text:
    In the Matter of 107 Delaware Associates et al., Respondents, v New York State Tax Commission, Appellant.
    Argued February 13, 1985;
    decided March 21, 1985

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Peter G. Crary and Peter H. Schiff of counsel), for appellant.

      Michael Whiteman and Kevin M. Young for respondent.
   OPINION OF THE COURT

Judgment reversed, with costs, and the determination of the State Tax Commission reinstated for the reasons stated in the dissenting opinion of Justice John T. Casey at the Appellate Division (99 AD2d 29, 33-34). In addition, we note that Tax Law § 1105 (c) (5) does not apply because the corporation is not an individual within the meaning of the statute.

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


source: Caselaw Access Project

license: Public Domain

text:
    Irving Kanter et al., Appellants, v Austin A. Schlecker et al., Defendants, and Herbert I. Weinreb, Respondent.
    Argued February 14, 1985;
    decided March 21, 1985

      APPEARANCES OF COUNSEL

      Peter L. Gale for appellants.

      Steven C. Mandell for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (102 AD2d 882).

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

       Designated pursuant to NY Constitution, article VI, § 2.


text:
    The People of the State of New York, Respondent, v Robert Clark, Appellant.
    Argued February 6, 1985;
    decided March 21, 1985

      APPEARANCES OF COUNSEL

      Scott H. Greenfield and Milton M. Rosenberg for appellant.

      Robert M. Morgenthau, District Attorney (Wayne Eastman and Joyce P. Adolfsen of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

It is unnecessary to consider whether it was proper for the police to have overheard the conversation at the defendant’s door, in view of the fact that the other information available to the police prior to their entry of the defendant’s apartment was alone sufficient to sustain the finding of probable cause (see, People v Plevy, 52 NY2d 58, 66).

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

Order affirmed in a memorandum.


text:
    Sarah Blum et al., Respondents, v West End Associates, Appellant.
    Decided March 21, 1985

      APPEARANCES OF COUNSEL

      Bernard M. Alter and Adam Pollack for appellant.

      Brenda I. Liebowitz for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the matter remitted to Supreme Court, New York County, for the entry of judgment declaring the current section 226-b of the Real Property Law applicable to this action and declaring the rights of the parties thereunder in accordance with this memorandum.

Under the former version of Real Property Law § 226-b, a landlord who failed to send a notice responding to a tenant’s request to assign his lease was deemed to, consent to the proposed assignment. Under the present section 226-b, where a landlord unreasonably withholds consent to a proposed assignment, whether by not sending a notice responding to the request or by setting forth an unreasonable basis for not consenting, the tenant’s only remedy is, if he so chooses, to be released from the lease. Under section 226-b (7), this new provision concerning assignment is applicable “to all actions and proceedings pending on the effective date of this section [June 30, 1983]”.

Although the landlord’s failure to send a notice herein occurred prior to June 30,1983, plaintiffs’ action for a declaration that the defendant landlord was deemed to have consented to the proposed assignment was “pending” on that date (see, Vance v Century Apts. Assoc., 61 NY2d 716). Plaintiffs’ argument, that because all of the facts which entitled them to proceed with the assignment occurred prior to June 30,1983 they had a “vested” right which could not be disturbed by the new statute, is unpersuasive in view of our retroactive application of section 226-b in Vance v Century Apts. Assoc. (supra) and Tagert v 211 E. 70th St. Co. (63 NY2d 818), which are indistinguishable-for purposes of this argument.

Consequently, the current section 226-b is applicable, and under this provision the defendant’s failure to send a notice only entitles the plaintiff Blum to be released from her lease.

We have considered the constitutional issue raised and find it to be without merit.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons and Kaye concur; Judge Alexander 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 reversed, without costs, and case remitted to Supreme Court, New York County, for entry of judgment in accordance with the memorandum herein.


text:
    In the Matter of Empire State Pharmaceutical Society et al., Appellants, v New York State Department of Education et al., Respondents.
    Argued February 5, 1985;
    decided March 21, 1985

      APPEARANCES OF COUNSEL

      Jerome Sager and Harry Kresky for appellants.

      Robert Abrams, Attorney-General (Peter G. Crary, Robert Hermann and Peter H. Schiff of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (102 AD2d 964).

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


text:
    Francisco F. Bernardez et al., Appellants, v Federal Deposit Insurance Corporation, as Receiver of American Bank & Trust Company, Respondent.
    Argued February 7, 1985;
    decided March 21, 1985

      APPEARANCES OF COUNSEL

      Herman E. Cooper for appellant.

      Jeffrey M. Epstein and John H. Eickemeyer for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (104 AD2d 309).

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


text:
    J. P. Realty Trust et al., Respondents, v Public Service Mutual Insurance Company, Appellant and Third-Party Plaintiff. Travelers Insurance Company, Third-Party Defendant.
    Argued February 12, 1985;
    decided March 21, 1985

      APPEARANCES OF COUNSEL

      Nathan Cyperstein and Elliot H. Fuld for appellant.

      Joseph L. Forstadt, Daniel Turbow, Barbara Ettlinger and David A. Stein for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the Per Curiam opinion at the Appellate Division (102 AD2d 68).

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


text:
    In the Matter of Louise E. S., Appellant, v W. Stephen S., Respondent.
    Argued February 5, 1985;
    decided March 21, 1985

      APPEARANCES OF COUNSEL

      John J. Crimmins, III, and Thomas J. Donohue for appellant.

      Andrew F. Capoccia for respondent.
   OPINION OF THE COURT

Memorandum.

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

The authority of the Appellate Division in matters of custody is as broad as that of the Trial Judge (see, Kobylack v Kobylack, 62 NY2d 399; Majauskas v Majauskas, 61 NY2d 481). When the Appellate Division reverses a custody award made by Special Term, our function is, therefore, to decide, taking into consideration the various factors on which custody awards depend, which determination of the courts below comports more nearly with the weight of the evidence (Eschbach v Eschbach, 56 NY2d 167, 174; cf. Matter of Ray A.M., 37 NY2d 619, 622-623).

In that evaluation respect is to be accorded the Trial Judge’s advantage, not available to appellate Judges, in being able to observe the demeanor of the witnesses (id.; Boyd v Boyd, 252 NY 422), as well as the desire of the child whose custody is in issue (Eschbach v Eschbach, 56 NY2d, at p 173, supra), but neither is determinative (id.). Stability is likewise an important consideration but the disruption of change is not necessarily conclusive (Friederwitzer v Friederwitzer, 55 NY2d 89, 94). Primary among the circumstances to be considered in determining the best interests of the child are the ability to provide for the child’s emotional and intellectual development, the quality of the home environment and the parental guidance provided (Eschbach v Eschbach, 56 NY2d, at p 172, supra).

In the instant case the agreement between the parents, incorporated in the divorce decree, provided for joint custody but physical residence of the then five-year-old boy with his mother, either party, however, to be entitled, upon application, to a de novo hearing as to sole custody. That arrangement indicates the father’s willingness under the then existing circumstances to have his son reside with his mother and bears upon the question of stability, but otherwise has little weight (Friederwitzer v Friederwitzer, supra). The Appellate Division brushed aside the question whether physical surroundings in petitioner’s home are unsanitary and unkempt, but concluded that the cultural, educational and social opportunities with respondent were essential to the boy’s development and had not been provided by petitioner, and that, therefore, a change in his custody was warranted. In our view, the weight of the evidence more nearly comports with the Appellate Division’s conclusion that petitioner paid insufficient attention to the child’s development, with the result that he had few peers with whom to interact, was excessively absent from school, spent little, if any, time elsewhere than on petitioner’s farm or at school, and had developed a behavioral problem in relation to his classmates. Nor is our conclusion affected by the psychiatrist’s testimony that the boy should remain with his mother until he is 9 or 10, for he also testified that the boy loves his father and enjoys being with him, and the child, having been born December 17,1975, is now in his tenth year.

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

Order affirmed, without costs; in a memorandum.


text:
    Colonial Arms Apartments, Respondent, v Village of Mount Kisco, Appellant.
    Decided March 21, 1985

      APPEARANCES OF COUNSEL

      Charles V. Martabano and George J. Calcagnini for appellant.

      Thomas J. Singleton for respondent.
   OPINION OF THE COURT

Memorandum.

The appeal should be dismissed, without costs, on the ground of mootness.

On November 19,1979, defendant village adopted a resolution declaring a housing emergency with respect to buildings with 16 or more housing accommodations and applied the Emergency Tenant Protection Act (ETPA) (L 1974, ch 576, § 4) § 3 (a) thereto. As a result, rentals in those accommodations were frozen as of the date of the resolution. Plaintiff, an owner of an apartment building with 16 or more units, commenced this action seeking to declare the resolution void on the ground that defendant neglected to conduct a survey or use other recent data to establish the vacancy rate required by the enabling statute. The Appellate Division accepted plaintiff’s argument and invalidated the 1979 adoption of ETPA. The order of the Appellate Division was automatically stayed pursuant to the provisions of CPLR 5519 (a) (1) and the 1979 resolution freezing rentals in the subject apartments remained in effect on the appeal to this court. On December 18, 1984, while the appeal was pending, defendant readopted the ETPA, superseding the challenged resolution, and basing its vacancy rate determination this time on a recent survey. The rent freeze established in 1979 was thus continued.

Inasmuch as the rentals will be the same whether or not plaintiff prevails on this appeal, it is conceded that the appeal is moot. We agree and would but note further that none of the three exceptions to the mootness doctrine under which this court could retain jurisdiction are applicable (see, Matter of Westchester Rockland Newspapers v Leggett, 48 NY2d 430, 437).

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


text:
    In the Matter of Town of Mount Kisco et al., Appellants, v State Board of Equalization and Assessment et al., Respondents, and Town of Scarsdale, Intervenor-Respondent.
    Argued February 11, 1985;
    decided March 21, 1985

      APPEARANCES OF COUNSEL

      Lawrence Dittelman for appellants.

      Robert Abrams, Attorney-General (John Q. Driscoll, Robert Hermann and Peter H. Schiff of counsel), for State Board of Equalization and Assessment, respondent.

      Marvin S. Fink for intervenor-respondent.
   OPINION OF THE COURT

Memorandum.

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

At issue is the procedure to be followed for challenging county equalization rates adopted in December 1980 by the Westchester County Tax Commission for apportioning 1981 county taxes. Like many counties, Westchester by local law took as its equalization rates the latest available schedule of rates issued by the State Board of Equalization and Assessment (SBEA) — in this case the 1980 advisory schedule issued in November 1980 — adjusting those figures for changes in the level of assessments. As in prior years, the 1980 advisory schedule incorporated the State’s final schedule of equalization rates for 1979. The State’s final rates for 1979 were in turn based on a 1976 market survey of properties. Petitioner municipalities challenged the 1980 county equalization rates before the SBEA, in a proceeding under section 816 of the Real Property Tax Law, alleging various errors in calculation of the 1979 State equalization rate, for example, that 14 properties in the 1976 market survey were overvalued and that the wrong method was used in appraising certain condominium units in Mount Kisco. The SBEA confirmed the conclusion of the hearing officer that, by their failure to challenge the State’s 1979 equalization rates, petitioners had waived any right to question the valuations and methodology used in determining those rates, and additionally found that the rates were fair and equitable. The Appellate Division, two Justices dissenting, confirmed on both grounds. Without reaching the fairness oif the rates themselves, we affirm.

Article 12 of the Real Propérty Tax Law requires the SBEA to ascertain by means of inquiry and investigation the equalization rates for municipalities and to notify them of tentative rates. In recognition of the significance of these rates to various taxing and other interests of cities, towns and villages (see, Matter of Town of Smithtown v Moore, 11 NY2d 238, 242; 860 Executive Towers v Board of Assessors, 53 AD2d 463, 468, affd sub nom. Matter of Pierre Pellaton Apts, v Board of Assessors, 43 NY2d 769), the statute permits municipalities to challenge the tentative rates; it provides a mechanism for hearing their complaints before the final rates are established; and it affords judicial review (see, Real Property Tax Law §§ 1200-1218). We have in the past emphasized the need to invoke these direct statutory procedures for challenging the State rates (see, Central Buffalo Project Corp. v City of Buffalo, 52 NY2d 986, affg 1A AD2d 336; 860 Executive Towers v Board of Assessors, 53 AD2d 463, 474, supra). Although by law the county was required to adopt State equalization rates (Westchester County Charter § 122.61), petitioners here sought no review under article 12 of the tentative or final State equalization rates for .1979. This failure precludes them from questioning the validity of those same rates in this collateral attack under section 816 of the Real Property Tax Law (see, Central Buffalo Project Corp. v City of Buffalo, 52 NY2d 986, supra). Such preclusion does not vitiate section 816, which allows localities to obtain a determination by the SBEA of the fairness of the county rate. As to counties which now or in the future may set their rates independent of the State rates, municipalities have no other vehicle for their complaints. Further, even if a county adopts the State rates, section 816 gives the municipalities the right to challenge other aspects of the rates which may not be subject to the scheme of review established by article 12.

Chief Judge Wachtlek and Judges Jasen, Meyer, Simons, Kaye and Alexander concur.

Judgment affirmed, with costs, in a memorandum.

       As the SBEA found, and the Appellate Division confirmed, corrections to reflect the 1976 overvaluation, if made, would have involved reapportionment of approximately $186,000 or .0016% of the total county tax levy, thus indicating that the apportionment was not inequitable.


text:
    The People of the State of New York, Respondent, v Ethel Mae Ridgeway, Appellant.
    Argued February 12, 1985;
    decided March 21, 1985

      APPEARANCES OF COUNSEL

      Richard P. Weisbeck, Jr., John A. Ziegler and Rose H. Sconiers for appellant.

      Richard J. Arcara, District Attorney (Barbara Davies Eberl and John J. DeFranks of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

For the reasons stated in part II of the opinion of Justice Stewart F. Hancock, Jr., the filing of the complaint and issuance of the arrest warrant in Federal court did not trigger the indelible right to counsel under New York law. The assistance of counsel becomes indispensable when a criminal action is commenced by the State against the defendant, for at that point the defendant “cannot make any arrangement with the police which is not subject to the ultimate approval of the court and there ought be no necessity for further police investigation.” (People v Settles, 46 NY2d 154, 163; see also, People v Samuels, 49 NY2d 218.) That stage was not reached here until after the termination of Federal proceedings and after defendant’s confession. Moreover there is no indication in this record that the Federal arrest was intended or employed by State Police as a device for circumventing defendant’s State right to counsel. The finding of the courts below as to the voluntariness of both defendant’s waiver of her Miranda rights and her confession is supported by the record and therefore cannot be disturbed by this court (see, People v Johnson, 40 NY2d 882, affg 49 AD2d 663). Finally, as to the Bruton issue, there is no error because the two confessions were so similar that no measurable prejudice resulted (see, People v Safian, 46 NY2d 181, cert denied sub nom. Miner v New York, 443 US 912).

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

Order affirmed in a memorandum.


text:
    In the Matter of Twenty First Point Company, Appellant, v Town of Guilderland et al., Respondents.
    Argued February 13, 1985;
    decided March 21, 1985

      APPEARANCES OF COUNSEL

      Charles J. Tobin, III, and David A. Ruffo for appellant.

      William F. Sheehan for Town of Guilderland and others, respondents.

      Paul J. Laudato and C. Theodore Carlson for Board of Education of the Guilderland School District, respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Justice John T. Casey at the Appellate Division (101 AD2d 407).

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


text:
    The People of the State of New York, Respondent, v Quentin Meadows, Appellant.
    Argued February 14, 1985;
    decided March 21, 1985

      APPEARANCES OF COUNSEL

      Spiros A. Tsimbinos for appellant.

      Denis Dillon, District Attorney (Denise Parillo and Anthony J. Gírese of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

On October 21, 1980, a man entered a gas station and robbed an attendant, John Taylor, and his cousin, James Alviti. At police headquarters the next day, Taylor and Alviti identified defendant from a group of slides and photographs. A week later, the same man appeared at the station and robbed Taylor and his co-worker, Vincent Rizzuto. After the robbery, Taylor informed police that he recognized defendant as the perpetrator and both he and Rizzuto identified defendant from a photographic array. Defendant was arrested pursuant to a warrant on November 7, 1980 and, upon his arrival at the precinct, confessed to both robberies. On May 19,1981, after the indictment, defendant was placed in a lineup and identified by Rizzuto. The other victims did not view the lineup. Defendant’s attorney, James Horan, although notified that the lineup would take place, did not attend, leaving defendant unrepresented. On the motion to suppress the identifications, the court found that the photo arrays and the lineup were not unduly suggestive and that each of the three victims had an independent source for in-court identifications, based on their observations during the robberies. The court also concluded that defendant was not denied his right to counsel at the lineup because of counsel’s refusal to attend. Defendant was convicted after trial, and the Appellate Division affirmed without opinion.

Defendant challenges principally the introduction into evidence of Rizzuto’s lineup identification which, he argues, violated his right to counsel (see, e.g., People v Settles, 46 NY2d 154). We need not pass on this issue because the error, if any, was harmless. There is no cause to disturb the conclusion of the courts below that the identifications of Taylor and Alviti were untainted by any improper procedure. As to Rizzuto, the record supports the hearing court’s finding, affirmed by the Appellate Division, that his in-court identification was based on observation of defendant during the crime rather than at the lineup. In the face of three in-court identifications by eyewitnesses, the evidence of Rizzuto’s lineup identification added little to the already overwhelming evidence of guilt. While defendant testified that he did not commit the robberies, this testimony was thoroughly discredited by his confession, which was properly used for impeachment purposes (People v Maerling, 64 NY2d 134; People v Ricco, 56 NY2d 320) even though inadmissible on the People’s direct case (People v Samuels, 49 NY2d 218). In these circumstances, any error in the admission of the lineup evidence would not require reversal (see, People v Adams, 53 NY2d 241, 252).

Defendant’s remaining contentions are without merit.

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

Order affirmed in a memorandum.


text:
    Hempstead General Hospital, as Assignee of Frank Rinck et al., Appellant, v Allstate Insurance Company, Respondent.
    Decided March 21, 1985

      APPEARANCES OF COUNSEL

      Joseph Henig for appellant.

      Benjamin Purvin, J. Irwin Shapiro and Daniel M. Kolko 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 (106 AD2d 429).

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


text:
    Tex Styles Group, Inc., Appellant, v Republic Factors Corporation, Respondent.
    Decided March 21, 1985

      APPEARANCES OF COUNSEL

      George Reiss and Alan M. Dubow for appellant.

      Donald Relkin 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 (106 AD2d 257).

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


text:
    The People of the State of New York, Respondent, v Richard Washington, Appellant.
    Argued February 12, 1985;
    decided March 21, 1985

      APPEARANCES OF COUNSEL

      Robert A. Voorhis and William E. Hellerstein for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

No error of law is preserved for our review on this appeal (CPL 470.05 [2]). Following the recess taken to permit defense counsel to interview the proposed witness Grier, who allegedly had confessed to being one of the perpetrators of the robbery with which defendant was charged, no request was made by defense counsel either to call Grier to testify or to seek admission of his so-called confession as an admission against penal interest (People v Settles, 46 NY2d 154), through the testimony of the officer who had arrested Grier for an unrelated robbery and to whom the confession was made. No attempt was made by defense counsel to advise the court, through an offer of proof, of what he had learned in his interview of Grier and the arresting officer or to renew his request to call the witnesses.

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

Order affirmed in a memorandum.


text:
    In the Matter of Allstate Life Insurance Company, Appellant, v Superintendent of Insurance of the State of New York, Respondent.
    Argued February 12, 1985;
    decided March 21, 1985

      APPEARANCES OF COUNSEL

      T. Richard Kennedy, Edward Thompson, John M. Nonna and Deborah F. Peters for appellant.

      Robert Abrams, Attorney-General (Lillian Z. Cohen, Robert Hermann and O. Peter Sherwood of counsel), for respondent.

      Gordon E. McCutchan for Nationwide Life Insurance Company, amicus curiae.

   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Justice Leonard H. Sandler at the Appellate Division (99 AD2d 278).

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


text:
    Queensbury Union Free School District, Appellant, v Jim Walter Corporation et al., Respondents.
    Argued February 13, 1985;
    decided March 21, 1985

      APPEARANCES OF COUNSEL

      H. Wayne Judge and Patricia E. Watkins for appellant.

      George F. Carpinello for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum of the Appellate Division (101 AD2d 992).

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


text:
    Joann C. Slatt, Respondent, v Abner P. Slatt, Appellant.
    Argued February 4, 1985;
    decided March 21, 1985
    APPEARANCES OF COUNSEL

      Edith Blumberg for appellant.

      Joann C. Slatt, respondent pro se.

   OPINION OF THE COURT

Memorandum.

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

Paragraph fifth of a separation agreement, prepared by defendant’s counsel and executed by the parties on July 1, 1969, provides for the periodic payment of various sums by the husband to the wife for her “support and maintenance” until she “dies or remarries”. In addition to the monthly installments required to be paid pursuant to subparagraphs (a) and (b), subparagraph (c) calls for the payment of $500 on December 31, 1969 and “on December 31, 1970 the sum of $1,000.00; and on each and every December 31st thereafter, a like sum of $1,000.00.” Subparagraph (g) provides that: “In addition to the foregoing payments, the wife shall receive an additional sum representing a cost of living increase based upon the U.S. Department of Labor Bureau of Labor Statistics Consumer Price Index for Urban Wage Earners and Clerical Workers, above the base figure, as set forth in said Statistics for the year 1969.”

The trial court found that, despite an 11-year period during which the husband made no payments of a cost of living increase on the annual payments of $1,000 under subparagraph (c) the foregoing language obligated him to pay a cost of living increase on those annual payments, as well as on the monthly installments called for under subparagraphs (a) and (b). A divided Appellate Division affirmed, the majority finding that the language was unambiguous and that such ambiguity as may exist should be resolved against the defendant. We agree.

In adjudicating the rights of parties to a contract, courts may not fashion a new contract under the guise of contract construction (Marlee Sales Corp. v Manufacturers Trust Co., 9 NY2d 16); rather, they are required to discern the intent of the parties, “ ‘to the extent that [the parties] evidenced what they intended by what they wrote’ ” (Laba v Carey, 29 NY2d 302, 308). Where the intention of the parties is clearly and unambiguously set forth, effect must be given to the intent as indicated by the language used (10 NY Jur, Contracts, § 193; Hall & Co. v Orient Overseas Assoc., 65 AD2d 424, affd 48 NY2d 958). The language “[i]n addition to the foregoing payments”, following as it does, without limitation, the enumeration of the various payments the defendant obligated himself to make, clearly evinces an intent to subject all of the enumerated payments to the cost of living increase. There is no need here to examine the conduct of the parties over the intervening years to ascertain their intent in respect to the application of the cost of living increase. Such an inquiry might be appropriate in the instance of an ambiguity or where the contract is of “doubtful meaning” (City of New York v New York City Ry. Co., 193 NY 543) or where there is claimed “waiver”, none of which is present in this case. Moreover, the contract provided that modifications required a writing, and that mere failure to assert a right would not constitute a waiver.

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

Order affirmed, with costs, in a memorandum.


text:
    Anthony Fagnani et al., Respondents, v American Home Assurance Company, Appellant. Warren R. Young et al., Respondents, v American Home Assurance Company, Appellant.
    Decided March 21, 1985

      APPEARANCES OF COUNSEL

      Patrick F. Foley for appellant.

      William J. Pastore 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 appealed from and order of the Appellate Division brought up for review reversed, with costs, and plaintiffs’ motions for summary judgment denied for the reasons stated in the dissenting in part memorandum of Justice Vito J. Titone at the Appellate Division (101 AD2d 803).

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


text:
    In the Matter of Dante Di Fiore, Appellant, v Board of Education of Plainview-Old Bethpage Central School District, Respondent.
    Submitted January 28, 1985;
    decided March 21, 1985
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]), with $20 costs and necessary reproduction disbursements.


text:
    Roger McCollester, Appellant, v James A. Chisholm et al., Respondents.
    Submitted February 11, 1985;
    decided March 21, 1985
   Motion for leave to appeal denied upon the ground that an appeal lies as of right (CPLR 5601 [a] [ii]).


text:
    The People of the State of New York, Respondent, v Martin Daly, Appellant.
    Argued February 5, 1985;
    decided March 19, 1985

      APPEARANCES OF COUNSEL

      Bertrand, J. Kahn and William E. Hellerstein for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed. We agree with the Appellate Division that the testimony of the defense investigator was clearly collateral to the principal question which was to be resolved by the jury, that is, whether the defendant committed the robbery.

Defendant did not interpose an “alibi” defense, and never claimed that he was with Mr. and Mrs. Gibbs in their apartment during the robbery. Additionally, the testimony offered by defendant would merely have informed the jury that Mr. and Mrs. Gibbs could no longer be found; it would not have corroborated the statement made by codefendant Bryant that defendant lived with Mr. and Mrs. Gibbs in their apartment in the vacant building, which was where defendant was found shortly after the robbery occurred. Furthermore, his flight to an apartment, in which he allegedly lived, was not inconsistent with guilt on the robbery charges.

Accordingly, we find that no prejudicial error was committed by the trial court in this regard.

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

Order affirmed in a memorandum.

       Designated pursuant to NY Constitution, article VI, § 2.


text:
    In the Matter of Alexander Hartman, Doing Business as East Haven Health Related Facility, Appellant, v David Axelrod, as Commissioner of Health of the State of New York, et al., Respondents.
    Decided March 26, 1985

      APPEARANCES OF COUNSEL

      Cornelius D. Murray for appellant.

      Robert Abrams, Attorney-General (Robert Hermann and Alan W. Rubenstein 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), order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (103 AD2d 863).

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


text:
    In the Matter of John J. Donovan, as Administrator of the Estate of George V. Donovan, Deceased, Appellant, v County of Niagara et al., Respondents.
    Decided March 26, 1985

      APPEARANCES OF COUNSEL

      Eric A. Bloom for appellant.

      Irving C. Maghran, Jr., for County of Niagara, respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (100 AD2d 740).

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander.


text:
    In the Matter of the Dissolution of Cristo Brothers, Inc. Nicholas A. Cristo, Appellant; Sebastian Cristo, Respondent.
    Argued February 8, 1985;
    decided March 26, 1985

      APPEARANCES OF COUNSEL

      Jerome K. Frost for appellant.

      Philip F. Calderone for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the negative.

The legislative history of Business Corporation Law § 1118 contains nothing to indicate why it accorded a buy-out privilege in any proceeding brought pursuant to section 1104-a but not with respect to a dissolution proceeding under Business Corporation Law § 1104. We agree with the Appellate Division, however, that the holder of 50% of a close corporation’s stock is a holder “of twenty percent or more” of such a corporation’s outstanding stock, that a proceeding for dissolution brought under both Business Corporation Law §§ 1104 and 1104-a is a “proceeding brought pursuant to section [1104-a],” and that, therefore, respondent, as the holder of 50% of the outstanding stock of Cristo Brothers, Inc., was entitled to buy out petitioner’s shares pursuant to Business Corporation Law § 1118.

Petitioner argues that respondent should not be permitted to buy him out while at the same time denying the allegations of oppressive action and waste on which an 1104-a proceeding depends and that if permitted to do so respondent will unfairly obtain the sole advantage of the corporation’s tax loss. Those factors may affect the “fair value” to be determined under section 1118 (b) (an issue on which we express no present opinion); but in light of the provisions of section 1118 (a) that the buy-out election must be exercised within 90 days after the filing of the petition unless that time is extended by the court, and of section 1118 (b) that after such an election the dissolution proceeding shall be stayed upon application by the prospective purchaser and that fair value is to be determined as of the day prior to the date on which the 1104-a petition was filed, it is clear that the Legislature did not regard either factor as an impediment to the exercise of the buy-out privilege it accorded other shareholders in such a proceeding.

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

Order affirmed, etc.


text:
    Aviva Teichner, an Infant, by Her Mother and Natural Guardian Ingrid Teichner, et al., Appellants, v W & J Holsteins, Inc., et al., Defendants. Aaron J. Broder, Respondent.
    Argued February 11, 1985;
    decided March 26, 1985

      APPEARANCES OF COUNSEL

      Adam Walinsky for appellants.

      Aaron J. Broder, respondent pro se, and Edward S. Rudofsky and Frederick A. Polatsek for Aaron J. Broder, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the matter remitted to Supreme Court, New York County, for a hearing to determine whether respondent Broder is entitled to be paid for his services and, if so, the amount of compensation due him.

This is a special proceeding to approve the settlement of an infant’s personal injury action and award counsel fees (see, CPLR1208; Judiciary Law § 474; 22 NYCRR 603.8). The settlement of $1,200,000 has been approved and the remaining dispute concerns the attorneys’ fees to be awarded trial counsel, respondent Aaron J. Broder. On April 28, 1981, after the settlement was agreed upon but before it was approved, a dispute developed between the client and Broder. Broder then moved before Supreme Court to discharge the attorneys of record, Hinman, Straub, Pigors & Manning, on grounds of conflict of interest, for an increase in attorneys’ fees from 33%% to 50% and that he be awarded all attorneys’ fees. Plaintiffs and their attorneys of record then filed a cross motion opposing the payment of any fee, alleging that Broder had previously been discharged for cause because of his misconduct and his extortionate demands for an increased fee and seeking an order removing him. The record does not contain any denial of these allegations by Broder.

Supreme Court approved the settlement and placed 33%% of the funds in escrow for payment of a counsel fee. At subsequent-proceedings, the court denied both motions, awarding Broder 60% of the 33/a% fee as originally agreed upon and refusing to hear plaintiffs’ evidence that Broder had been discharged for cause. The Appellate Division affirmed, without opinion.

A client has an absolute right to discharge an attorney at any time. If the discharge is with cause, the attorney has no right to compensation or to a retaining lien (Matter of Weitling, 266 NY 184; Marschke v Cross, 82 AD2d 944; 7 NY Jur 2d, Attorneys at Law, § 144, at 43-44). If the discharge is without cause before the completion of services, then the amount of the attorney’s compensation must be determined on a quantum meruit basis (Crowley v Wolf, 281 NY 59, 64-65; Matter of Shaad, 59 AD2d 1061). Plaintiffs’ moving papers allege that they attempted to discharge Broder on April 15,1981, prior to the judicial approval of the compromise order — a necessary part of plaintiff’s attorney’s duties in an action brought on behalf of an infant (Judiciary Law § 474; 22 NYCRR 603.8) — and that they did so because of his personal misconduct and extortionate conduct. A hearing is required to determine if he was discharged for cause or, if he was discharged without cause before completion of the services, for a determination of his fee on the quantum meruit basis (Crowley v Wolf, 281 NY, at pp 64-65; Marschke v Cross, 82 AD2d 944, supra).

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

Order reversed, with costs, and matter remitted to Supreme Court, New York County, for further proceedings in accordance with the memorandum herein.

       Designated pursuant to NY Constitution, article VI, § 2.


text:
    The People of the State of New York, Respondent, v John L. Allen, Appellant.
    Argued February 12, 1985;
    decided March 26, 1985

      APPEARANCES OF COUNSEL

      Daniel J. Tuczinski for appellant.

      Eugene Keeler, District Attorney (William Cranna of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed for reasons stated in the memorandum at the Appellate Division (99 AD2d 592).

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


text:
    Charles Joseph, Appellant, v Anthony Ruffo, as Broome County Sheriff, Respondent.
    Argued February 13, 1985;
    decided March 26, 1985

      APPEARANCES OF COUNSEL

      Ronald R. Benjamin for appellant.

      John E. Murray, County Attorney (Alfred Paniccia, Jr., of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment appealed from and the order of the Appellate Division brought up for review should be affirmed, with costs, for reasons stated in the memorandum decision of the Appellate Division (101 AD2d 664).

We would but add that insofar as the decision of the Appellate Division may be interpreted to suggest that plaintiff’s award for attorneys’ fees should be reduced because he did not succeed on his Federal claim, such a ruling would be erroneous. The decision in Hensley v Eckerhart (461 US 424, 435) makes it clear that under the circumstances presented here the proper inquiry is the extent of relief obtained and not the legal grounds upon which it was granted.

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

Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, in a memorandum.


text:
    In the Matter of Bernard Moskowitz, Appellant, v David Axelrod, as Commissioner of Health of the State of New York, et al., Respondents.
    Decided March 26, 1985

      APPEARANCES OF COUNSEL

      David J. Larkin, Jr., for appellant.

      Robert Abrams, Attorney-General (Marion R. Buchbinder 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), order affirmed, with costs, for the reasons stated in so much of the memorandum at the Appellate Division as relates to petitioner Moskowitz (105 AD2d 633).

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


text:
    Philip H. Munson, Jr., Doing Business as Munson Farms, Respondent, v New York Seed Improvement Cooperative, Inc., Appellant.
    Decided March 26, 1985
    APPEARANCES OF COUNSEL

      Arthur J. Golder, Jr., for appellant.

      James A. Salk for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, the judgment of Supreme Court reinstated and the certified question answered in the affirmative.

Plaintiff is a bean farmer in Tompkins County. In July 1981 he contracted to purchase “foundation seed” from defendant for spring 1982, and tendered a $5,000 deposit with his order. In the spring of 1982 defendant informed plaintiff that it was unable to deliver the “foundation seed”, and offered to sell “registered seed” at a reduced price of $14,500. Plaintiff agreed to the change and picked up the “registered seed”. Shortly thereafter, he allegedly discovered that the “registered seed” was defective and attempted unsuccessfully to return it.

Plaintiff commenced this action against defendant alleging a breach of the agreement for “foundation seed” and seeking recovery for the diminution in customer goodwill resulting from the breach. Defendant counterclaimed for $9,500, the balance due on the agreement for “registered seed”. In response, plaintiff interposed a reply containing a general denial.

At trial, following the opening statements, the plaintiff made an offer of proof concerning the inferior quality of the “registered seed” and his attempt to reject it. Neither claim was raised in the amended complaint or the reply. The court then dismissed the amended complaint and directed a verdict in favor of defendant on its counterclaim for the balance due for the “registered seed”. It also denied plaintiff’s motion to amend his pleadings.

The Appellate Division modified, on the law, by reversing the Supreme Court order insofar as it directed a verdict for defendant on the counterclaim, and otherwise affirmed as to the dismissal of the complaint. The question certified to this court is whether the Appellate Division erred in its ruling on the counterclaim — that the offer of proof was sufficient to raise a defense as to the quality of the seed and the attempted rejection where these claims were not otherwise raised in the pleadings. Defendant contends that plaintiff failed to plead the affirmative defense of breach of warranty in his amended complaint or reply and is thereby precluded from offering such proof as a defense to the counterclaim.

The general rule stated in CPLR 3018 (b) is that “[a] party shall plead all matters which if not pleaded would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading”. Defendant cannot claim surprise because the protestations as to the quality of the registered seed were communicated to it. However, the allegations concerning inferior quality and the attempted rejection raise factual issues which do not appear in the plaintiff’s pleadings. The failure to plead these matters results in a waiver (see, Surlak v Surlak, 95 AD2d 371, appeal dismissed 61 NY2d 906) which entitles defendant to summary judgment on its counterclaim. Plaintiff’s general denial is insufficient to raise the claims because a general denial puts in issue only matters which defendant is bound to prove on its counterclaim (see generally, Hoffstaedter v Carlton Auto Supplies Co., 203 App Div 494,496).

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, etc.


text:
    Emanuel Fragedis et al., Plaintiffs, v Farrell Lines, Inc., Defendant. (And a Third-Party Action.) Frank J. Bulleran, Inc., Fourth-Party Appellant, v Universal Maritime Services Corp., Fourth-Party Respondent;
    Decided March 26, 1985

      APPEARANCES OF COUNSEL

      Robert M. Makla for appellant.

      William E. Bell for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff, a longshoreman, brought this action against a ship owner to recover for injuries sustained when he fell into a gap left by a wooden platform constructed in the ship’s hold. The vessél’s owner impleaded Frank H. Holleran, Inc., the marine carpentry firm which had built the platform. Holleran in turn brought a fourth-party action against Universal Maritime Services Corp., a stevedoring company, which, as plaintiff’s employer, had paid plaintiff benefits due under the Longshoremen’s and Harbor Workers’ Compensation Act (33 USC § 901 et seq.) (LHWCA). Universal’s motion for summary judgment dismissing the fourth-party complaint was granted, and the Appellate Division affirmed without opinion.

The LHWCA prohibits a party found liable in negligence to a longshoreman from seeking contribution from a compensation-paying stevedore (33 USC § 905 [a]). It also prohibits a negligent vessel from obtaining indemnity from such stevedore (33 USC § 905 [b]). Though the LHWCA does not necessarily preclude a nonvessel from bringing an action for indemnity- against a stevedore (see, Zapico v Bucyrus-Erie Co., 579 F2d 714), here Holleran has failed to meet its heavy burden of demonstrating any basis for an implied agreement of indemnification by the stevedore. There was no basis for an indemnification action either in the agreement between Universal and the vessel or in the relationship between Universal and Holleran (see, Mango v Waterman S. S. Lines, 89 AD2d 958), and therefore summary judgment was properly granted dismissing the fourth-party complaint.

Chief Judge Wachteer and Judges Jasen, Meyer, Simons, Kaye and Alexander 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 Arnold M. Asman, Appellant, v Gordon M. Ambach, as Commissioner of the Department of Education of the State of New York, et al., Respondents.
    Argued February 5, 1985;
    decided March 26, 1985
    APPEARANCES OF COUNSEL

      Philip C. Pinsky and George Skandalis for appellant.

      Robert Abrams, Attorney-General (<John J. O’Grady and Robert Hermann of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be reversed, with costs, respondents’ determination annulled and the matter remitted to the Appellate Division for remand to respondents for further proceedings in accordance with this memorandum.

In this expedited professional conduct proceeding, authorized by Education Law § 6510 (2) (d) based upon petitioner’s conviction of a crime (Education Law § 6509 [5] [a] [ii]) pursuant to which his license to practice accounting was revoked, the Regents Review Committee refused to make a stenographic record of its proceedings. Petitioner contends that this refusal was a denial of due process and precluded the Board of Regents from properly considering a full record of the proceedings before the Committee, including the “evidence and testimony relating to the nature and severity of the penalty to be imposed upon the licensee.”

At the time the petitioner’s hearing was conducted the statute did not require that a stenographic record be made.

However, on December 21, 1984, Education Law § 6510 was amended in respect to such proceedings. The Laws of 1984 (ch 1005, § 15) amended section 6510 (2) (d) to provide that where authorized expedited proceedings are followed and there is a referral to a Regent’s Review Committee for review, there shall be added to the notice of hearing the statement that the licensee may present evidence or sworn testimony on his behalf. The requirement that a stenographic record of the hearing be made was also added (L 1984, ch 1005, § 15). Section 6510 (4) (b) was amended to require that in those expedited proceedings where there is a direct referral to the Regent’s Review Committee pursuant to section 6510 (2) (d), in addition to those matters already required to be considered by the Committee, its review must be based on “any evidence or sworn testimony presented by the licensee or the department at the hearing.” (L1984, ch 1005, § 16.) Further amendments to Education Law § 65Í0 were made by the Laws of 1984 (ch 1018). Section 3 of that chapter provided in pertinent part that such evidence and sworn testimony submitted to the Committee “shall be limited to evidence and testimony relating to the nature and severity of the penalty to be imposed upon the licensee” (L 1984, ch 1018, § 3).

These amendments to Education Law § 6510 were to take effect immediately and would apply “to proceedings in which a notice of hearing has been served on the licensee * * * prior to the effective date of such [amendments]” (L 1984, chs 1005, 1018).

It is the rule “that a court applies the law as it exists at the time of appeal, not as it existed at the time of original determination”. (Matter of Alscot Investing Corp. v Board.of Trustees, 64 NY2d 921; Post v 120 E. End Ave. Corp., 62 NY2d 19, 28-29; Mayer v City Rent Agency, 46 NY2d 139, 149; Matter of Tartaglia v McLaughlin, 297 NY 419; Quaker Oats Co. v City of New York, 295 NY 527, 536.) Where the amended law “is procedural and remedial in nature * * * it should be liberally construed to spread its beneficial effects as widely as possible.” (Post v 120 E. End Ave. Corp., supra, at p 24.)

By directing that those sections of chapters 1005 and 1018 of the Laws of 1984 shall take effect immediately, the Legislature clearly indicated that these amendments are to be viewed as remedial, “ ‘ “designed to correct imperfections in prior law, by * * * giving relief to [an] aggrieved party” ’ (Cady v County of Broome, 87 AD2d 964, 965; Coffman v Coffman, 60 AD2d 181, 188.) Consequently, a new proceeding must be conducted in conformity with the statute as amended.

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

Judgment reversed, etc.


text:
    In the Matter of West Mountain Corporation, Appellant, v State of New York Department of Taxation and Finance et al., Respondents.
    Decided March 26, 1985

      APPEARANCES OF COUNSEL

      Dennis B. Schlenker for appellant.

      Robert Abrams, Attorney-General (Robert Hermann 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), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (105 AD2d 989).

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


text:
    David A. Foss, Appellant, v City of Rochester et al., Respondents.
    Argued February 14, 1985;
    reargument ordered March 26, 1985
   Reargument ordered and case set down for oral argument on May 28, 1985.


text:
    The People of the State of New York, Appellant, v Vernon Bagby, Respondent. The People of the State of New York, Respondent, v Vernon Bagby, Appellant.
    Submitted March 11, 1985;
    decided March 26, 1985
   Motion by the People to dismiss defendant’s appeal granted and defendant’s appeal dismissed upon the ground that it does not lie (CPL 450.90).

Motion by defendant to consolidate appeals dismissed as academic.


text:
    The People of the State of New York, Respondent, v Armando Fuentes, Appellant.
    Submitted March 4, 1985;
    decided March 26, 1985
   On the court’s own motion, appeals taken as of right dismissed upon the ground that they do not lie (CPL 450.90).

Motion for leave to appeal dismissed upon the ground that the Court of Appeals has no jurisdiction to entertain it (CPL 450.90, 460.20).


text:
    State Division of Human Rights, on Complaint of Deborah E. Greene, Respondent, v St. Elizabeth’s Hospital, Appellant.
    Decided March 26, 1985
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that it does not lie as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601).


text:
    In the Matter of Jacqueline Stoker, Respondent-Appellant, v Marianne Tarentino, as Health Service Director of the Ann Lee Home, et al., Appellants-Respondents.
    Argued February 12, 1985;
    decided March 28, 1985

      APPEARANCES OF COUNSEL

      Robert G. Lyman, County Attorney (F. Patrick Jeffers of counsel), for appellants-respondents.

      Lanny E. Walter for respondent-appellant.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be modified to annul the administrator’s disciplinary action of September 29, 1980, direct expungement from petitioner’s personnel records of the charge of patient neglect on which that action was based, and remit the matter for computation of the wages and benefits of which petitioner was deprived by the administrator’s action and, as so modified, should be affirmed, with costs to petitioner.

Respondents’ contention that petitioner waived article 78 review pursuant to Civil Service Law § 76 (1), and the right to a transcript of the hearing without charge pursuant to Civil Service Law § 75 (3), is predicated upon the provision of article 16, section 2 of the collective bargaining agreement that the step four decision of the Albany County Grievance Committee “shall be final and binding on both parties.” That contention is, however, inconsistent with the provision of article 17, section 1 of the agreement that “[a]ll such disciplinary and discharge action shall be subject to the terms of the Grievance Procedure of this Agreement and also in accordance with the Civil Service Law of the State of New York.” Those two provisions can be harmonized, as the rules of construction require (see, Weiss v Weiss, 52 NY2d 170, 174; Williams Press v State of New York, 37 NY2d 434, 440), only by construing the words “final and binding” as commencing the running of the time limit established by CPLR 217, within which an article 78 proceeding must be brought (“within four months after the determination to be reviewed becomes final and binding upon the petitioner”; see, City of Aurora v Hood, 194 Col 80; City of Lincoln v Soukup, 215 Neb 732). Nor is it significant that the petitioner in this case held a noncompetitive position, for article 17, section 1, of the agreement makes all disciplinary action against an employee of the Home, whether competitive or noncompetitive, subject to both the grievance procedure of the agreement and the Civil Service Law. On respondents’ appeal, therefore, there should be an affirmance.

On petitioner’s cross appeal, however, there should be a modification as above set forth. The neglect charge against petitioner was predicated upon a wheelchair patient having been left by herself in the bathroom after petitioner had assisted another nurse in moving the patient from bed to wheelchair to bathroom. All of the nurses who testified, including the assistant director of health services, agreed that there was no order, written or verbal, requiring a nurse to remain with the particular patient while, she was in the bathroom, that there was nothing in the policies and procedures of the Health Department or the Home concerning toilet procedures with respect to wheelchair patients (and a review of the exhibits in evidence reveals none), that wheelchair patients were routinely left alone in the bathroom and that whether a wheelchair patient’s condition required that a nurse remain in the bathroom with the patient was a matter of nursing judgment. The assistant director of health services, though present at the September 25, 1980 meeting in the administrator’s office as a result of which the neglect charge was made, was unable to recall what had then occurred. After she was read a quotation from the administrator’s letter imposing discipline, which attributed to petitioner the statement at the September 25th meeting that, “We did not stay with the patient while she was on the toilet,” she testified that in her opinion not to do so constituted patient neglect when it took two people to get her out of bed and into the wheelchair. The only evidence in the record concerning the particular incident establishes, however, that petitioner left the bathroom about a minute before the other nurse. The expert testimony of the assistant director of health services was without foundation in fact with respect to petitioner. The administrator’s disciplinary action must, therefore, be annulled for want of substantial evidence of neglect by petitioner and the matter remitted for further proceedings in accordance with this memorandum.

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

Judgment modified, with costs to petitioner, and matter remitted to Supreme Court, Albany County, with directions to remand to respondents for further proceedings in accordance with the memorandum herein and, as so modified, affirmed.

       The argument in point III of respondent’s brief that the proper test is rational basis rather than substantial evidence because the hearing was not held pursuant to a direction of law was not raised below and, therefore, is not considered by us.


text:
    The People of the State of New York, Respondent, v Julio Ortiz, Appellant.
    Decided March 28, 1985

      APPEARANCES OF COUNSEL

      Ronald D. Degen for appellant.

      Thomas A. Duffy, Jr., Special Prosecutor (Michael Shapiro of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

On this appeal, defendant urges us to reverse a finding of the Appellate Division that the police had probable cause to arrest defendant Julio Ortiz. A probable cause determination, involving mixed questions of law and fact, is beyond the review powers of this court in those instances where conflicting inferences may be drawn from the evidence (People v Harrison, 57 NY2d 470, 477). In this case there is sufficient evidence to support the determination that there was probable cause to arrest defendant at the moment of his initial detention. Because there was probable cause to arrest defendant at the time he was detained, we need not reach the question of whether a person stopped on reasonable suspicion, but not probable cause, may be detained pending the execution of a valid search warrant (see, People v Brnja, 50 NY2d ,366). Moreover, the mandatory sentences imposed upon defendant are not so grossly disproportionate to the offenses committed as to amount to an unconstitutionally cruel and unusual punishment (see, People v Jones, 39 NY2d 694, 697). We have considered defendant’s argument as to the sufficiency of the evidence with regard to the jury verdict and find it to be without merit.

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

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


text:
    Esther K. Fiore et al., Appellants, v Dominador Galang et al., Defendants, and Benedictine Hospital, Respondent.
    Decided March 28, 1985

      APPEARANCES OF COUNSEL

      David D. Glass for appellants.

      Norman Bard for respondent.
   OPINION OF THE COURT

Memorandum.

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

We agree that absent a sufficient affidavit of merits it was error, as a matter of law, not to grant defendant Hospital’s motion for summary judgment (Kel Mgt. Corp. v Rogers & Wells, 64 NY2d 904; Canter v Mulnick, 60 NY2d 689; Stolowitz v Mount Sinai Hosp., 60 NY2d 685). Moreover, in light of plaintiffs’ argument that the verified complaint should be accepted as an affidavit of merits (CPLR 105 [t]), we note that, except as to matters within the ordinary experience and knowledge of laymen, in a medical malpractice action, expert medical opinion evidence is required to demonstrate merit (cf. Meiselman v Crown Hgts. Hosp., 285 NY 389). This malpractice claim is for negligence in the failure to diagnose cancer and in the performance of an abdominal operation, which are not matters within the ordinary experience of laypersons.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander 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 Carlos Garcia, Appellant, v Eugene S. LeFevre, as Superintendent of Clinton Correctional Facility, et al., Respondents.
    Argued January 10, 1985;
    decided March 28, 1985

      APPEARANCES OF COUNSEL

      Peter W. Avery and David C. Leven for appellant.

      Robert Abrams, Attorney-General (Martin Hotvet, Peter H. Schiff and Robert Hermann of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be reversed and the determination of the Commissioner of the Department of Correctional Services annulled.

Carlos Garcia, an inmate of Clinton Correctional Facility was charged with violations of certain disciplinary rules of that facility. At the disciplinary hearing that followed service upon Garcia of the misbehavior report signed by Correction Officer Johnson, the charges were read to him. He denied the charges, related his version of the incident referred to in the misbehavior report and indicated that he had a witness, another inmate, Juan Gomez, who he claimed was with him at the time of the incident. The hearing officer advised Garcia that he would not be able to question the witness, that the hearing officer would “interview him [and] play the tape of that interview back to [Garcia]”. No reason was given as to why Gomez was not to be produced as a witness at the hearing or as to why the interview would not take place in Garcia’s presence. Gomez was interviewed out of Garcia’s presence and the interview was tape recorded. He gave a version of the incident that was at variance with that given by Garcia. When that tape was played for Garcia, he offered no explanation for the discrepancy. The charges were sustained and Garcia was ordered to “spend 180 days from June 23, 1983 to December 30, 1983” in the Special Housing Unit (SHU) and to lose his commissary and phone home privileges for a like period. Following adverse administrative review, Garcia commenced this article 78 proceeding. A divided Appellate Division confirmed the determination of the Commissioner of Corrections and dismissed the petition. We now reverse.

The regulations promulgated by the Commissioner concerning disciplinary hearings accord to an inmate a conditional right to call witnesses on his behalf (7 NYCRR 254.5 [a]) and provide that “(b) Any witness shall be allowed to testify at the hearing in the presence of the inmate unless the hearing officer determines that so doing will jeopardize institutional safety or correctional goals” (7 NYCRR 254.5 [b]).

Inasmuch as a hearing officer must “determine” that a witness’ presence will threaten institutional safety or correctional goals prior to the exclusion of the witness from the hearing, section 254.5 (b) accords petitioner the right to receive a reason for the exclusion of his witness from the disciplinary hearing. It does not appear, however, that Garcia was given any reason for the exclusion. Nothing in the record of this disciplinary proceeding indicates that the hearing officer made a determination that to allow the witness “to testify at the hearing in the presence of the inmate [would] jeopardize institutional safety or correctional goals”, nor does the record contain any factual support for such a determination. Indeed, the questions on the hearing record sheet that ask “was the witness interviewed in the presence of the inmate charged?” and “If no, was reason for denial (form 2176) given to inmate” were not answered. Thus the Commissioner failed to comply with his own regulations, and his determination must be annulled. It was not necessary for Garcia to object to the procedure followed, as it was not shown that he made a knowing and intelligent waiver of his rights (Matter of Burke v Coughlin, 97 AD2d 862; Matter of Santana v Coughlin, 90 AD2d 947).

In view of this determination we do not reach the other issues raised by appellant.

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

Judgment reversed, with costs, and determination of respondent Commissioner annulled in a memorandum.


text:
    In the Matter of Tyrone Jones et al., Respondents, v Harold J. Smith, as Superintendent of Attica Correctional Facility, et al., Appellants. In the Matter of Nelson Baez, Respondent, v Harold J. Smith, as Superintendent of Attica Correctional Facility, et al., Appellants.
    Argued January 10, 1985;
    decided March 28, 1985

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Martin A. Hotvet, Robert Hermann and Peter H. Schiff of counsel), for appellants.

      Norman Effman, Ellen M. Yacknin, Joseph Kelemen and David C. Leven for respondents.
   OPINION OF THE COURT

Memorandum.

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

The New York Constitution, article IV, § 8, provides in pertinent part that: “No rule or regulation made by any state department * * * except such as relates to the organization or internal management of a state department * * * shall be effective until it is filed in the office of the department of state”. This constitutional mandate is implemented in Executive Law § 102 which requires, inter alia, that a certified copy of such rules or regulations be transmitted to the Secretary of State, and that when a new code, rule or regulation, except as relates solely to the organization or internal management of a department, board, etc., or any amendment thereto is adopted, the original thereof shall be filed in the office of the Department of State.

Effective February 1,1983, Commissioner Thomas B. Coughlin suspended the regulations then existing (7 NYCRR parts 252, 253) pertaining to disciplinary hearings for prisoners and issued Temporary Regulations II, known as the “three tier system”. These superseding regulations were to be temporary only and were not filed with the Secretary of State as provided for in article IV, §8 of the Constitution and Executive Law § 102, the Commissioner contending that they pertain to matters falling within the “organization or internal management” exception to these filing requirements, and thus that the Commissioner had the authority to implement these procedural changes through an administrative order pursuant to Correction Law § 112 and the filed regulations. (See, 7 NYCRR 3.1.)

Disciplinary proceedings against respondents Tyrone Jones, Milton Payne and Nelson Baez, conducted pursuant to these temporary regulations were successfully challenged in article 78 proceedings commenced in Supreme Court, Wyoming County. These determinations of Supreme Court were unanimously affirmed by the Appellate Division, and we now affirm the Appellate Division.

It is settled that “though his rights may be diminished by the needs and exigencies of the institutional environment, a prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime * * * Prisoners may also claim the protection of the Due Process Clause. They may not be deprived of life, liberty, or property without due process of law” (Wolff v McDonnell, 418 US 539, 555, 556). Rules and regulations of correctional institutions that affect a prisoner’s “liberty” interests, as here, may not properly be said to involve matters of “organization or internal management”, thus exempting them from the filing requirements of the New York State Constitution and the Executive Law. Such rules and regulations affect the entire prison population, that segment of the “general public” over which the Department of Correctional Services exercises direct authority, and constitute a “kind of legislative or quasi-legislative norm or prescription which establishes a pattern or course of conduct for the future”. (People v Cull, 10 NY2d 123, 126.)

The requirement that the rules and regulations be filed serves to make them available to the public, to give the public notice thereof and provide a “ ‘common’ and ‘definite place’ * * * where the exact content of such rules and regulations, including any changes, might be found * * * a ‘central’ place * * * ‘where * * * anyone may examine in that one place what the law or rule is that * * * affect[s] his particular interest.’ ” (People v Cull, 10 NY2d 123, 128, supra; Matter of New York State Coalition of Public Employers v New York State Dept. of Labor, 60 NY2d 789, 791.) Thus the filing of the rules and regulations serves to fulfill the “notice” component of due process.

Inasmuch as the Temporary Regulations II, known as the “three tier system” had not been filed with the Secretary of State as required at the time the disciplinary proceedings against Jones, Payne and Baez took place, they were not effective and the proceedings were properly ordered expunged from institutional records. Thus, we need not reach the other issues raised regarding the alleged constitutional deficiency of those proceedings.

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

Orders affirmed, with costs, in a memorandum.


text:
    Andover Realty, Inc., et al., Appellants, v Western Electric Company, Incorporated, Respondent.
    Argued February 4, 1985;
    decided March 28, 1985

      APPEARANCES OF COUNSEL

      Alicia M. Gany and Edward Jaffe for appellants.

      Martin J. McHugh, James M. Hazen, Mark C. Kelly and Alan R. Chesler for respondent.
   OPINION OF THE COURT

Memorandum.

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

The facts are set forth in the Appellate Division opinion. We would add two observations. First, there is no evidence that the defendant had any knowledge that the New York broker was in any way involved in the transaction. Second, New Jersey has a paramount interest in its Statute of Frauds defense not being evaded to establish the liability of a New Jersey landowner in an action brought by a New Jersey resident in another State which does not offer such a defense. New York has little, if any, interest to serve here by preferring its lack of a Statute of Frauds defense (cf. Intercontinental Planning v Daystrom, Inc., 24 NY2d 372).

Granting, as urged by the plaintiffs, that separate documents may be read together to constitute the written brokerage agreement required by New Jersey law to be signed by the landowner, we find no document signed by the defendant that either alone constitutes such an agreement or by reference to other writings could constitute such an agreement. The plaintiffs argue that the letter of March 4,1980, signed by the defendant and sent to 28 brokers, establishes the sender’s intention to enter into a brokerage agreement with the New Jersey plaintiff. The intention may have been present, but the plaintiff declined to meet the letter’s offer and there is no signature by the defendant meeting any counteroffer.

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

Order affirmed, with costs, in a memorandum.

       Designated pursuant to NY Constitution, article VI, § 2.


text:
    Horowitz Bros. & Margareten et al., Appellants, v Jerome Margareten et al., Respondents.
    Argued February 6, 1985;
    decided March 28, 1985

      APPEARANCES OF COUNSEL

      Jacob W. Heller and Ira Kleiman for appellants.

      George G. Gallantz, David Aronson and Allan E. Mayefsky for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, and the judgment of Supreme Court reinstated, without costs.

The finding of the trial court that the February 18, 1910 agreement was not followed by the shareholders over the years more closely comports with the weight of the evidence than does the finding of the Appellate Division. While there is some evidence to the contrary, the scales are tipped by the testimony of witnesses, active in the corporation from 1916 to 1980, that a resolution of March 21, 1938 embodied a change of business practice from that contemplated by the February 1910 agreement. We have considered the plaintiffs’ other contentions and find them without merit.

The 203 pages of plaintiffs’ brief and reply brief invoke our denial of costs. We stress again that our reluctance to impose a limitation on the length of briefs “[t]oo often * * * is merely viewed as a license to substitute volume for logic in an apparent attempt to overwhelm the courts” (Slater v Gallman, 38 NY2d 1, 5).

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Alexander and Lynch concur in memorandum; Judge Kaye taking no part.

Order reversed, etc.

       Designated pursuant to NY Constitution, article VI, § 2.


text:
    Dennis Brugman et al., Appellants, v City of New York et al., Respondents.
    Argued February 11, 1985;
    decided March 28, 1985

      APPEARANCES OF COUNSEL

      Herbert Stutman for appellants.

      Lester E. Fetell for New York City Housing Authority, respondent.
   OPINION OF THE COURT

Memorandum.

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

We need not decide whether the proceedings before the Medical Board warrant a departure from the general rule of issue preclusion. The plaintiff had a full and fair opportunity to be heard. He had no occasion for cross-examination; his was the only evidence before the board. He admitted on argument that he had no other evidence to present and was unaware of any evidence that might be discoverable. The issue of the cause of his medical condition is thus precluded by the board’s determination.

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

Order affirmed, with costs, in a memorandum.

       Designated pursuant to NY Constitution, article VI, § 2.


text:
    Robert W. Carpenter, Appellant, v City of Plattsburgh, Respondent, et al., Defendants.
    Submitted March 4, 1985;
    decided March 28, 1985
   Motion to dismiss appeal denied. Motion for leave to appeal denied as unnecessary. An appeal taken as of right under CPLR 5601 (a) (iii) brings up for review all aspects of the order appealed (Dalrymple v Shults Chevrolet, 39 NY2d 795; Levine v Shell Oil Co., 27 NY2d 797).


text:
    Harlow Apparel, Inc., Respondent-Appellant, v David Pik International, Inc., Appellant-Respondent, et al., Defendant.
    Submitted February 19, 1985;
    decided March 28, 1985
   On the court’s own motion, appeal taken as of right by defendant-appellant David Pik International, Inc., dismissed, without costs, upon the ground that said appellant is not aggrieved by the modification at the Appellate Division (CPLR 5601 [a] [iii]).

Motion for leave to appeal by defendant-appellant David Pik International, Inc., denied, with $20 costs and necessary reproduction disbursements.

On the court’s own motion, cross appeal taken as of right by plaintiff-appellant Harlow Apparel, Inc., dismissed, without costs, upon the ground that cross appellant is not a “party aggrieved” (CPLR 5511).


text:
    In the Matter of A. Harry Kupersmith, Appellant, v Public Health Council of the State of New York et al., Respondents.
    Submitted March 18, 1985;
    decided March 28, 1985
   Third motion for reargument dismissed as untimely, with $20 costs. Application to amend remittitur denied. [See, 63 NY2d 904; 64 NY2d 755, 885.]


text:
    Mia Lancaster, Appellant-Respondent, v Tyrone Kindor, Respondent-Appellant.
    Submitted February 19, 1985;
    decided March 28, 1985
   Motion to dismiss defendant’s cross appeal denied. The Appellate Division’s June 7, 1984 orders vacated the prior stay granted by Supreme Court pursuant to CPLR 5519 (c) and validly conditioned a stay pending appeal to this court on the posting of a bond. Defendant’s failure to post the bond does not, however, deprive this court of jurisdiction over his appeal. Defendant’s papers submitted in opposition to the motion are treated as an application pursuant to CPLR 5519 (c) for the issuance of a stay by this court. A stay of enforcement of the judgment pending the determination of defendant’s appeal is granted, on the condition that defendant serve and file an undertaking in compliance with CPLR 2501 and CPLR 2505 in the amount of $11,000 on or before April 11, 1985. Motion to dismiss plaintiff’s appeal denied.

Judge Kaye taking no part.


text:
    In the Matter of Filomena McIntosh, Appellant, v International Business Machines Inc. et al., Respondents. Workers’ Compensation Board, Respondent.
    . Submitted March 11, 1985;
    decided March 28, 1985
   Motion for leave to appeal dismissed upon the grounds (1) that the motion, insofar as it seeks leave to appeal from the Appellate Division judgment of affirmance dated November 7, 1984, is untimely (see, CPLR 5513 [b]); and (2) that the Appellate Division order dated January 15, 1985 sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Sed-Fab Co., Inc., Respondent, v Simpsonville Mills, Inc., Respondent, and Kerr Finishing Division, Allied Products Corp., Appellant.
    Submitted March 22, 1985;
    decided March 28, 1985

      APPEARANCES OF COUNSEL

      Stephen M. Rathkopf and Rodney A. Brown for appellant.

      Michael D. Blutrich for Sed-Fab Co., Inc., respondent.

      Kreindler & Relkin, P. C., for Simpsonville Mills, Inc., respondent.
   OPINION OF THE COURT

Motion, insofar as it seeks leave to appeal from that portion of the order of the Appellate Division which affirmed the order of Supreme Court granting the petition to consolidate the arbitration proceedings, dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution; motion otherwise denied. Twenty dollars costs and necessary reproduction disbursements to petitioner-respondent.


text:
    Whitmier & Ferris Co., Inc., Appellant, v Buffalo Structural Steel Corp. et al., Respondents.
    Submitted March 21, 1985;
    decided March 28, 1985
   Motions to dismiss the appeal denied.


text:
    John J. Lyons, Respondent, v Cates Consulting Analysts, Inc., Appellant.
    Decided April 2, 1985

      APPEARANCES OF COUNSEL

      Gerald, E. Ross for appellant.

      Donald J. Williamson 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 so much of the memorandum at the Appellate Division as deals with the question as to whether the defense and counterclaim defeat plaintiff’s motion for summary judgment (88 AD2d 526). In view of defendant’s concession that the instrument sued on is one for money only within the meaning of CPLR 3213, we do not pass on that issue.

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


text:
    The People of the State of New York, Appellant, v Richard Baker, Respondent.
    Argued March 18, 1985;
    decided April 2, 1985

      APPEARANCES OF COUNSEL

      Howard R. Relin, District Attorney (Melvin Bressler of counsel), for appellant.

      Edward J. Nowak, Public Defender (Brian Shiffrin of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The appeal should be dismissed. Although the Appellate Division’s order of reversal recited that it was “on the law,” it is evident from its memorandum that its order was made in the exercise of discretion and, therefore, does not satisfy the jurisdictional predicate of CPL 450.90 (2) (a) (People v Johnson, 47 NY2d 124; People v Williams, 31 NY2d 151). Not only did it grant the People leave to resubmit to another Grand Jury, which CPL 210.20 (1) (i) and CPL 210.20 (4) authorize it to do “in its discretion” after dismissal pursuant to CPL 210.40, but also it characterized the Trial Judge’s denial of the 210.40 motion as an “improvident exercise of discretion” not as “an abuse of discretion as a matter of law.” In so doing it substituted its discretion for the improvident discretionary denial of the Trial Judge, as it had the right to do, its authority being as broad as that of the trial court (Matter of Von Bulow, 63 NY2d 221, 225, n; People v Beige, 41 NY2d 60).

Appeal dismissed in a memorandum.


text:
    Robert Michaels, Appellant-Respondent, v Thomas C. Hartzell et al., Respondents-Appellants. (And Another Action.)
    Decided April 2, 1985

      APPEARANCES OF COUNSEL

      Sidney J. Salzman for appellant-respondent.

      S. Paul Battaglia for respondents-appellants.
   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): Appellate Division order of affirmance dated November 7,1984, insofar as appealed from by defendants Hartzell, seeking review of an Appellate Division order dated December 23, 1981 (denominated “Appeal No. 3” by Appellate Division), affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (85 AD2d 901). Appeal by defendants Hartzell otherwise dismissed upon the grounds that the Appellate Division order dated November 7, 1984 affirming the denial of a motion to vacate the November 21, 1983 judgment does not finally determine the action within the meaning of the Constitution and that the remaining prior nonfinal orders of the Appellate Division sought to be reviewed do not necessarily affect the final judgment or do not otherwise meet the requirements of CPLR 5601 (d).

Appeal by plaintiff Michaels dismissed, without costs, upon the ground that plaintiff may not appeal from the November 7, 1984 Appellate Division order of affirmance because he did not appeal to the Appellate Division from the judgment affirmed by that order (Cohen and Karger, Powers of the New York Court of Appeals § 94, at 404).

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


text:
    The People of the State of New York, Respondent, v Orestes Bayron, Appellant.
    Submitted March 18, 1985;
    decided April 2, 1985
   Motion for continuation of bail and for a stay granted, bail continued and execution of judgment stayed pending determination of the appeal herein.


text:
    In the Matter of Cornelius J. Collins, an Attorney, Appellant. Grievance Committee for the Tenth Judicial District, Respondent.
    Decided April 2, 1985
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that it does not lie as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (NY Const, art VI, § 3; CPLR 5601).


text:
    The People of the State of New York, Respondent, v Kenneth Lewis, Appellant.
    Argued March 26, 1985;
    decided April 4, 1985

      APPEARANCES OF COUNSEL

      Kenneth Rabb, Michael J. Obus and Matthew Muraskin for appellant.

      Denis Dillon, District Attorney (Peter R. Shapiro and Anthony J. Girese of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Term should be reversed and a new trial ordered.

The trial court, in its instructions, improperly removed from the jury’s consideration all of the elements of the crimes charged except for that of identification. This error, preserved for our review by defense counsel’s timely objection, his request for curative instructions and a motion made for a mistrial, deprived defendant of a fair trial, for “[n]o matter how conclusive the evidence * * * each of the * * * fundamental facts was for the jury to pass upon” (People v Walker, 198 NY 329,334; see also, People v Steele, 26 NY2d 526, 529). Although the admission by a defendant or his counsel of the existence of any of the elements of the crimes with which he was charged may have excused a court’s removal of these elements from the jury’s consideration (see, People v Walker, supra, p 335; People v Brady, 16 NY2d 186, 189-190) there was no such admission during the trial of this case.

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

Order reversed, etc.


text:
    Patricia A. Arvantides, Appellant, v Stergeos G. Arvantides, Respondent.
    Decided April 4, 1985
    APPEARANCES OF COUNSEL

      John A. DeFrancisco for appellant.

      Henry S. Fraser for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs, to reinstate the trial court’s determination valuing defendant’s dental practice at $178,500 and, as so modified, it should be affirmed, and the case remitted to Supreme Court for the entry of an amended judgment in accordance with this memorandum.

The Appellate Division’s reliance on the testimony of defendant’s expert in determining the value of defendant’s dental practice was erroneous, and constituted an abuse of discretion, because that witness was admittedly unfamiliar with the criteria for assessing the value of this type of professional practice, and needed to review certain background materials and case law before expressing an opinion as to the correct valuation factor to use. Defendant’s counsel indicated that he would recall the witness after that review had been made, but no further testimony was ever offered. The $100,000 figure testified to by the witness was wholly speculative, therefore. Moreover, in relying solely on that figure the Appellate Division also failed to take into account the value of the tangible assets of the practice. Accordingly, the weight of the evidence more nearly comports with the determination of the trial court and we reinstate its finding regarding the value of defendant’s practice.

We reach a different conclusion, however, with respect to plaintiff’s claim that the Appellate Division should not have reduced her share of the value of the practice from approximately 50% to 25%. Although plaintiff’s contributions as a homemaker are indeed worthy of full consideration (see, Domestic Relations Law § 236 [B] [5] [d] [6]), there is no requirement that the distribution of each item of marital property be on an equal or 50-50 basis (see, Ackley v Ackley, 100 AD2d 153, 156; Rodgers v Rodgers, 98 AD2d 386, 390-391; Matter of Ward v Ward, 94 AD2d 908, 909). The Appellate Division did not abuse its discretion, therefore, in taking account of the modest nature of plaintiff’s contributions to the dental practice. When it is considered that plaintiff has also received an award of maintenance, medical expenses, insurance benefits and the more valuable of the two homes owned by the parties, the distribution cannot be said to be inequitable as a matter of law. There is, therefore, no issue for this court to review (cf. Patron v Patron, 40 NY2d 582).

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order modified, with costs to plaintiff, and case remitted to Supreme Court, Onondaga County, for entry of an amended judgment, in accordance with the memorandum herein and, as so modified, affirmed.


text:
    The Corcoran Group, Inc., Appellant, v Guy Morris et al., Respondents.
    Decided April 4, 1985

      APPEARANCES OF COUNSEL

      Stephanie S. Alter and Stanley Alter for appellant.

      Eli R. Mattioli for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (107 AD2d 622; see also, Graff v Billet, 64 NY2d 899).

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


text:
    Abraham Ten Hoeve, Respondent v Board of Education of Dundee Central School District et al., Appellants.
    Argued February 6, 1985;
    decided April 4, 1985

      APPEARANCES OF COUNSEL

      Mae A. D'Agostino for Board of Education of Dundee Central School District, appellant.

      Victor M. DeBonis and Robert D. Stone for Gordon M. Ambach, as Commissioner of Education of the State of New York, appellant.

      Pauline R. Kinsella for respondent.

      Robert J. Rader and Henry F. Sobota for New York State School Boards Association, amicus curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division is reversed, with costs, plaintiff’s motion for summary judgment denied, and the matter remitted to Supreme Court, Albany County, to determine whether age is a bona fide occupational qualification for school bus drivers and plaintiff’s entitlement to back pay and other benefits, if any, which may have resulted from his involuntary retirement at age 65.

Plaintiff is a former school bus driver who was compelled to retire by defendant Board of Education of Dundee Central School District when he reached 65 years of age. Retirement was mandated by rule 156.3 [b] (8 NYCRR) which provides that school bus drivers must be at least 21 but not more than 65 years of age. The rule was promulgated by defendant Commissioner pursuant to the authority of Education Law § 3624 which authorizes him to “determine and define” the qualifications of school bus drivers. Supreme Court held the regulation unconstitutional and ordered plaintiff reinstated. The Appellate Division held the regulation constitutional, citing Vance v Bradley (440 US 93), but ruled that it conflicted with Retirement and Social Security Law § 501 (15) which, as then written, established 70 as the mandatory retirement age. Accordingly, it modified Supreme Court’s order to grant plaintiff partial summary judgment declaring that in the absence of an offer of alternative employment the regulation violated plaintiff’s statutory rights.

During the pendency of this appeal, the Laws of 1984 (ch 296) became law. It amended the Retirement and Social Security Law and Executive Law § 296 (3-a) to permit termination of employment because of age if age is a bona fide occupational qualification “reasonably necessary” to the performance of the employee’s duties (see, Retirement and Social Security Law § 530 [c]; Executive Law § 296 [3-a] [d]). The amendments apply to this litigation (Post v 120 E. End Ave. Corp., 62 NY2d 19, 29; Mayer v City Rent Agency, 46 NY2d 139, 149) and require remittitur for a determination of whether age is a bona fide occupational qualification for school bus drivers and plaintiff’s entitlement to back pay and other benefits, if any, which may have resulted from his involuntary retirement at age 65.

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

Order reversed, with costs, plaintiff’s motion for summary judgment denied, and case remitted to Supreme Court, Albany County, for further proceedings in accordance with the memorandum herein.


text:
    In the Matter of Charles M. Swanick et al., Respondents, v Erie County Legislature et al., Appellants, and Georgeann Redman et al., Intervenors-Respondents.
    Argued March 28, 1985;
    decided April 4, 1985
   Appeal dismissed, without costs, for mootness.

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

       Designated pursuant to NY Constitution, article VI, § 2.


text:
    Spring Valley Gardens Associates et al., Appellants, v Victor Marrero, as Commissioner of the State of New York Division of Housing and Community Renewal, et al., Defendants, and Village of Spring Valley, Respondent. (Action No. 1.) (And Six Additional Actions.)
    Decided April 4, 1985
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that plaintiffs are not parties aggrieved by the final judgment appealed from (CPLR 5511).


text:
    In the Matter of Howard J. Goldman, Appellant, v Robert J. McGuire, as Police Commissioner of the City of New York and Executive Chairman of the Board of Trustees of the Police Pension Fund, Article II, et al., Respondents.
    Argued March 19, 1985; decided
    April 23, 1985

      APPEARANCES OF COUNSEL

      Raymond E. Kerno, Joseph G. Metz and Elizabeth Platte Johnson for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Dana Robbins and Stephen J. McGrath of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (101 AD2d 768).

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

       Designated pursuant to NY Constitution, article VI, § 2.


text:
    In the Matter of Joseph Bagarozza, Appellant, v Robert J. McGuire, as Police Commissioner of the City of New York and as Executive Chairman of the Board of Trustees of the Police Pension Fund, Article II, et al., Respondents.
    Argued March 19, 1985;
    decided April 23, 1985

      APPEARANCES OF COUNSEL

      Raymond E. Kerno, Joseph G. Metz and Elizabeth Platte Johnson for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Dana Robbins, Larry A. Sonnenshein and Edward F. X. Hart of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs (see, Matter of Goldman v McGuire, 64 NY2d 1041, decided herewith).

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

       Designated pursuant to NY Constitution, article VI, § 2.


text:
    David W. Bernstein et al., Respondents, v Victor Freudman et al., Appellants.
    Argued March 22, 1985;
    decided April 23, 1985

      APPEARANCES OF COUNSEL

      Stanley Bryer for appellants.

      Albert H. Brodkin for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (102 AD2d 805).

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

       Designated pursuant to NY Constitution, article VI, § 2.


text:
    Browning-Ferris Industries of New York, Inc., Respondent, v County of Monroe, Appellant.
    Argued March 19, 1985;
    decided April 23, 1985

      APPEARANCES OF COUNSEL

      Bruce L. Maas for appellant.

      Gordon J. Lipson for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (103 AD2d 1040).

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

       Designated pursuant to NY Constitution, article VI, § 2.


text:
    The People of the State of New York, Respondent, v Warren Lane, Appellant.
    Argued March 20, 1985;
    decided April 23, 1985

      APPEARANCES OF COUNSEL

      Lisa Oppedisano for appellant.

      Sol Greenberg, District Attorney (George H. Barber of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The police did not violate the defendant’s right to counsel under the State Constitution by obtaining the statement after the victim had signed a felony complaint. Although the right to counsel attaches once the criminal action has been commenced (People v Blake, 35 NY2d 331; People v Settles, 46 NY2d 154) that stage had not been reached in this case. As we noted in People v Samuels (49 NY2d 218), in this State the criminal action commences with the filing of the accusatory instrument, including the felony complaint (CPL 1.20 [1], [8], [17]). Thus in the case now before us when the accusatory instrument had been signed but had not been filed in court, no criminal action had been commenced and the defendant’s right to counsel had not attached at the time of the questioning.

We have considered the defendant’s other arguments and find them to be without merit.

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

Order affirmed in a memorandum.