that plaintiff has not stated a cause of action against defendant for which the requested relief can be granted. (See Davis v Williams, 59 AD2d 660, affd 44 NY2d 882.)

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, without costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Willie Lee Johnson, Appellant.
    Argued February 14, 1984;
    decided March 20, 1984

      APPEARANCES OF COUNSEL

      Edward J. Nowak, Public Defender (Brian Shiffrin of counsel), for appellant.

      Howard R. Relin, District Attorney (Kenneth R. Fisher of counsel), for respondent.
   OPINIÓN OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

None of the errors urged by defendant warrants reversal of his conviction. It was not an abuse of discretion by the trial court to exclude testimony offered by defendant to establish possible motive on the part of a prosecution witness and her boyfriend to have committed the crime with which defendant was charged. Because this evidence related to collateral issues and the times of the events sought to be established by the testimony were not specified, its admission was committed to the sound discretion of the Trial Judge. Inasmuch as no argument was then advanced that the testimony was admissible to show bias on the part of the witness, this issue was not preserved for our review.

The statements made by defendant to Police Officers Rafferty and Bishop were found by the Appellate Division to have been made in noncustodial settings; the suppression court had made no findings in this regard. We cannot say, on the record before us, that the factual determination made by the Appellate Division was erroneous as a matter of law. Although the statements thereafter made by defendant at the Public Safety Building were elicited while he was in custody, based on testimony in the record the courts below both found that defendant had previously been given the preinterrogation warnings to which he was constitutionally entitled and had then waived the rights of which he was* advised.

Defendant’s contention that he was denied his constitutional right to counsel in view of his representation in an unrelated criminal proceeding must be rejected inasmuch as there is no evidence in the record that the interrogating police officers had any knowledge of the unrelated proceeding or of defendant’s representation by counsel therein (People v Kinchen, 60 NY2d 772).

Finally, we conclude that the evidence was sufficient to sustain the verdict returned by the jury. There was testimony from which the jury could have concluded that defendant had exclusive access to his apartment in which the victim’s body was found and had been observed outside the apartment with the victim in the afternoon preceding her death and coming out of the apartment alone thereafter, and statements made by defendant properly received in evidence disclosing a pattern of inconsistent, and sometimes false, exculpatory stories permitted the jury to draw an inference of defendant’s consciousness of guilt.

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

Order affirmed in a memorandum.


text:
    Niagara Mohawk Power Corporation, Plaintiff, v Mary Jesionowski, as Executrix of Walter Jesionowski, Deceased, et al., Appellants, and Henry R. Jesionowski, Respondent.
    Argued February 15, 1984;
    decided March 20, 1984

      APPEARANCES OF COUNSEL

      Thomas M. Hirschen, Alfred E. Goldberger and Jeffrey N. Miller for Mary Jesionowski, appellant.

      Vincent Capasso, Jr., for Richard C. Jesionowski, appellant.

      E. David Duncan for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (94 AD2d 815).

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


text:
    In the Matter of Myron Goldstein, R.P.T., P. C., Appellant. Lillian Roberts, as Commissioner of Labor, Respondent.
    Argued February 17, 1984;
    decided March 20, 1984

      APPEARANCES OF COUNSEL

      Mona N. Glanzer for appellant.

      Robert Abrams, Attorney-General (.Richard S. LoPrimo, Peter H. Schiff, George D. Zuckerman and Jonathan Irons of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

It must be recognized that the services of the members of various professions, here physiotherapy, by the very nature of the professional and ethical responsibilities of its members are not subject to control to the same extent or in the same manner as are other personal services (Matter of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d 734). Given that characteristic of the services rendered in this case, we conclude that there was substantial evidence to support the decision of the Unemployment Insurance Appeal Board that the registered physical therapists in this instance were employees rather than independent contractors.

The physical therapists were engaged by Myron Gold-stein, himself a physical therapist who had formed a professional corporation to treat the overflow of his patients, although the therapists were also permitted to treat their own patients. Patients referred to Myron Goldstein or the corporation were assigned to the individual physical therapists by the clerical staff which billed all patients, with the fees paid by the patients of the individual therapists going to the therapists. The latter, however, were also paid a fixed weekly sum for services rendered to patients other than their own. The corporation provided the physical facilities, fixtures and equipment used in the rendition of services and paid all expenses of maintenance thereof. On this record the Appeal Board was warranted in concluding that the status of the individual physical therapists was that of employee for the purposes of the Unemployment Insurance Law.

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

Order affirmed, with costs, in a memorandum.


text:
    Kathleen Coyne, Appellant, v Robert A. Bersani, Respondent.
    Argued February 13, 1984;
    decided March 20, 1984

      APPEARANCES OF COUNSEL

      Paul J. Giancola for appellant.

      John Ganotis for respondent.
   opinion of the court

Order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (94 AD2d 961), to which we add that the submission by defendant at plaintiff’s request of reports to other doctors independently consulted by plaintiff does not evidence the continuing trust and confidence which is one of the predicates for the, continuous treatment doctrine on which plaintiff seeks to rely (see Greene v Greene, 56 NY2d 86, 94; Barrella v Richmond Mem. Hosp., 88 AD2d 379, 383).

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


text:
    In the Matter of John F. Schatzel, Respondent, v William G. Connelie, as Superintendent of the New York State Police, et al., Appellants.
    Argued February 17, 1984;
    decided March 20, 1984

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General {John Q. Driscoll and Peter H. Schiff of counsel), for appellants.

      Arthur M. Kahn for respondent.
   OPINION OF THE COURT

Memorandum.

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

Constitutionality of the provision of subdivision 3 of section 215 of the Executive Law, which authorizes the Superintendent to extend the age limit for State Police candidates, is presumed and that presumption has not been challenged on this appeal. The only question before us, therefore, is whether the Superintendent acted arbitrarily in extending the age limit for candidate Casey but refusing to do so with respect to the present petitioner. On the record before us we cannot say that the different treatment accorded was without rational basis.

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

Order reversed, etc.


text:
    Council for Owner Occupied Housing, Inc., et al., Appellants, v Edward Koch, as Mayor of the City of New York, et al., Respondents.
    Argued February 13, 1984;
    decided March 20, 1984

      APPEARANCES OF COUNSEL

      Norman L. Faber for appellants.

      Frederick A. 0. Schwarz, Jr., Corporation Counsel (Nanette Dembitz and Francis F. Caputo of counsel), for Edward Koch, as Mayor of the City of New York and others, respondents.

      Robert Abrams, Attorney-General (Harvey J. Golubock, Joel Graber and James M. Morrissey of counsel), respondent pro se.

   OPINION OF THE COURT

Judgment affirmed, with costs, for reasons stated in the opinion by Justice Eugene R. Wolin at Supreme Court, New York County (119 Misc 2d 241; see, also, Consolidated Edison Co. v Town of Red Hook, 60 NY2d 99).

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


text:
    The People of the State of New York, Respondent, v Scott B. McPherson, Appellant.
    Argued February 22, 1984;
    decided March 20, 1984
    APPEARANCES OF COUNSEL

      Melvin L. Olver and Richard J. Evans for appellant.

      Howard R. Relin, District Attorney (J. Michael Collins of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the County Court should be affirmed.

Shortly after 7:00 p.m. on August 15, 1981, an automobile driven by defendant crashed into a bridge abutment. The police soon arrived, finding defendant bleeding and pinned behind the steering wheel and a passenger unconscious on the seat next to him. It was not until 7:45 p.m. that defendant was extricated. Upon being removed from the car, defendant, who was in a disoriented state, resisted assistance offered by medical personnel and had to be restrained on a stretcher before being taken to a hospital for treatment. At 8:35 p.m., defendant was interviewed in the hospital by a police officer. The officer observed that defendant’s eyes were bloodshot and that his speech was slurred, whereupon defendant was placed under arrest and read his Miranda rights. Shortly before 10:00 p.m., defendant was again advised of his Miranda rights and, with his consent, was administered a blood test. The results of the test revealed that defendant had a blood-alcohol level of .17%.

Defendant moved in Town Court to suppress the test results, which motion was denied. He was then convicted, upon a guilty plea, of driving while intoxicated, but appealed the Town Court’s order denying defendant’s motion to suppress. The County Court affirmed.

On this appeal, defendant argues that the blood test results should have been suppressed on the ground that the test was taken in violation of the requirement of section 1194 (subd 1, par [1]) of the Vehicle and Traffic Law that such a test be administered within two hours of the subject’s arrest. To this end, it is contended that at the scene of the accident the police had probable cause to support defendant’s arrest for driving while intoxicated and that defendant was, in fact, arrested when he was restrained and placed in the ambulance.

Defendant’s contentions are essentially factual in nature. And, in view of the affirmed finding of the Town Court that defendant was not arrested until 8:35 p.m., the determination that the test was administered within the statutory time limit may not be disturbed by this court (cf. Humphrey v State of New York, 60 NY2d 742, 743-744).

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

Order affirmed in a memorandum.


text:
    In the Matter of Finserv Computer Corporation, Appellant, v James H. Tully et al., Constituting the New York State Tax Commission, Respondents.
    Argued February 17, 1984;
    decided March 20, 1984

      APPEARANCES OF COUNSEL

      E. Guy Roemer for appellant.

      Robert Abrams, Attorney-General (Francis V. Dow and Peter H. Schiff of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Justice Howard A. Levine at the Appellate Division (94 AD2d 197).

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


author: Chief Judge Cooke

text:
    Phillips Construction Co., Inc., Respondent, v City of New York, Appellant. (And a Third-Party Action.)
    Argued January 6, 1984;
    decided February 14, 1984
    APPEARANCES OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel {James P. Griffin and Leonard Koerner of counsel), for appellant.

      Saul Weprin, Julius L. Schapira and Louis Cantor for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, plaintiff’s motion to strike the tenth defense (Statute of Limitations), denied, and defendant’s motion to dismiss the action as time barred under the six-year Statute of Limitations (CPLR 213, subd 2), granted.

This action arises out of the construction of an ice skating rink at Clove Lake Park, Staten Island, New York. The provisions of article 53 of the construction contract prescribed a supplemental period of limitation for assertions of claims against the city. Nothing in the record suggests that the provisions of that article were intended by the contracting parties wholly to supplant the Statute of Limitations prescribed in the CPLR, if indeed the parties were free to do so (Kassner & Co. v City of New York, 46 NY2d 544). Accordingly, the six-year period of limitations prescribed in CPLR 213 (subd 2) is applicable.

In arguing as to the date of accrual of the causes of action alleged in the complaint plaintiff points to certain language lifted out of article 42 of the contract (entitled “Final Payment”): “[T]he certification of the Engineer [on the final payment voucher] and the approval of the Commissioner thereof, shall be a condition precedent to the right of the Contractor to receive any money thereunder.” (Emphasis is that of plaintiff contractor.) This provision is explicitly made applicable, however, only to the right to receive payment under the final voucher; it has no relation to the institution of actions for breach of obligations other than the obligation to make payment under that voucher. The present action for damages for the cost of additional work occasioned by but not included in change orders, for extra work performed, and for delay damages is grounded in allegations of liability of the city arising out of the contract but apart from its obligations under the payment provisions of the contract. It is not based on any asserted nonperformance of payment mandated by the final voucher or on any insufficiency in the amount of the final voucher which was not certified until September, 1979, some 20 months after the present action was commenced.

The Statute of Limitations prescribed in CPLR 213 (subd 2) began to run on completion of the actual physical work even though incidental matters relating to the project remained open (State of New York v Lundin, 60 NY2d 987). It was alleged in the city’s moving papers, with documentation, that the project was substantially completed on September 28, 1971. Supreme Court agreed. In some instances the counter proof tendered by a plaintiff might call for an immediate trial of a factual dispute as to when the cause of action alleged in the complaint accrued as prerequisite to a determination whether it was time barred (CPLR 3211, subd [c]). In the present case, however, plaintiff’s submission is insufficient to raise any material question of fact on the issue. Examination of the punch list work directed in the letter of the acting engineer dated October 13, 1971 discloses only incidental items and no proof that actual construction had not already been completed, and the affidavit of the contractor’s president relating to the subsequent preparation of the final payment voucher, cites only work on a single door frame. Accordingly, the present action, commenced on January 17,1978, was time barred.

Chief Judge Cooke

(dissenting in part). I cannot agree that plaintiff’s complaint should be dismissed in its entirety. Under one of plaintiff’s causes of action, given the terms of the contract and the parties’ actions insofar as reflected in the record, plaintiff suffered no injury until defendant determined that it would not pay all of the money requested by plaintiff. Therefore, I respectfully dissent.

In April, 1967, plaintiff was awarded a contract to build an ice skating rink at Clove Lake Park in Staten Island. This was not a fixed-sum contract, however. Instead, defendant used a unit-price contract under which the actual cost was to be determined by defendant after construction was completed. For various reasons, plaintiff was not able to present the premises for a final inspection until September 28, 1971. It is undisputed that, to some extent, the delay in completion is attributable to defendant.

Final payment was to proceed by plaintiff’s submitting a requisition for approval. Once defendant, through its engineer, determined the amount to be paid, a final voucher was to be certified, approved and filed, whereupon plaintiff would be paid. For reasons not apparent from the record or the briefs, the final requisition was not approved until late 1977.

This action was commenced in January, 1978. The complaint pleads four causes of action. The first cause alleges that, by reason of defendant’s change orders, plaintiff was required to provide extra materials subject to the unit-price computations and that it had been underpaid $164,572.38. The second cause of action seeks to recover $132,896.69 for the reasonable value of additional work that was required by defendant’s modifications and other conduct. The third claims losses of $935,352.77 in that defendant caused the project’s delay and thereby caused plaintiff to expend additional sums for labor and overhead, as well as restricting its bondability and available working capital. Lastly, plaintiff pleaded that defendant’s conduct constituted a total breach so as to vitiate the contract and entitle plaintiff to recover in quantum meruit, with the balance due being $1,134,609.91.

Defendant answered and asserted that the action was barred by the Statute of Limitations. Both courts below denied a motion to dismiss the complaint.

A cause of action in contract accrues and the Statute of Limitations begins to run when a breach occurs (Kassner & Co. v City of New York, 46 NY2d 544, 550). Generally, when a party is suing for payment, the action accrues when the right to final payment becomes unconditional (see id.). As a corollary, the Statute of Limitations begins to run when an injury occurs so that the party knows that a suit may be brought, although the full amount of damages may not be known at the time (see Martin v Dierck Equip. Co., 43 NY2d 583, 591).

In pleading the Statute of Limitations, a defendant raises an affirmative defense on which it has the burden of proof (see Goncalves v Regent Int. Hotels, 58 NY2d 206, 217; Manion v Pan Amer. World Airways, 55 NY2d 398, 405; Matter of Davis v Kingsbury, 27 NY2d 567, 571 [Breitel, J., dissenting]; Wechsler v Bowman, 285 NY 284, 295). Applied in the present context, this requires showing that plaintiff had a right to sue more than six years before it commenced this action. Put another way, defendant must establish that the right plaintiff seeks to enforce became unconditional and defendant refused to perform as promised at some time more than six years before this suit was instituted.

Plaintiff’s third and fourth causes of action should be dismissed as time barred. The rights that plaintiff seeks to enforce in the last two causes of action were violated, if at all, by September 28, 1971, when plaintiff had substantially performed the contract. The “payments” plaintiff seeks there were not subject to any condition before they became “due”. The injuries claimed were complete, and plaintiff could have sued that very day.

The second cause of action, to recover for additional work, is problematic. Plaintiff’s right to payment under the unit-cost contract was subject to audit, so that a breach by defendant in making final payment would not occur until it informed plaintiff of the results of that audit (see Kassner & Co. v City of New York, 46 NY2d 544, 550, supra). As pleaded, however, these costs are also being sought on a theory which is independent of defendant’s auditing procedure. Consequently, plaintiff’s right to payment was unconditional at the time it completed construction and the Statute of Limitations began to run at that time. Thus, this cause should be dismissed.

Plaintiff’s first cause of action, however, is a different matter. Essentially, it seeks recovery for the extra work required by the change orders and for which compensation was sought in the final requisition. By the terms of the contract, plaintiff had no right to final payment until defendant calculated and audited the unit-cost of the claimed items. This was not completed until late 1977. The record is devoid of any evidence indicating that plaintiff was solely to blame, if at all, for this delay. Having submitted its requisition, plaintiff could not know of any injury until defendant rejected all or part of the amount sought. Indeed, plaintiff had no injury until defendant did refuse to pay some of the items claimed. Defendant, therefore, failed to sustain its burden of proving that plaintiff’s first cause is time barred.

The majority relies on State of New York v Lundin (60 NY2d 987) for the proposition that plaintiff’s cause of action arose when it had performed the contract by substantially completing construction (majority opn, p 951). This application overlooks that, at that point, no breach had occurred because defendant had not yet refused to pay the money requested. The critical inquiry is: When did a defendant substantially complete its performance so that a breach has ripened into an enforceable action? In Lundin, where an action was brought against the contractor for defective construction, the cause accrued when the contractor declared the work complete. Here, where the action is against the owner for payment, no cause accrued until the owner refused to pay all that was requested. The substantial performance at issue is not that of plaintiff, but of defendant. And defendant did not substantially perform its obligations until it completed its audit , of plaintiff’s final requisition. o

Nor is the majority’s distinction (majority opn, p 951) between a suit on “liability * * * arising out of the contract” and one for “nonperformance of payment” understood. The majority apparently proceeds on the theory that there is a difference in suing for breach of contract and on presenting a claim arising under the contract (p 951, n 2). No matter how one phrases the description, the gravamen of any contract action is that one party claims that it is owed certain obligations because of the agreement and that the other party has not performed those obligations. No one can successfully prosecute a “claim arising under the contract” unless the other party has committed a “breach of contract.” In short, the purported distinction does not exist.

Accordingly, the order of the Appellate Division should be modified, without costs, by striking plaintiff’s second, third, and fourth causes of action for the reasons stated above, and as so modified, affirmed. The question certified should be answered in the negative.

Judges Jasen, Jones, Meyer and Kaye concur; Chief Judge Cooke dissents in part and votes to modify by dismissing the plaintiff’s second, third and fourth causes of action in an opinion in which Judge Wachtler concurs; Judge Simons taking no part.

Order reversed, with costs, plaintiff’s motion to strike the tenth defense denied and defendant’s motion to dismiss the action granted in a memorandum. Question certified answered in the negative.

      . Article 53 provided in pertinent part:
      “article 53. claims and actions thereon. No claim against the City for damages for breach of contract or compensation for extra work shall be made or asserted in any action or proceeding at law or in equity, unless the Contractor shall have strictly complied with all requirements relating to the giving of notice and of information with respect to such claims all as hereinbefore provided.
      “Nor shall any such action or proceeding be instituted or maintained on any such claims unless such action or proceeding be commenced within one year after the date of the filing in the office of the Comptroller of the final payment voucher pursuant to Article 42”.
      This section contains no prescription with reference to the time of accrual of claims arising under the contract.

      . In response to the dissent it may be noted that plaintiff’s first cause of action is not for payment of moneys to which the contractor was entitled under the terms of change orders executed by the parties, entitlement to which would, of course, be subject to audit by the city. The first cause of action rather seeks to recover damages, over and above the amounts fixed in change orders executed by the parties, allegedly sustained in consequence of additional work occasioned by the change orders. Accordingly, this cause of action, too, accrued on completion of the physical work.


text:
    Jeffrey Schwartz, Appellant, v New York State Thruway Authority, Respondent.
    (Claim No. 62817.)
    Argued February 23, 1984;
    decided March 22, 1984

      APPEARANCES OF COUNSEL

      Richard J. Madison for appellant.

      Robert Abrams, Attorney-General (.Michael S. Buskus and Peter H. Schiff of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

The guiderail that was installed met the relevant design standards in effect at the time of its construction. Claimant asserts that it should have been extended an additional 11 feet. This was a planning decision which, if made, would only have involved giving “ ‘the public more complete protection’ ” (Weiss v Fote, 7 NY2d 579, 584). Consequently, liability will not be imposed upon the Authority for failing to build a longer guiderail.

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 Ruben Collazo, Appellant, v State Division of Human Rights et al., Respondents.
    Submitted February 21, 1984;
    decided March 22, 1984

      APPEARANCES OF COUNSEL

      Ruben Collazo, appellant pro se.

      Michael R. Treanor for Academic Press, Inc., respondent.
   opinion of the court

Order affirmed, with costs. We agree with the majority at the Appellate Division that the record supports the commission’s determination that the respondent did not discriminate against the petitioner because of his national origin and/or marital status.

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


text:
    In the Matter of Johnson Newspaper Corporation, Doing Business as Watertown Daily Times, Respondent, v Francis P. Stainkamp, as Deputy Superintendent of the New York State Police, et al., Appellants.
    Argued February 20, 1984;
    decided March 22, 1984

      APPEARANCES OF COUNSEL

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

      S. Paul Battaglia for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs to respondent, to exempt from the permitted inspection any records which have been sealed pursuant to the provisions of CPL 160.50, and, as so modified, affirmed.

We agree with the Appellate Division that, subject to the modification, respondent is entitled to the relief granted by that court, and we do so for the reasons stated in its memorandum opinion (94 AD2d 825). Appellant, for the first time in our court, raises contentions under CPL 160.50 which, for that reason, would not normally be available to it. Inasmuch, however, as the rights of third parties not now before us are implicated we modify the order of the Appellate Division to exempt from the records permitted to be examined, any records which have been sealed pursuant to the provisions of CPL 160.50 (see Public Officers Law, § 87, subd 2, par [a]). In so doing we are not to be understood as addressing or deciding whether the provisions of CPL 160.50 are applicable to traffic tickets or to lists of violations of the Vehicle and Traffic Law; the validity of any sealing orders under CPL 160.50 is not within the scope of our review in this proceeding.

There is no merit to the assertion advanced in our court but not addressed in the memorandum opinion of the Appellate Division that the records permitted to be examined were not within respondent’s request. Although perhaps not precisely described in the request by exact nomenclature as to form, the records described in the order of the Appellate Division fall well within the scope of the request.

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

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


text:
    Christopher G. Snyder, Respondent, v Jac Kramer et al., Appellants, et al., Defendants.
    Argued February 22, 1984;
    decided March 22, 1984

      APPEARANCES OF COUNSEL

      Robert E. Netter for Jac Kramer, appellant.

      Robert F. Winne for Bridget Sweeney, appellant.

      Joel R. Appelbaurri for Rawhide Ranch, Inc., appellant.

      H. Clark Bell and Joseph L. Canino for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (94 AD2d 860) (see, also, Restatement, Torts 2d, § 294, Comment a).

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


text:
    The People of the State of New York, Appellant, v Jeffrey Hampton, Respondent.
    Argued February 21, 1984;
    decided March 22, 1984

      APPEARANCES OF COUNSEL

      Mario Merola, District Attorney (Jeremy Gutman and Peter D. Coddington of counsel), for appellant.

      Henry Winestine and William E. Hellerstein for respondent.
   OPINION OF THE COURT

Memorandum..

The order of the Appellate Division should be affirmed.

The trial court charged the jury that if it found that either defendant did not act in concert with the other then it must acquit both defendants. When the jury found defendant Coley not guilty and the defendant Hampton guilty the verdict was clearly repugnant under the court’s charge.

The determination as to the repugnancy of the verdict is made solely on the basis of the trial court’s charge and not on the correctness of those instructions (People v Tucker, 55 NY2d 1). Because an examination of the instructions given to the jury in this case shows that the verdict returned was inherently contradictory, the trial court properly dismissed the charge against the defendant (People v Carbonell, 40 NY2d 948).

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

Order affirmed in a memorandum.


text:
    In the Matter of the Arbitration between Security and Law Enforcement Employees, District Council 82, American Federation of State, County and Municipal Employees, AFL-CIO, et al., Respondents, and County of Albany et al., Appellants.
    Argued February 23, 1984;
    decided March 22, 1984

      APPEARANCES OF COUNSEL

      Robert G. Lyman, County Attorney (.David M. Purcell of counsel), for appellants.

      Brian J. O'Donnell for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum of the Appellate Division (96 AD2d 976).

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


text:
    Ethan Robbins, Respondent, v Daniel Panitz et al., Appellants, et al., Defendants.
    Argued February 16, 1984;
    decided March 22, 1984

      APPEARANCES OF COUNSEL

      Claude Castro for Daniel Panitz, appellant.

      Alexander Finer for Eric Katz, appellant.

      George L. Santangelo for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division insofar as appealed from should be reversed and the complaint dismissed, with costs.

The Trial Judge awarded plaintiff judgment against the individual defendants and two corporations for $39,000 as the value of plaintiff’s one-third interest in the corporations and $31,200 as salary to which plaintiff would have been entitled during the 52 weeks following his discharge, and otherwise dismissed the complaint. The individual defendants appeal pursuant to our leave.

The salary award against the individuals cannot stand because the proof establishes no more than an employment by the corporation. Nor, although there was a motion to conform the pleadings to the proof at the end of the trial, can the salary award be sustained on the theory of interference with contractual relations. A corporate officer is not personally liable for causing the corporation to terminate an employment contract “unless his activity involves individual separate tortious acts” (A. S. Rampell, Inc. v Hyster Co., 3 NY2d 369, 378; accord Murtha v Yonkers Child Care Assn., 45 NY2d 913). The Trial Judge held these defendants liable notwithstanding his conclusion that whether plaintiff was discharged for cause was irrelevant.

Equally infirm is the award for the value of plaintiff’s interest in the corporation. The predicate for the award was that defendants had offered to buy out plaintiff but no agreement as to the value of his interest had been reached. There thus having been no agreement reached, there was no contract basis for the award made. Nor did sections 1104-a and 1118 of the Business Corporation Law authorize determination of value by the Trial Judge. Those sections authorize a determination of value only in an action for dissolution of the corporation. No such cause of action was involved in the present action.

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

Order insofar as appealed from reversed, with costs, and complaint dismissed as against defendants-appellants in a memorandum.


text:
    The People of the State of New York, Appellant, v Eddie Lee King, Respondent.
    Argued February 21, 1984;
    decided March 22, 1984

      APPEARANCES OF COUNSEL

      Elizabeth Holtzman, District Attorney {Brian D. Foley and Barbara D. Underwood of counsel), for appellant.

      Philip L. Weinstein and William E. Hellerstein for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The Trial Judge found that defendant’s cotenant consented to the entry of the detectives into the apartment but that neither she nor anyone else consented to their entry into defendant’s bedroom. That finding, having been implicitly affirmed by the Appellate Division’s memorandum, is beyond our power of review (People v Volpe, 60 NY2d 803; People v Martin, 50 NY2d 1029, 1032).

Defendant’s arrest having been illegal, the question whether his statement made at the precinct station within three hours thereafter was the fruit of the illegal arrest presented a mixed question of law and fact, which is also beyond our power to review (People v Harrison, 57 NY2d 470; see Brown v Illinois, 422 US 590; People v Matos, 93 AD2d 772; 3 LaFave, Search and Seizure, § 11.4, p 256, 1984 Pocket Part).

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Andre Fenner, Appellant.
    Argued February 22, 1984;
    decided March 22, 1984

      APPEARANCES OF COUNSEL

      Allen E. Burns and William E. Hellerstein for appellant.

      Elizabeth Holtzman, District Attorney (.Michael Gore and Barbara D. Underwood of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The number of shots fired, the number of persons fired at and the fact that they were running toward the door of the poolroom in an effort to get away from defendant, though not as egregious circumstances as those involved in People v Register (60 NY2d 270), were sufficient to present a question for the jury concerning whether defendant evinced “a depraved indifference to human life” (Penal Law, § 125.25, subd 2). Moreover, the jury was charged that depraved indifference to human life required that they find defendant’s “conduct, beyond being reckless * * * so wanton, so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy as to warrant the same criminal liability as that which the law imposes upon a person who intentionally causes the death of another.” The evidence being sufficient and the charge proper, the conviction on this count must stand.

The argument that defendant’s statements should have been suppressed because the reliability of the information obtained from a citizen informant had not been established by calling Officer Gatti, who received the information and passed it on to the arresting officer, has not been preserved for our review. Reliability was not put in issue either in defendant’s motion papers or during the hearing, the peripheral reference during argument at thg end of the hearing to the absence of Officer Gatti as a witness being insufficient (People v Weston, 56 NY2d 844; People v Jenkins, 47 NY2d 722).

We have considered the other issues argued by defendant and find them to be either without merit or not sufficiently preserved.

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

Order affirmed in a memorandum.


text:
    In the Matter of Viola Sommer, Doing Business as ETE Co., Appellant, v New York City Conciliation and Appeals Board, Respondent.
    Argued February 21, 1984;
    decided March 22, 1984

      APPEARANCES OF COUNSEL

      Sherwin Belkin, Gary M. Rosenberg, Nicholas Kamillatos and Mitchell J. Baker for appellant.

      Mary Ellen Cronly and Ellis S. Franke for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Justice Max Bloom at the Appellate Division (93 AD2d 481).

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


text:
    In the Matter of Cale Development Co., Inc., et al., Appellants, v Conciliation and Appeals Board et al., Respondents.
    Argued February 21, 1984;
    decided March 22, 1984

      APPEARANCES OF COUNSEL

      Anthony Napolitano and Jon Michael Probstein for appellants.

      Cullen S. McVoy, Ellis S. Franke and Mary Ellen Cronly for Conciliation and Appeals Board, respondent.

      Stanley M. Ackert, III, for Daniel Gersen, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed for the reasons stated in the opinion of Justice Sullivan (94 AD2d 229). We also note that the Board found that the actual occupants of the apartment under the lease were Robert J. Castle and his wife and that the apartment was not their primary residence. That being so, Michael Castle, their son, had no right to renewal of the lease based upon section 235-f of the Real Property Law (L 1983, ch 403).

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

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Maxie Lambert, Appellant.
    Argued February 20, 1984;
    decided March 22, 1984

      APPEARANCES OF COUNSEL

      Rebecca A. Schenk and Stephen J. Pittari for appellant.

      Carl A. Vergari, District Attorney (Maryanne Luciano, Gerald D. Reilly and Anthony J. Servino of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed for reasons stated in the memorandum at the Appellate Division (92 AD2d 550).

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


text:
    In the Matter of Franklin Mint Corporation, Appellant, v James H. Tully, Jr., et al., Constituting the Tax Commission of the State of New York, Respondents.
    Decided March 22, 1984

      APPEARANCES OF COUNSEL

      Lisa D. Filloramo, P. J. Di Quinzio and Joseph D. Holston, Jr., for appellant.

      Robert Abrams, Attorney-General (.Peter H. Schiff and Wayne L. Benjamin of counsel), 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), judgment affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (94 AD2d 877).

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


text:
    The People of the State of New York, Appellant, v Frank Cable and Denise Godbee, Respondents.
    Submitted March 12, 1984;
    decided March 22, 1984
   Motion by defendant Godbee to dismiss appeal denied.


text:
    Shao Fen Chin, Appellant, v Basil Moumgis et al., Respondents.
    Submitted February 27, 1984;
    decided March 22, 1984
   On the court’s own motion, appeal dismissed, without costs, upon the ground that it does not lie as of right from the Appellate Division unanimous order of affirmance, absent the direct involvement of a substantial constitutional question. Motion to waive strict compliance with the Rules of Practice dismissed as academic.

Judge Meyer taking no part.


text:
    In the Matter of the Dissolution of Kemp & Beatley, Inc., Appellant. Seymour Gardstein et al., Respondents.
    Submitted March 5, 1984;
    decided March 22, 1984
   Motion for a stay granted to the extent only of staying enforcement of the order of the Appellate Division pending determination of the appeal.


text:
    In the Matter of Robert I. Hodes, an Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted March 12, 1984;
    decided March 22, 1984
   Motion, insofar as it seeks leave to appeal from the December 8, 1983 order of disbarment, denied. Motion, insofar as it seeks leave to appeal from the February 9, 1984 order denying a motion for a stay, dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Bobbie H. Holmes, Respondent, v John D. Simpson, Individually and as President of the New York City Transit Authority, Appellant.
    Submitted February 20, 1984;
    decided March 22, 1984
   Motion to dismiss the appeal denied.


text:
    Islamic Republic of Iran, Appellant-Respondent, v Farah Diba Pahlavi, Respondent-Appellant, et al., Defendant.
    Submitted March 19, 1984;
    decided March 22, 1984
   Motion to dismiss cross appeal granted and cross appeal dismissed upon the ground that respondent-appellant is not a party aggrieved (CPLR 5511). Motion to strike portions of respondent’s brief denied (CPLR 5501, subd [a], par 1). Appellant-respondent’s reply brief, if any, is to be served and filed on or before April 2, 1984.


text:
    In the Matter of the Guardianship and Custody of Alexander L., an Infant. Bienvenida L., Appellant; Cardinal McCloskey Children and Family Services, Respondent.
    Submitted March 5, 1984;
    decided March 22, 1984
   Motion for clarification denied. [See 60 NY2d 329.]


text:
    In the Matter of L. Robert Leisner, Appellant, v Victor S. Bahou, as President of the New York State Civil Service Commission, et al., Respondents.
    Decided March 22, 1984
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order of the Appellate Division appealed from, insofar as it pertains to vacatur of the stipulation of settlement and the claim for damages against respondent Bonk, does not finally determine the proceeding within the meaning of the Constitution, and upon the further grounds that no substantial constitutional question is directly involved on the appeal from the remaining portions of the Appellate Division order, and appellant is not aggrieved by the modification at the Appellate Division.


text:
    George Sassower, Petitioner, v John P. Finnerty, as Sheriff of Suffolk County, Respondent. (Action No. 1.) The People of the State of New York ex rel. George Sassower, Appellant, v Sheriff of Suffolk County, Respondent. (Action No. 2.) George Sassower, Appellant, v Ernest L. Signorelli et al., Respondents, et al., Defendants. (Action No. 3.)
    Submitted March 5, 1984;
    decided March 22, 1984
    [See 61 NY2d 756.]
   Motion for leave to appeal in action No. 3 denied.


text:
    In the Matter of Louise Scalera, as Coexecutor of Dominick Scalera, Deceased, Respondent. S & S Carting Co., Inc., et al., Appellants.
    Submitted February 27, 1984;
    decided March 22, 1984
   Motion for leave to appeal denied as unnecessary (Dalrymple v Shults Chevrolet, 39 NY2d 795). Motion, treated as one to amend the notice of appeal, granted and the notice of appeal amended to provide for appeal from each and every part of the judgment seeking review of each and every part of the prior order of the Appellate Division.


text:
    Lily Bardavid et al., Appellants, v New York City Transit Authority, Respondent.
    Decided March 27, 1984

      APPEARANCES OF COUNSEL

      Seymour I. Cohen and Norman H. Cohen for appellants.

      Lawrence Heisler and Richard K. Bernard for respondent.
   OPINION OF’THE COURT

Memorandum.

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

The Transit Authority owes no duty to protect a person on its premises from assault by a third person absent facts establishing a special relationship between the Authority and the person assaulted (Weiner v Metropolitan Transp. Auth., 55 NY2d 175). By installing an electric sign to inform prospective passengers of the arrival of the elevator to take them down to the subway platform, the Transit Authority assumed no special duty to plaintiff; moreover, plaintiff’s descent into the alcove giving access to the elevator with knowledge that the electric sign was not then working precludes any claim of reliance on the sign by her (cf. De Long v County of Erie, 60 NY2d 296). The uncontroverted facts in the present case clearly establish that no special duty had been created. Unlike the situation in De Long (supra), the Transit Authority gave no affirmative personal assurance to plaintiff, and she did not rely detrimentally on the service that had been made generally available. Accordingly, defendant’s motion for summary judgment was properly granted.

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 the Claim of Robert A. Horton, Appellant. Molecular Maintenance, Inc., Respondent. Lillian Roberts, as Commissioner of Labor, Appellant.
    Decided March 27, 1984

      APPEARANCES OF COUNSEL

      James W. Cooper for Robert A. Horton, appellant.

      Robert Abrams, Attorney-General (Iris Steel of counsel), for Lillian Roberts, as Commissioner of Labor, appellant.

      David L. Murphy 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 reversed, with costs, for the reasons stated in the dissenting memorandum by Justice John T. Casey at the Appellate Division (97 AD2d 610, 612) and decision of the Unemployment Insurance Appeal Board reinstated.

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


text:
    Estella C. Ball, Appellant, v State of New York, Respondent. Brian Ball, Appellant, v State of New York, Respondent. Harry E. Ball, Appellant, v State of New York, Respondent.
    (Appeal No. 1.) (Claim No. 62167.)
    (Appeal No. 2.) (Claim No. 62168.)
    (Appeal No. 3.) (Claim No. 62169.) (And One Additional Appeal.)
    Decided March 27, 1984

      APPEARANCES OF COUNSEL

      John J. Keigher for appellants.

      Robert Abrams, Attorney-General (Peter J. Dooley and Peter H. Schiff of counsel), 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), orders of reversal affirmed, with costs, for the reasons stated in the memoranda at the Appellate Division (96 AD2d 1139, 1140). The Appellate Division order dismissing claimant’s appeal from the nonfinal Court of Claims order dated September 27, 1982 is treated as one of affirmance (see, e.g., Matter of Town of Islip [Mascioli], 49 NY2d 354, 358, n 1); and the appeal from that order is dismissed upon the ground that the order does not finally determine the action within the meaning of the Constitution.

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


text:
    The People of the State of New York, Respondent, v Mark A. Quarantillo, Appellant.
    Decided March 27, 1984

      APPEARANCES OF COUNSEL

      Samual J. Civiletto for appellant.

      Peter L. Broderick, District Attorney {James P. Hewitt, III, of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of County Court, Niagara County, should be reversed and the simplified traffic information dismissed.

Defendant was convicted of overtaking and passing a school bus (Vehicle and Traffic Law, § 1174, subd [a]), upon proof that he failed to stop behind a school bus which had stopped and was discharging passengers. Although there was sufficient evidence from which the trier of fact could conclude that a red visual signal was in operation at the time defendant passed the bus, the record is entirely devoid of proof that the school bus was in compliance with subdivision 20 of section 375 of the Vehicle and Traffic Law, as is specifically required by the statute pursuant to which defendant was convicted. Particularly, and as pointed out by defendant at the close of the People’s case, there was no proof that the vehicle bore the required signs, identifying it as a school bus, painted on the proper color background. Accordingly, the People have failed in their burden of proving each and every element of the offense charged (CPL 70.20; People v Brown, 25 NY2d 374, 377).

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 reversed and simplified traffic information dismissed in a memorandum.


text:
    Gloria Frank, Appellant, v Liberty Mutual Insurance Company, Respondent.
    Decided March 27, 1984

      APPEARANCES OF COUNSEL

      Donald B. Knight for appellant.

      Douglas A. Boeckmann 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 memorandum of the Appellate Division (98 AD2d 611).

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


text:
    Jennifer A. Davidoff, an Infant, by Her Father and Natural Guardian, Richard S. Davidoff, et al., Appellants, v Metropolitan Baseball Club, Inc., et al., Respondents.
    Argued February 14, 1984;
    decided March 27, 1984

      APPEARANCES OF COUNSEL

      Emilio Nunez, Harry H. Lipsig, Pamela Anagnos Liapakis and Howard Goldstein for appellants.

      Jeffrey Silberfeld for Metropolitan Baseball Club, Inc., respondent.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Pamela Seider Dolgow and Ronald E. Sternberg of counsel), for City of New York, respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff, a 14-year-old girl, was watching a professional baseball game at Shea Stadium from a box seat behind first base, separated from the playing field only by a three-foot fence. At a moment when her attention was diverted from the game, she was struck by a sharply hit foul ball and sustained serious injuries including the loss of vision in one eye. Plaintiff brought this negligence action against the City of New York (owner of Shea Stadium) and the Metropolitan Baseball Club, Inc. (its lessee). The Appellate Division, in reversing Special Term, granted defendants’ motions for summary judgment and dismissed the complaint. We now affirm.

Claims involving injuries sustained by spectators from misdirected baseballs were traditionally decided — and dismissed — on the ground of assumption of risk. However, with the enactment of CPLR 1411 in 1975, the absolute defense was no longer applicable and it became necessary to define the duty of care owed by a proprietor of a baseball field to its spectators. This we did, not even three years ago, in Akins v Glens Falls City School Dist. (53 NY2d 325, 331): “[W]here a proprietor of a ball park furnishes screening for the area of the field behind home plate where the danger of being struck by a ball is greatest and that screening is of sufficient extent to provide adequate protection for as many spectators as may reasonably be expected to desire such seating in the course of an ordinary game, the proprietor fulfills the duty of care imposed by law and, therefore, cannot be liable in negligence.” Here, there has been no showing by plaintiff that (1) defendants failed to erect a screen behind home plate providing adequate protection in that area, and (2) there are not sufficient seats behind the screen to accommodate as many spectators as reasonably may be expected to desire such seating. No evidence that the screen was inadequate was presented, and it is undisputed that there were unoccupied seats behind the screen at Shea on the day plaintiff was injured.

Plaintiff nonetheless argues that Akins should not bar her cause of action because she was given an assigned seat in an unscreened area in which there had been prior spectator injuries, and that a jury question is presented “where the inadequacy of the screening at the point of injury is put in issue.” This is a mischaracterization of Akins, where we held only that a jury question may be presented “where the adequacy of the screening in terms of protecting the area behind home plate properly is put in issue.” (Akins v Glens Falls City School Dist., 53 NY2d 325, 331, supra.) The rule suggested by plaintiff would require a baseball field proprietor to operate as an insurer of spectators unless there was a protective screen shielding every seat. We held in Akins that a proprietor should be allowed to satisfy the desires of the many spectators who prefer to view the game from a seat unobstructed by fences or protective screening. No sound reason has been shown why the rule of policy set forth in Akins should be changed.

Chief Judge Cooke (dissenting). When this court, in Akins v Glens Falls City School Dist. (53 NY2d 325), established a per se rule governing the duty of care owed by a baseball field proprietor, the dissent found the creation of such rules to be without foundation in the jurisprudence of landowner liability followed by this court since Basso v Miller (40 NY2d 233) was decided and since a system of comparative negligence (see CPLR 1411) was enacted by the Legislature (see Akins v Glens Falls City School Dist., supra, at pp 333-337 [Cooke, Ch. J., dissenting]). In this appeal, even the per se rule is applied without consideration of its underlying rationale. Therefore, I respectfully dissent.

In Akins, the court considered whether the owner of a lot used as a baseball field by a high school team breached any duty owed a spectator who, standing in foul territory along the third-base line, was struck by a line-drive foul ball. Reasoning that “an owner of a baseball field is not an insurer of the safety of its spectators” (at p 329), and that “many spectators prefer to sit where their view of the game is unobstructed by fences or protective netting” (at p 330), the court announced a two-part rule that governs the duty a ball park proprietor owes spectators. It was held, and has been restated in this case, that when “a proprietor of a ball park furnishes screening for the area of the field behind home plate where the danger of being struck by a ball is the greatest and that screening is of sufficient extent to provide adequate protection for as many spectators as may reasonably be expected to desire such seating in the course of an ordinary game, the proprietor fulfills the duty of care imposed by law” (53 NY2d, at pp 329-331).

Presumably, the rationale underlying this rule was to insulate baseball field owners from liability while allowing a maximum number of seats with unobstructed views by permitting spectators to recover for their injuries only if they were sitting in an area of the grandstands which exposed them to an extraordinary risk of injury and for which no screening or other protection was provided. Those spectators who are injured when sitting in some other area will not be permitted any recovery so long as there exists at least one seat unfilled in a protected area. It is presumed under the Akins rule that the spectator has no one but himself or herself to blame for the injury because, if truly concerned with the risk, he or she could have moved to the one unoccupied seat.

Applying these principles to the case at bar indicates that the complaint should not have been dismissed. Here, plaintiff was sitting in a first-row box seat directly behind first base. All that separated her from the playing field was a three-foot high fence. It is clear that, if the duty of the proprietor to provide protective screening depends on the presence of an extraordinary risk of injury to a fan caused by a foul ball or a wild throw, no meaningful legal distinction can be drawn between the fan protected by screening but sitting at the perimeter of the screen and the fan sitting in the front row, 20, 30 or even 90 feet up the baseline. It cannot be said as a matter of law that plaintiff here was exposed to any less of a risk than that experienced by a spectator sitting 20 rows behind home plate, where a protective screen is required.

If the court’s concern is to provide all fans with an unobstructed view of the game, an inquiry should be made as to the extent of the obstruction if fans in the first rows were protected from line drives. Similarly, it cannot be assumed that, if informed of an unusually high incidence of injuries to spectators in a particular seating area, all or most fans would opt for no increased protection rather than an accommodation of the interests in having a clear view and safety from foul balls.

In this case, limiting the area to be protected to that area behind home plate does nothing more than to artificially limit the liability of ball park owners. Moreover, it is difficult to understand what policy, other than the one just mentioned, is advanced in this case by exculpating the defendants from liability merely because one or more seats were unoccupied in the protected area behind home plate. This concept may be relevant in the setting of a ball field located in a sandlot where all who desire to assemble around a chain-link backstop may do so. It is utterly out of place when the setting is a major sports stadium where, rather than a general admission arrangement, all seats are individually assigned or allocated to a specific area. Certainly, there is no policy at a major league stadium that would permit any and all spectators sitting in areas other than behind home plate, at any point in the game, to switch seats to those located in the “choice” area behind home plate. But surely, under the Akins doctrine, the management would have to provide such seats or be exposed to liability in the event that the fan is injured. The only alternative is to hold that a fan who is unable to secure a seat behind home plate must go home or fully assume responsibility for any consequences of remaining at the ball park no matter how unreasonable the risk of injury.

Because I cannot subscribe to such a rule and because I believe that the plaintiff should be permitted her day in court to show that, under the circumstances, reasonable care dictated that defendants should have provided more protection to spectators sitting where plaintiff was injured, I would reverse the order of the Appellate Division and reinstate the complaint.

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

Order affirmed, with costs, in a memorandum.


author: Jasen, J.

text:
    In the Matter of Civil Service Employees Association, Inc., et al., Respondents, v Harold R. Newman, as Chairman of the Public Employment Relations Board of the State of New York, et al., Respondents, and Clifton R. Wharton, Jr., as Chancellor of the State University of New York, et al., Appellants.
    Argued February 14, 1984;
    decided March 27, 1984

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General {John Q. Driscoll and Peter H. Schiff of counsel), for appellants.

      Jerome Thier and Martin L. Barr for Harold R. Newman, as Chairman of the Public Employment Relations Board and others, respondents.

      Marjorie E. Karowe for Civil Service Employees Association, Inc., respondent.

      James R. Sandner and Susan Bloom Jones for Public Employees Federation, respondent.
   OPINION OF THE COURT

Determination appealed from and order of the Appellate Division brought up for review affirmed, with costs, for reasons stated in the memorandum of the Appellate Division (88 AD2d 685).

Concur: Chief Judge Cooke and Judges Wachtler, Meyer, Simons and Kaye. Judge Jasen dissents and votes to reverse in an opinion in which Judge Jones concurs.

Jasen, J.

(dissenting). The question presented on this appeal is whether the July 15, 1980 determination of the Public Employment Relations Board (PERB) has a rational basis and was supported by substantial evidence. I would hold that it does and, therefore, would reverse the order of the Appellate Division and reinstate the original determination of PERB.

The scope of the court’s review of PERB’s interpretation of the actions taken or not taken by CSEA on the “directed absence” issue, and the inferences to be drawn from such failure to take action, is a limited one. (Matter of Incorporated Vil. of Lynbrook v New York State Public Employment Relations Bd., 48 NY2d 398.)

Simply stated, unless the Board’s determination was “affected by an error of law”, a claim not made by petitioners, was “arbitrary and capricious” or was not supported by substantial evidence, we will not interfere. (CPLR 7803, subds 3, 4.) “So long as PERB’s interpretation is legally permissible and so long as there is no breach of constitutional rights and protections, the courts have no power to substitute another interpretation”. (Matter of West Ironde quoit Teachers Assn. v Helsby, 35 NY2d 46, 50.) “As the agency charged with implementing the fundamental policies of the Taylor Law, [PERB] is presumed to have developed an expertise and judgment that requires us to accept its construction if not unreasonable”. (Matter of Incorporated Vil. of Lynbrook v New York State Public Employment Relations Bd., supra, at p 404.)

How can it be said, as a matter of law, as the majority does, that PERB’s determination was irrational and unsupported by the evidence? The facts are not in dispute — only the inferences to be taken from the facts may be argued, but that is exclusively for the trier of the facts (in this case PERB) — and we cannot disturb their findings unless completely irrational.

Since there clearly was a rational basis for PERB’s determination that the CSEA waived its right to challenge the 1977 and 1978 SUNY directives by failing to request that the “directed absence” policy contained therein be placed on the negotiating table in 1977 and 1978 even though the union was well aware that the policy had been and would continue to be enforced, the determination should be reinstated. The reasonableness of PERB’s determination becomes even clearer when viewed as part of the continuous union-SUNY negotiating process. In 1976, the CSEA sought to negotiate an end to SUNY’s “directed absence” policy contained in its 1976 directive, but was unable to do so. Thereafter, when the union sought to challenge that policy, PERB determined that the union had waived its right to do so. This court today unanimously agrees that that determination was rationally based. The majority, however, also holds PERB’s determination that the union similarly waived its right to challenge the 1977 and 1978 directives to be irrational where the CSEA obviously knew of the “directed absence” policy and had been advised by SUNY officials that it was to continue, yet never challenged it at the bargaining table; indeed, the union never even asked that it be made a subject of negotiation in 1977 and 1978.

Because I believe it was entirely reasonable for PERB to find that the union’s actions constituted a waiver of its right to challenge the 1977 and 1978 directives, I vote to reinstate PERB’s original determination in its entirety.

Determination appealed from and order of Appellate Division brought up for review affirmed, etc.


text:
    In the Matter of Poughkeepsie Newspapers, Inc., Appellant, v Albert M. Rosenblatt, as a Justice of the Supreme Court, et al., Respondents.
    Argued February 21, 1984;
    decided March 27, 1984

      APPEARANCES OF COUNSEL

      Susanna E. Bedell and James E. Nelson for appellant.

      Robert Abrams, Attorney-General (Frederick L. Lieberman, Peter H. Schiff, George D. Zuckerman and Melvyn R. Leventhal of counsel), for Albert M. Rosenblatt, respondent.

      William Stanton, Special Prosecutor (B. Anthony Morosco of counsel), respondent, precluded.

      William M. Kunstler for Lemuel Smith, respondent, precluded.
   OPINION OF THE COURT

Memorandum.

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

This is an article 78 proceeding by petitioner Poughkeepsie Newspapers, Inc., challenging an order of respondent Rosenblatt, Justice of the Supreme Court, excluding the public from a hearing to determine the admissibility of certain evidence in the murder trial of defendant Lemuel Smith. Respondent’s closure order was proper for the reasons stated in the opinion of the Appellate Division (92 AD2d 232). Moreover, the trial court properly considered the interests of the jurors in reaching his determination. The recent decision of the United States Supreme Court in Press-Enterprise Co. v Superior Ct. of Cal. (_US_, 104 S Ct 819) does not require a contrary result. We add only that the Appellate Division did not abuse its discretion by retaining jurisdiction to determine this issue despite the fact that the subject hearing had concluded. (Matter of Westchester Rockland Newspapers v Leggett, 48 NY2d 430, 436-437.)

As neither party has challenged the portion of the Appellate Division’s determination relating to petitioner’s rights to a transcript of the hearing, we do not reach that issue.

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

Judgment affirmed, with costs, in a memorandum.


text:
    In the Matter of Commission on Judicial Conduct of the State of New York, Respondent, v John M. Regan, as Judge of the City Court of the City of Rochester, Petitioner.
    Submitted March 19, 1984;
    decided March 27, 1984
   Motion to direct Commission to file its written determination, etc., dismissed, without costs, and, on the court’s own motion, petition for review dismissed, without costs, each upon the ground that it does not lie (NY Const, art VI, § 22; CPLR 7804, subd [b]).


text:
    The People of the State of New York, Appellant, v Rudolph Gene Testa, Respondent.
    Argued February 17, 1984;
    decided March 29, 1984

      APPEARANCES OF COUNSEL

      Patrick H. Mathews, District Attorney {James P. Maxwell of counsel), for appellant.

      John L. Perticone, Acting Public Defender, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the matter remitted for further proceedings in accordance with this memorandum.

The issue on this appeal is whether the trial court abused its discretion as a matter of law in refusing to set aside the jury’s verdict. This court has declined to fashion any concrete test for assessing claims for improper jury influence. “Because juror misconduct can take many forms, no ironclad rule of decision is possible. In each case the facts must be examined to determine the nature of the material placed before the jury and the likelihood that prejudice would be engendered” (People v Brown, 48 NY2d 388, 394; see People v Pickett, 61 NY2d 773; see, also, People v Lombardo, 61 NY2d 97). Such an examination must be performed with caution, of course, for inquiry into the deliberative process for the purpose of impeaching a verdict should not be undertaken except in extraordinary circumstances (see People v Brown, supra, at p 393).

In the instant case, at a postverdict hearing, the court heard conflicting testimony as to what, transpired during deliberations when the jurors discussed a news report that appellant’s codefendant had pleaded guilty to the same charges on the eve of appellant’s trial, and whether this information had a substantial impact on the eventual verdict. In these circumstances, it cannot be said as a matter of law that the Trial Judge abused his discretion in denying defendant’s motion to set aside the verdict or order a new trial.

Inasmuch as the Appellate Division reached its decision on the law alone, the matter should be remitted to it for its determination of the facts (CPL 470.25, subd 2, par [d]; 470.40, subd 2, par [b]) and the exercise of its discretion (see People v Creech, 60 NY2d 895, 896).

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

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


text:
    In the Matter of Boleslaw Chmielewski, Respondent, v City of New York et al., Appellants. In the Matter of Boleslaw Chmielewski, Respondent, v Triboro Bridge and Tunnel Authority, Appellant.
    Decided March 29, 1984

      APPEARANCES OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel CMiriam Skolnick of counsel), for City of New York, appellant.

      Lewis I. Wolf for Metropolitan Transportation Authority, appellant.

      Stephen A. Weingrad for Triboro Bridge and Tunnel Authority, appellant.

      William Greenberg for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court óf Appeals (22 NYCRR 500.4), order affirmed, with costs. It cannot be said, as a matter of law, that the Appellate Division abused its discretion in granting petitioner’s application to serve late notices of claim.

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


text:
    Brooklyn Hospital, Appellant, v David Axelrod, as Commissioner of Health of the State of New York, et al., Respondents.
    Decided March 29, 1984

      APPEARANCES OF COUNSEL

      Lois D. Thompson for appellant.

      Robert Abrams, Attorney-General (Melvyn R. Leventhal of counsel), for David Axelrod, as Commissioner of Health of the State of New York and others, respondents.

      Robert A. Bicks for Blue Cross and Blue Shield of Greater New York, 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 memorandum at the Appellate Division (97 AD2d 493).

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


text:
    In the Matter of J. Peter Johnson, Appellant, v Board of Trustees of the Middle Island Public Library, Respondent.
    Decided March 29, 1984

      APPEARANCES OF COUNSEL

      Frederic Block for appellant.

      George E. Hughes for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be modified by remitting the matter to Supreme Court, Suffolk County, for the purpose of determining back pay, if any, due petitioner, and, as so modified, affirmed, with costs to respondent.

There is substantial evidence to support the board’s determination sustaining the charges against petitioner of misconduct and incompetence. Furthermore, we agree with the Appellate Division that the sanction of dismissal is not excessive under the circumstances and does not constitute an abuse of discretion (see Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Short v Nassau County Civ. Serv. Comm., 45 NY2d 721).

Respondent concedes that petitioner is entitled to back pay for the period of his suspension exceeding 30 days, offset by earnings from other employment and unemployment benefits and by deductions for periods of delay for which petitioner is responsible (Civil Service Law, § 75, subd 3; Gerber v New York City Housing Auth., 42 NY2d 162, 164-165). Factual issues remain as to whether petitioner is responsible for any delay in the disposition of the charges and as to any earnings petitioner made from other employment or unemployment benefits, and a hearing is therefore necessary.

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), judgment modified, with costs to respondent, and matter remitted to Supreme Court, Suffolk County, for further proceedings in accordance with the memorandum herein and, as so modified, affirmed.


text:
    In the Matter of Monroe County Deputy Sheriff’s Local 2964, Council 82, American Federation of State, County and Municipal Employees, AFL-CIO, Respondent, v County of Monroe et al., Appellants.
    Decided March 29, 1984

      APPEARANCES OF COUNSEL

      Deborah Gerber Farber for appellants.

      Christopher H. Gardner 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 memorandum at the Appellate Division (98 AD2d 982).

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


text:
    In the Matter of the Claim of Edgar L. Hill, Respondent, v Robert E. Thompson et al., Respondents. Workers’ Compensation Board, Appellant.
    Argued February 23, 1984;
    decided March 29, 1984

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Howard B.Friedland, Peter H. Schiff, Carlin Meyer and Reed Brody of counsel), for appellant.

      John James Berry and Robert J. Chojnacki for Uninsured Employers’ Fund, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the decision of the Workers’ Compensation Board reinstated (see 91 AD2d 1082).

The evidence concerning whether the claimant comes within the exclusion from employment status set forth in subdivision 4 of section 2 of the Workers’ Compensation Law is undisputed and the inferences drawn by the Workers’ Compensation Board from these facts are conclusive on the courts if supported by substantial evidence (Matter of Axel v Duffy-Mott Co., 47 NY2d 1, 6). We find substantial evidence before the Board upon which it could base a finding that claimant was not working in a “one family owner-occupied residence” within the meaning of the statutory exclusion even though it was the owner’s intention to convert the house to a one-family residence. The Board could conclude that the conversion process had not yet been completed when claimant was injured. There is also substantial evidence to support the Board’s conclusion that claimant was not performing repair work but rather was engaged in “carpentry work doing paneling”. The Board could find that paneling is not a repair done on walls but constitutes remodeling, regardless of whether the walls have fallen into disrepair.

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

Order reversed, with costs, and decision of the Workers’ Compensation Board reinstated in a memorandum.


text:
    The People of the State of New York, Respondent, v Earl Cox, Appellant.
    Decided March 29, 1984

      APPEARANCES OF COUNSEL

      Richard Ware Levitt for appellant.

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

Memorandum.

The order of the Appellate Division should be reversed, the motion to suppress granted and a new trial ordered.

In the absence of factual findings by the trial court and the Appellate Division that the officers had probable cause to arrest defendant, we cannot say that the search of his duffel bag was lawful. (See People v Gokey, 60 NY2d 309; People v Smith, 59 NY2d 454; cf. People v Harrison, 57 NY2d 470.)

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 reversed, motion to suppress granted and a new trial ordered in a memorandum.


text:
    The People of the State of New York, Appellant, v Edwin Sanchez, Respondent.
    Argued February 23, 1984;
    decided March 29, 1984
    APPEARANCES OF COUNSEL

      Elizabeth Holtzman, District Attorney (Jason L. Shaw, Barbara D. Underwood, Peter Weinstein, Alan Rubenstein and Lucille Dibello of counsel), for appellant.

      Carol A. Zeldin and William E. Hellerstein for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Accused of the strangulation killing of his former girlfriend’s grandmother, respondent admitted to prosecutorial officials that he was present at the victim’s apartment on the night of the murder. Respondent said that he hit the victim twice after she made offensive personal remarks to him. Though his memory of subsequent events was sketchy, respondent did recall leaving the apartment, with the door open, and observing a teen-aged male whom he had seen in the hall earlier.

At trial, the prosecution relied on respondent’s statements as well as other evidence, concededly circumstantial. The trial court denied respondent’s request for a “total circumstantial charge,” stating both that respondent’s statements “take it out of an entire circumstantial case” and that “it is up to the jury how to define the statement.” The court instructed the jury that the People were relying on direct as well as circumstantial evidence. While the court did address the reasoning process to be employed in weighing circumstantial evidence, it did not charge the jury to review the prosecution’s entire case against the rigorous standard applicable when it relies on circumstantial evidence alone.

Respondent’s statements constituted circumstantial, not direct, evidence of guilt. Since the case was submitted to the jury on the theory that the cause of death was strangulation by a telephone wire, the key issue for the jury’s determination was the identity of the strangler. Respondent’s statements may have proved his presence at the scene of the crime close in time to its commission, but the fact of his presence did not establish that he was the strangler. While it may at times be appropriate to leave to the jury the question whether an admission is direct or circumstantial evidence (cf. People v Rumble, 45 NY2d 879), such deference is inappropriate where, as here, the admission cannot be interpreted to establish the act charged. Thus, the evidence against respondent was entirely circumstantial and the trial court erred in refusing to so instruct the jury. Especially in light of the charge that the People relied both on direct and circumstantial evidence, the jury could not have known of its duty to apply the circumstantial evidence standard to the prosecution’s entire case.

Moreover, the circumstantial evidence charge given by the trial court was erroneous. While it is not necessary that the words “moral certainty” be used, when the evidence is circumstantial the jury should be instructed in substance that it must appear that the inference of guilt is the only one that can fairly and reasonably be drawn from the facts, and that the evidence excludes beyond a reasonable doubt every reasonable hypothesis of innocence. (See People v Gonzalez, 54 NY2d 729; People v Morris, 36 NY2d 877; NY CJI 9.05, p 471.)

Particularly in view of the necessity for a retrial, we express our disapproval of the prosecutor’s improper comments during summation. Apart from unduly inflammatory references to brutality and other brutal crimes, the trial assistant recounted the People’s case in the form of a lengthy hypothetical suggesting throughout that members of the jury would be unable to justify a vote of acquittal to their families and friends. Prosecutorial advocacy may not go so far as to threaten that jurors will be censured by the community if they vote to acquit (cf. People v Fielding, 158 NY 542; People v Maurilla, 189 App Div 809, affd 229 NY 600).

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

Order affirmed in a memorandum.


text:
    The People of the State of New York ex rel. Robert Jackson, Appellant, v Stephen Dalsheim, as Superintendent of Downstate Correctional Facility, Respondent.
    Argued February 23, 1984;
    decided March 29, 1984
   Appeal dismissed, without costs, upon the ground that relator has been released from custody and, therefore, he is not entitled to a writ of habeas corpus (People ex rel. Wilder v Markley, 26 NY2d 648).


text:
    In the Matter of Daniel C., an Infant. James N. S. et al., Respondents; C., Appellant. Robert Abrams, as Attorney-General of the State of New York, Intervenor-Respondent.
    Submitted March 12, 1984;
    decided March 29, 1984
   Motion for a stay denied as unnecessary (CPLR 5519, subd [e]). Further, it is noted that respondents consent to continuing the terms and conditions of the stay ordered by the Appellate Division pending the hearing and determination of the appeal to this court.


text:
    The People of the State of New York, Respondent, v Nathan Frailey, Appellant.
    Submitted March 19, 1984;
    decided March 29, 1984
   Motion to vacate the Court of Appeals order of dismissal dated February 13, 1984 denied. [See 61 NY2d 906.]