text:
    The People of the State of New York, Respondent, v Leon West, Appellant.
    Argued February 7, 1978;
    decided March 23, 1978

      APPEARANCES OF COUNSEL

      Douglas P. Rutnik, Public Defender (Paul E. Cheeseman and Frank V. Bífera of counsel), for appellant.

      Sol Greenberg, District Attorney (Melissa L. Campbell of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

To establish probable cause based upon an informant’s tip, whether for issuance of a search warrant or for a warrantless arrest and search conducted in exigent circumstances, it must be shown that the informant is credible or reliable, and also that he had a sufficient basis for concluding that the subject of the tip is engaged in illegal activities. (See Aguilar v Texas, 378 US 108, 114; People v Wirchansky, 41 NY2d 130, 131; People v Hanlon, 36 NY2d 549, 556; People v Castro, 29 NY2d 324, 326.)

In the present case, the informant apprised the police of the fact that the defendant was trafficking in drugs. He also informed the police that the defendant was traveling to and from New York City almost daily to buy drugs, and that he was using the trains and busses for transportation. He did not know, however, where the drugs were being kept, nor at what time the defendant made his trips to New York City. In fact, the informant never revealed how he came to acquire this information. Since the informant failed to disclose the basis for his acquisition of this information, the Aguilar test was not satisfied. (People v Wirchansky, 41 NY2d, at p 133, supra.) We cannot presume from the informant’s statement that his information was gleaned from personal observation. (See People v Hendricks, 25 NY2d 129, 136.)

The People seek, however, to bolster the informant’s tip through the independent observations of the police. (See, e.g., People v Brandon, 38 NY2d 814, 815; People v Slaughter, 37 NY2d 596, 599.) Immediately prior to the officers’ arrest and search of the defendant, they observed the defendant and a woman enter a cab which proceeded to Albany. Along the route, the police stopped the cab and searched the defendant. Besides this testimony, the only other testimony given by the arresting officers concerning their independent observations of the defendant related to their surveillance of the defendant’s residence on the previous day. Their surveillance disclosed nothing more significant than the occurrence of a conversation between the defendant and an unknown party in front of the defendant’s residence.

Clearly, the independent observations of the arresting officers were insufficient to bolster the information conveyed by the informant. None of their observations served to corroborate the informant’s statement that defendant was trafficking in drugs. The defendant’s presence at the Rensselafer train station must be considered equivocal at best. (See People v Corrado, 22 NY2d 308, 311.) Having no basis to credit the informant’s tip, either by the informant’s statement as to how he obtained his information or by their own independent observations, the police lacked probable cause to arrest and search the defendant. His conviction must be reversed and the indictment dismissed.

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

Order reversed, etc.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York, Respondent, v Elroy Hendrix, Also Known as Dennis Bronson, Appellant.
    Argued February 10, 1978;
    decided March 23, 1978

      APPEARANCES OF COUNSEL

      Anna M. Perry, John F. Middlemiss, Jr., and Leon J. Kesner for appellant.

      Patrick Henry, District Attorney (Daniel J. Murphy of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

While the trial court erred in allowing the officer to testify as to the former codefendant’s extrajudicial statements, which inculpated defendant, the error was harmless beyond a reasonable doubt in view of the overwhelming proof of guilt. (People v Crimmins, 36 NY2d 230.) As to the trial court’s denial of defendant’s pretrial motion to preclude cross-examination regarding recent convictions for robbery and possession of stolen property, it cannot be said that the court abused its discretion. (People v Schwartzman, 24 NY2d 241.)

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

Order affirmed in a memorandum.


text:
    In the Matter of William J. Fitzgerald, Appellant, v. Alfred J. Libous, as Mayor and Commissioner of Public Safety of the City of Binghamton, et al., Respondents.
    Argued January 13, 1978;
    decided March 23, 1978
    APPEARANCES OF COUNSEL

      John J. Cromie for appellant.

      Patrick J. Raymond, Corporation Counsel (John W. Park of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs. Petitioner seeks to set aside a determination of respondents on the ground that the notice of charges lacked the requisite specificity. Subdivision 2 of section 75 of the Civil Service Law provides, in pertinent part, that "[a] person against whom removal or other disciplinary action is proposed shall have written notice thereof and of the reasons therefor, [and] shall be furnished a copy of the charges preferred against him”. The notice must sufficiently apprise the party of the charges against him so as to enable him to adequately prepare and present a defense (cf. Matter of Shapiro v Board of Regents, 16 NY2d 783; Matter of Weiner v Board of Regents, 3 AD2d 113). The notice served on petitioner clearly charged him with a pattern of excessive drinking which rendered him unable to properly perform the normal functions required of a fireman in his position. The charges alleged, inter alia, a deteriorating attendance record, a degenerating physical condition, lack of mental alertness, and a display of indecisiveness as a firefighter accompanied by a lack of ability to initiate action. These charges placed his competency directly in issue and were detailed enough to fairly enable the preparation of a defense. It is unnecessary to make a distinction regarding specificity, as the Appellate Division did, between charges of misconduct and charges of incompetency, since here the allegations of incompetency were laid plainly before petitioner in the notice served. Although a fair response to the request for a bill of particulars would have been desirable, and should not be so cavalierly handled in the future, under the circumstances of this case it was neither required nor necessary.

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

Order affirmed.


author: Fuchsberg, J.

text:
    Avery Gillette, Respondent, v Heinrich Motors, Inc., Appellant.
    Argued February 6, 1978;
    decided March 23, 1978

      APPEARANCES OF COUNSEL

      Frank H. Penski, David L. Hoffberg and Michael R. Lind-burg for appellant.

      James S. Grossman and Bette M. Gould for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (55 AD2d 841).

Concur: Chief Judge Breitel and Judges Gabrielli, Jones, Wachtler and Cooke. Judge Fuchsberg dissents and votes to reverse in the following opinion in which Judge Jasen concurs.

Fuchsberg, J.

(dissenting). Adopting, as we must, the affirmed findings that the defendant’s offer of fringe benefits ripened into a binding contract and that the "New Car Salesman’s Plan” (hereinafter Plan) correctly describes its terms, the interpretation of that contract presents a question of law on the basis of which I believe the order of the Appellate Division should be reversed and the complaint dismissed. The reasons for this conclusion are spelled out by the now undisputable facts, which include the contract in this case (Brown Bros. Elec. Contrs. v Beam Constr. Corp., 41 NY2d 397, 400; Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285, 291).

Plaintiff is a car salesman. In 1972 he was employed as such by defendant, a family-owned corporation in the business of selling new and used automobiles. In March of that year, during a meeting it called primarily to announce sales prices and commission rates on its various motor vehicles for the forthcoming year, the defendant took the occasion, on its own initiative and not in response to any demand by the employees, to advise them that it would henceforth provide certain fringe benefits, including life insurance, temporary disability insurance and total disability insurance.

It must have been clear when they were presented, that these benefits would be payable pursuant to the terms of policies of insurance purchased by the employer, since a representative of the insurance carrier was introduced at the meeting and then and there distributed individual insurance applications for completion by each of the employees. Some time thereafter, on June 1, 1972, the employer mailed each employee a copy of the so-called Plan, which was in the form of a pamphlet it prepared without any professional assistance and which the trial court later found to contain the substance of the information on this subject that it had communicated orally at the meeting.

The trial court, focusing on the Plan alone, held that, since it was promulgated by the defendant, ambiguities were to be resolved in favor of the plaintiff, and therefore, that it must be read to impose an unconditional obligation for payment of the stated amount of total disability on the employer itself.

That analysis, I respectfully suggest, does not give sufficient consideration to whether the Plan, fairly read, is to be construed as incorporating by reference the contents of the insurance policy. Bearing in mind the undisputed circumstances of the Plan’s issuance, there is a wealth of language, logic and common sense to support a reading that is in harmony with the provisions of the policy.

It must be remembered that the Plan was voluntary and not the result of collective bargaining or other arm’s length negotiation; the whole tenor of the occasion of its offer was one of welcome acceptance of whatever the employer proffered on the matter of disability coverage. Furthermore, examination of the Plan reveals that the portion containing the disability provision and other fringe benefits is, both physically and substantively, a relatively incidental part of its contents. In the main, the document deals with unrelated matters such as pricing and current earnings, manifestly the chief concern of the parties at the time.

To treat the Plan as though it created an independent contractual obligation on the employer beyond its procurement of the policy of which it had advised its employees is, therefore, in my view, to give it a strained interpretation. As the plaintiff well knew, his employer was not in the insurance business, but engaged solely in the conduct of an automobile dealership. The Plan’s précis description of the disability benefits would hardly have been the medium for setting forth the customary exclusions which even laymen of little sophistication expect to find in insurance policies (cf. 30 NY Jur, Insurance, § 1093). All the more is this so in the case of the plaintiff and his fellow automobile salesmen, who would be especially alert to such matters; insurance binders and transfers of policies, albeit only with respect to automobiles, were part and parcel of the routine of almost any sale one of them would close. Indeed, the Trial Judge concluded that plaintiff "had to understand that insurance was part of the Plan”. When the representative of the insurance company was introduced at the March meeting, it was as the "agent for Union Mutual Insurance Company, who is the company that [is] going to insure our [disability] salary continuation program”. And, directly above his signature on the application plaintiff signed on that occasion, appear the following words: "I hereby apply to Union Mutual Life Insurance Company for group insurance as presented to me”.

The words in which the other benefits of the Plan are described also make evident that reference to other documents, especially the applicable insurance policies, is required if the Plan is to be fully comprehended. Thus, the life insurance policy is termed "basic” and "additional” and the medical payments coverage as Blue Cross and Blue Shield "basic benefits”. It is in the context of a document that suggests such a general scheme of incorporation by reference of other documents that the provision of the Plan at issue must be read (cf. Empire Props. Corp. v Manufacturers Trust Co., 288 NY 242, 248 [Lehman, J.]). And, as to the construction of ambiguities, if ambiguities can here be said to exist, the general rule resolving them against the draftsman can hardly be applied with sufficient force to tip the scales against the defendant under the circumstances which gave rise to the agreement in this case (Atwater & Co. v Panama R. R. Co., 246 NY 519, 524).

Finally, the disability policy provision which concerns us here is not in conflict with either the language or spirit of the Plan. The exclusion it effected was one which almost invariably is part of such insurance and there is nothing to indicate that this plaintiff was in any way misled because the policy’s clause was not repeated directly in the Plan. Indeed, for the defendant to have intended to assume an all-embracing, retroactive responsibility for all its employees’ unnamed past disabilities would have been most extraordinary. Even an insurance carrier might not find it possible to weather the financial storm that could result from an imposition on it of so broad-sweeping and unanticipated a liability. Much less is an employer, especially one with a limited number of employees among whom to spread the risk, to be so lightly deemed to have intended any such onerous and open-ended obligation rather than one limited by a fixed and actuarially ascertainable premium.

Order affirmed, etc.


text:
    Underhill Construction Corp., Appellant, v New York Telephone Company et al., Respondents, et al., Defendants.
    Argued February 14, 1978;
    decided March 23, 1978

      APPEARANCES OF COUNSEL

      David E. Montgomery, Stuart M. Levine and Gary L. Rubin for appellants.

      Robert W. Gottlieb and Douglas N. Gordon for New York Telephone Company, respondent.

      Andrew P. Davis and Richard T. Andrias for Charles S. Haines and another, doing business as Haines, Lundberg & Waehler, respondents.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (56 AD2d 760).

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


text:
    In the Matter of Isaac Axel et al., and All Others Similarly Situated, Respondents, v Board of Education of the City of New York et al., Appellants.
    Argued February 13, 1978;
    decided March 23, 1978

      APPEARANCES OF COUNSEL

      Allen G. Schwartz, Corporation Counsel (Susan L. Bloom, Leonard Koerner and Michael S. Cecere of counsel), for appellants.

      Thomas C. Greble and James R. Sandner for respondents.
   OPINION OF THE COURT

Order reversed, with costs, and judgment of Supreme Court, Kings County, reinstated on the opinion by Mr. Justice Arthur S. Hirsch at Special Term.

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


text:
    The People of the State of New York, Appellant, v John Savino, Respondent.
    Argued February 16, 1978;
    decided March 23, 1978

      APPEARANCES OF COUNSEL

      Denis Dillon, District Attorney (Paula Schwartz Frome, William C. Donnino, W. Russell Corker and Andrew C. Morganstern of counsel), for appellant.

      John Joseph Sutter and Ruth C. Balkin for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Term should be reversed, and the case remitted to that court for consideration of the facts (CPL 470.40, subd 2, par [b]) and as well such issues of law as were not previously considered in view of the nature of that court’s prior disposition.

When it appeared that numerous tape recordings would be offered by the People on the trial of this case, the trial court directed the District Attorney to prepare transcripts of the tapes. After two weeks of work the court was informed that an additional two months would be required to complete the transcription of all the tapes. After unsuccessfully soliciting practical suggestions from both prosecution and defense as to the best manner in which to proceed with the presentation of evidence at the trial, the court directed that the case proceed to trial with such transcripts as had then been prepared. Defense counsel, who had listened to all the tape recordings before the trial and who had been informed which tapes had been transcribed, neither requested additional transcription nor objected to the procedure ordered by the court.

Proceeding under this arrangement, the prosecution offered 42 tapes of recorded telephone conversations which were admitted into evidence and played to the jury. Defendant had participated in 18 conversations which were on six tapes, all of which had been transcribed. Nine additional tapes had been transcribed. Meter readings were noted with respect to those portions of the untranscribed recordings which were played to the jury.

At the conclusion of the five-week trial the court dismissed all but four counts of the indictment. On this reduced submission the court carefully instructed the members of the jury that in arriving at their verdict they could only consider the contents of the six transcribed tapes which included recordings of defendant’s conversations. Defendant was thereafter found guilty on four misdemeanor counts.

The Appellate Term upheld defendant’s contention that the record was so incomplete as to preclude adequate appellate review, reversed the conviction on the law and ordered a new trial, noting that no questions of fact had been considered. We now reverse and reinstate the conviction, concluding that no claim of prejudicial error, if any there be, with respect to the lack of transcription has been preserved for appellate review.

Acknowledging that special problems may arise in consequence of the introduction, on trial or at hearings, of tape recordings without transcription, and recognizing that practical difficulties may attend such practice, especially in instances of their extended use, it does not follow that use of untranscribed tape recordings for which proper foundation has been laid is necessarily or even usually suspect. In view of the improving technologies of making and duplicating such recordings, often they offer a useful and effective method of recorded communication. Attention to practicalities in connection with their use is always relevant, but it should not be assumed that such use always or even frequently will raise issues of the dimension of legal error.

These considerations aside, as previously noted, defense counsel in this case was fully informed of the court’s proposed trial procedure and was afforded ample opportunity to consider and to make suggestions or to object. He registered no protest (CPL 470.05, subd 2). Beyond that, while objections were made to the admission of the tape recordings in their entirety and before the tapes were played, most of the objections raised related to recordings which had been transcribed, and no objections were interposed during the playings of the recordings. Thus, the circumstances are not such as to prevent or impair adequate appellate review of the trial court’s evidentiary rulings (contrast People v Columbo, 24 AD2d 505, 506).

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

Order reversed and case remitted to the Appellate Term, 9th and 10th Judicial Districts, for further proceedings in accordance with the memorandum herein.


text:
    Presidential Realty Corporation et al., Appellants, v Michael Square West, Ltd., et al., Respondents.
    Argued February 15, 1978;
    decided March 23, 1978

      APPEARANCES OF COUNSEL

      Dennis C. Krieger for appellants.

      David H. Berman for respondents.
   OPINION OF THE COURT

Memorandum.

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

Although the nature and purpose of a solitary business meeting conducted for a single day in New York may supply the minimum contacts necessary to subject a nonresident participant to the jurisdiction of our courts (see, e.g., Riener Co. v Schwartz, 41 NY2d 648; cf. Parke-Bernet Galleries v Franklyn, 26 NY2d 13), physical presence alone cannot talismanically transform any and all business dealings into business transactions under CPLR 302 (subd [a], par [1]) (e.g., McKee Elec. Co. v Rauland-Borg Corp., 20 NY2d 377; cf. Glassman v Hyder, 23 NY2d 354).

During the course of dealings between the parties in this action, the material terms of a contract for the sale of a Mobile, Alabama real estate development were negotiated in Atlanta, New Orleans and Mobile. The plaintiff purchaser alleged, however, that prior to closing the deal it had requested further talks at its New York office. This meeting allegedly resulted in conciliatory modifications incorporated into an agreement which the defendants’ representative concededly signed at the end of the meeting. The deal was later closed, not in New York but in Mobile.

Jurisdiction, if any, under New York’s long-arm statute would appear in this instance to turn on the extent of defendants’ activities in New York State at the alleged conference held in White Plains on June 25, 1973 (see, e.g., Riener Co. v Schwartz, 41 NY2d 648, 653, supra). No reliance can be placed on any attendant negotiations on that day since no proof is tendered by one having personal knowledge either of the fact or the extent of any negotiations. Therefore on the record before us there is no proof of any contacts with this State other than the fact that the modification letter and the agreement were signed in New York. This is not sufficient to confer jurisdiction (Hi Fashion Wigs v Hammond Adv., 32 NY2d 583, 586; cf. Riener Co. v Schwartz, supra).

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

Order affirmed.


text:
    Francis J. Dundon et al., Respondents, v Presbyterian Hospital, Appellant, and Edgar M. Housepian, Respondent.
    Argued February 9, 1978;
    decided March 23, 1978
    APPEARANCES OF COUNSEL

      James M. Furey and Clifford B. Keller for appellant.

      Charles Kramer for plaintiffs-respondents.

      Edward J. Pacelli and William C. Morris for defendant-respondent.
   OPINION OF THE COURT

Order affirmed, with costs (see Comiskey v Arlen, 43 NY2d 696). Question certified answered in the affirmative.

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


text:
    The People of the State of New York, Respondent, v Angel Marrero, Appellant.
    Argued February 13, 1978;
    decided March 23, 1978

      APPEARANCES OF COUNSEL

      Richard A. Kerner for appellant.

      Mario Merola, District Attorney (Joyce Marie Andren of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed. In light of the findings below, which are beyond review by this court, the order must be affirmed.

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


text:
    In the Matter of the Arbitration between Triborough Bridge and Tunnel Authority, Appellant, and Bridge and Tunnel Officers Benevolent Association, Inc., Respondent.
    Argued February 13, 1978;
    decided March 23, 1978

      APPEARANCES OF COUNSEL

      Joseph Bulgatz and Gerald H. Horowitz for appellant.

      Sidney J. Guran and Roy Broudny for respondent.
   OPINION OF THE COURT

Memorandum.

Order should be affirmed, with costs.

There is nothing in statute, decisional law or public policy to interdict the arbitration of the subject matter of this dispute, revolving as it does about such questions as the validity of the authority’s announcement of a policy not to compensate bridge and tunnel officers for making off-duty arrests as peace officers (see CPL 1.20, subd 33, par [x]; 140.25) and whether the particular arrest made by Officer Keno was job related and so constituted on-duty time. Examination of the language of the parties’ arbitration agreement then discloses that it clearly and unequivocally encompasses the dispute at bar. (Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.], 42 NY2d 509.)

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

Order affirmed.


text:
    Frederick E. Chalone et al., Appellants, v State of New York, Respondent.
    (Claim No. 57083.)
    Argued February 14, 1978;
    decided March 23, 1978

      APPEARANCES OF COUNSEL

      Walter J. Wiggins for appellants.

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

Order affirmed, with costs, on the memorandum at the Appellate Division (53 AD2d 961).

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


text:
    Frieda Lane et al., Appellants, v Ewald B. Nyquist, Individually and as New York State Commissioner of Education, et al., Respondents.
    Submitted January 23, 1978;
    decided March 23, 1978
   Motion for leave to appeal pursuant to CPLR 5602 (subd a, par 2) denied at this time, in the exercise of discretion.


text:
    In the Matter of Baumann & Sons, Inc., et al., Respondents, v Board of Education, Northport-East Northport Union Free School District, et al., Appellants.
    Submitted February 6, 1978;
    decided March 23, 1978
   Motion to dismiss the appeal taken as of right herein denied (CPLR 5520, subd [c]). [See 59 AD2d 531.]


text:
    In the Matter of Thomas M. Fahey, Doing Business as Castle Rest Nursing Home, Appellant, v Charles J. Hynes, as Deputy Attorney-General of the State of New York, Respondent.
    Submitted March 6, 1978;
    decided March 23, 1978
   Motion by respondent to dismiss the appeal herein granted to the extent that the appeal is transferred to the Appellate Division, Fourth Department. A direct appeal does not lie where questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3, subd b, par [2]; § 5, subd b; CPLR 5601, subd [b], par 2; Matter of Bartsch v State of New York, 33 NY2d 938).

Motion for a stay dismissed as academic.


text:
    In the Matter of James Gibides, Jr., Respondent, v. Robert Powers, as Chief of Police of the Town of Camillus, et al., Appellants.
    Submitted February 13, 1978;
    decided March 23, 1978
   Motion to dismiss the appeal herein denied.


text:
    In the Matter of James McKeon et al., Respondents, v Superintendent of Banks of the State of New York in Possession of the Business and Property of the Municipal Credit Union of the City of New York, et al., Appellants.
    Submitted March 13,1978;
    decided March 23, 1978
   Motion to withdraw the appeal herein granted.


text:
    In the Matter of A. Lawrence Washburn, Jr., et al., Appellants, v Harrison J. Goldin, as Comptroller of the City of New York, Respondent.
    Submitted February 13, 1978;
    decided March 23, 1978
   Motion to dismiss the appeal herein denied.


text:
    The People of the State of New York, Respondent, v Stafford Farmer, Appellant.
    Submitted March 13, 1978;
    decided March 23, 1978
   Motion to withdraw the appeal herein granted and appeal withdrawn.


text:
    The People of the State of New York, Appellant, v Kevin L. Thew, Respondent.
    Submitted February 7, 1978;
    decided March 28, 1978

      APPEARANCES OF COUNSEL

      John R. King, District Attorney (Bridget R. Rahilly of counsel), for appellant.

      Raymond P. Jurina, Jr., for respondent.
   OPINION OF THE COURT

Memorandum.

The order appealed from should be affirmed. The People appeal from an order of the Appellate Term, affirming an order of the Town Court of the Town of East Fishkill, which dismissed three simplified traffic informations charging defendant with various traffic violations allegedly committed on a public highway. The only issue before this court is whether the situs of the incident is a "public highway” as defined in section 134 of the Vehicle and Traffic Law. We agree with the courts below that it is not.

The incident occurred in the parking lot of a tavern. The building is a two-story wooden structure; the bottom floor is used as the tavern and the second floor contains a one-family residential unit. The parking lot is composed of dirt and gravel, measures approximately 150 feet by 45 feet, and is located in front of the building. Its use is restricted to patrons of the tavern and to the second-floor tenants of the building. When the tavern is closed, parking is restricted to these tenants and their guests.

Section 134 of the Vehicle and Traffic Law defines a public highway as "[a]ny highway, road, street, avenue, alley, public place, public driveway or any other public way.” The People contend that the parking lot described above is a "public place” and is thus a "public highway”. We disagree. While the definition might appear to be rather broad, the parking lot involved in this case simply does not come within its bounds. The language of the statute indicates that for something to be a public highway, it must be a public way; that is, it must be a way "over which the public have a general right of passage” (People v County of Westchester, 282 NY 224, 228, quoting Elliott on Roads and Streets, § 3, p 4; see, also, Sylvester v Brockway Motor Truck Corp., 232 App Div 364). In light of the size and restricted use of this privately owned parking lot, it is clear that it is not a public way, and thus cannot be a public highway.

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

Order affirmed.


text:
    The People of the State of New York, Respondent, v Francisco Soto, Appellant.
    Argued February 15, 1978;
    decided March 28, 1978
    APPEARANCES OF COUNSEL

      Gary G. Mund and Walter Mund for appellant.

      John J. Santucci, District Attorney (A. Brent Blacksburg of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. The testimony at trial clearly established that defendant was driving at an excessive rate of speed on a moderately traveled metropolitan street, while engaged in a "drag race” with another vehicle. Defendant’s car smashed into and over the victim’s vehicle which was stopped at a traffic signal, destroying that car and killing its driver. This evidence unquestionably established defendant’s failure to perceive a substantial and unjustifiable risk, constituting a "gross deviation from the standard of care that a reasonable person would observe in the situation” (Penal Law, § 15.05; People v Haney, 30 NY2d 328) and was, therefore, sufficient to sustain the conviction for criminally negligent homicide.

Defendant contends that reversible error resulted from the prosecution’s inability to produce the vehicle for inspection. The Trial Judge carefully reviewed the reasons behind the failure to produce and found that the police, after notifying the owner of his right to claim the vehicle, to which there was no response, disposed of the vehicle in good faith and in full accordance with legal police procedure. We see no reason to disturb this determination. The defendant’s challenge to the adequacy of the indictment (CPL 200.50, subd 7), as distinguished from the sufficiency of the evidence presented to the Grand Jury, was not timely raised and is thus not preserved for our review. We have considered defendant’s other contentions and find them to be equally without merit.

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

Order affirmed.


text:
    In the Matter of David Markowitz, Doing Business as Clover Leaf Restaurant, Appellant, v State Tax Commission, Respondent.
    Argued February 16, 1978;
    decided March 28, 1978

      APPEARANCES OF COUNSEL

      Gary M. Sobo and Alexander Appelbaum for appellant.

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

Judgment affirmed, with costs, on the memorandum at the Appellate Division (54 AD2d 1023).

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


text:
    The People of the State of New York, Respondent, v. Jerome Weathersby, Appellant.
    Argued February 16, 1978;
    decided March 28, 1978

      APPEARANCES OF COUNSEL

      Kurt T. Sajda and Nathaniel A. Barrell for appellant.

      Edward C. Cosgrove, District Attorney (John J. De Franks of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Inasmuch as the offenses of criminal possession of a controlled substance in the third degree and criminal sale of a controlled substance in the third degree are both class A-III felonies subject to the same penal sanctions, the former cannot be a lesser inclusory concurrent count with respect to the latter within the meaning of CPL 300.40 (subd 3, par [b]). CPL 300.40 makes provision with respect to lesser and greater counts but not for equivalent counts. Nor do we find any merit to defendant’s contention that there is insufficient evidence to sustain his convictions.

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

Order affirmed.


text:
    Harry B. Frank et al., Appellants, v State of New York et al., Respondents.
    Argued March 22, 1978;
    decided March 28, 1978

      APPEARANCES OF COUNSEL

      Fred Queller for appellants.

      Louis J. Lefkowitz, Attorney-General (Daniel M. Cohen and Samuel A. Hirshowitz of counsel), for respondents.

      Henry J. Smith, Thomas D. Warren and Gerald Nolan for New York State Bar Association, amicus curiae.

      Michael A. Cardozo, Bettina B. Plevan and Richard N. Gilberg for Association of the Bar of the City of New York, amicus curiae.

      Roger Bryant Hunting for Committee for Modern Courts, Inc., and others, amici curiae.

   OPINION OF THE COURT

Memorandum.

The order appealed from should be affirmed, without costs, on the opinion of Mr. Justice J. Irwin Shapiro at the Appellate Division. In addition we would note our approval of the conclusion in that opinion (61 AD2d 466, n 2) that under the Constitution it is only the succeeding Legislature, here the 1977 Legislature, which had the authority and "the duty * * * to submit each proposed amendment or amendments to the people * * * in such manner” as it shall prescribe (NY Const, art XIX, § 1). In our view that is precisely what the Constitution provides and, of course, that is exactly what was done in this case.

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

Order affirmed, without costs, in a memorandum.


text:
    Margo Williams, Appellant, v Robert A. Arpie et al., Respondents.
    Argued February 8, 1978;
    decided March 28, 1978

      APPEARANCES OF COUNSEL

      Jack Weiner and Brian L. Findholt for appellant.

      Vincent L. De Biase for Robert A. Arpie, respondent.

      John N. Iannuzzi for Angela Migliore and others, respondents.

      Louis J. Lefkowitz, Attorney-General (Peter J. Dooley and Ruth Kessler Toch of counsel), for John Hale, respondent.

      Kevin Kennedy for Edward Head, respondent.
   OPINION OF THE COURT

Memorandum.

The order appealed from should be affirmed, with costs. The causes of action alleged in plaintiff’s complaint, be they characterized as defamation, prima facie tort, conspiracy, or tortious interference with a contract are all time-barred, for the reasons stated by the Appellate Division. It should also be noted that plaintiff has failed to allege the existence of any contract of employment between herself and the St. Cabrini Home. Finally, with respect to the relationship between plaintiff as a nun and her order, the Missionary Sisters of the Sacred Heart, it suffices to note that plaintiff has not alleged the existence of any express contract between herself and the order cognizable in a court of law. Absent any such express contract, disputes arising from the relationship between a member of a hierarchical religious organization and that organization are not subject to resolution in the civil courts (see Baxter v McDonnell, 155 NY 83, 97-100). Indeed, to hold otherwise might be to run afoul of the constitutional proscriptions against State interference with the internal affairs of a religious society (see Serbian Orthodox Diocese v Milivojevich, 426 US 696).

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

Order affirmed.


text:
    In the Matter of the Claim of Emily Collins, Respondent, v Aluminum Company of America et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued January 13, 1978;
    decided March 28, 1978
    APPEARANCES OF COUNSEL

      Benedict T. Mangano for Aluminum Corporation of America, appellant.

      John M. Cullen and George Cholet for Special Disability Fund, appellant.

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

Memorandum.

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

Said order affirmed three decisions of the Workmen’s Compensation Board: one, which found that the "claim for compensation was timely filed by the claimant within ninety days after he first had knowledge that the disease was totally disabling and was due to the nature of the employment, in accordance with the provisions of section 44-a of the Workmen’s Compensation Law”; a second, "based on the medical report and testimony of Dr. Brock, Expert Chest Consultant, that the claimant’s occupational silicosis contributed to and caused the decedent’s death”; and a third, pursuant to section 15 (subd 8, par [ee]) of said law, that the claim is the liability of the Special Disability Fund provided for under subdivision 8 of said section and not the Fund for Reopened Cases under section 25-a of said law. (The date of disablement had been found to be August 28, 1957.) One Justice dissented insofar as the order "affirms the award of disability compensation”.

Employee Collins worked at the employer’s aluminum factory at Buffalo from 1950 to August 28, 1957, when the plant closed. During this period of employment he was exposed to silica dust and thereafter never worked again. Although operated upon in 1954, after which a diagnosis of tuberculoma with antraco-silicosis was made, Collins was informed that he had nothing to worry about. The employer’s local medical director, who had seen Collins on numerous occasions, testified there wasn’t any reason to believe he had silicosis on the basis of reports of X rays taken subsequent to the surgery in 1954, 1955, 1956 and 1957. In 1958, at a hospital, the employee first learned he had silicosis and thereafter was found to be suffering from prostatic hypertrophy, pyelonephritis, diabetes, emphysema and hepatitis. Collins filed his claim for compensation on July 7, 1969, shortly after being at a hospital where an entry reading "Dyspnea on exertion * * * Will apply for compensation” was made. Death occurred on May 16, 1973.

Section 44-a of the Workmen’s Compensation Law provides that in the case of an employee whose disability or death is due to silicosis the right to compensation shall not be barred "by the failure of the employee or his dependents to file a claim within the two-year period prescribed by section twenty-eight of this chapter, provided such claim shall be filed after such period of two years and within ninety days after disablement and after knowledge that the disease is or was due to the nature of the employment.” At the time of Collins’ disablement and eventual death, the Workmen’s Compensation Law restricted its protection, in respect to disabilities sustained or deaths incurred by employees resulting from occupational silicosis, to those employees who were totally disabled from silicosis or who died from the disease (see former Workmen’s Compensation Law, § 3, subd 2, par 28 [L 1947, ch 431, eff July 1, 1947], renumbered par 29 [L 1971, ch 665, eff July 1, 1971] and amended by deleting words "resulting in total disability or death” [L 1974, ch 577, eff July 1, 1974]; see, also, Matter of Smith v Ingersoll-Rand Co., 50 AD2d 988; Matter of Chatman v Acme Steel & Malleable Iron Works, 16 AD2d 726; cf. Matter of Ward v Merritt, Chapman & Scott, 30 AD2d 1010). Manifestly, therefore, the 90-day limitation of section 44-a started to run after this employee knew that he was totally disabled as a result of silicosis, or that the silicosis contributed to or aggravated another condition and that the combination resulted in total disability, and that his silicosis "disease is or was due to the nature of the employment.” It is presumed, in the absence of substantial evidence to the contrary, that the notice required by statute was given (Workmen’s Compensation Law, § 21, subd 2; Matter of Dorb v Stearns & Co., 180 App Div 138, 140; 66 NY Jur, Workmen’s Compensation, § 587, p 261; see, also, Matter of Hansen v Flinn-O'Rourke Co., 192 App Div 878, 880; Matter of Cimmino v Clark & Son, 184 App Div 745, 747).

Here, the Workmen’s Compensation Board had a right to find, based on a lack of substantial evidence to the contrary, that Collins’ notice was filed within 90 days after he acquired knowledge that his silicosis was totally disabling and was due to the nature of his employment (cf. Matter of Slade v Perkins, 42 AD2d 667, affd 33 NY2d 988; see, also, Matter of Citny v Atlas Steel Casting Co., 33 AD2d 853; Matter of Ward v Merritt, Chapman & Scott, 30 AD2d 1010, supra). The October 18, 1965 entry in a hospital record, relied on by the employer, does not reveal the source of the information or that knowledge was imparted to or possessed by Collins.

The testimony and report of an expert consultant on dust diseases furnished substantial evidence in support of the board’s determination as to the cause of death (see Matter of Ernest v Boggs Lake Estates, 12 NY2d 414, 416). It having been determined that the employee’s claim was filed in compliance with section 44-a and thus was not "stale”, since a time lapse as specified in subdivision 1 of section 25-a of the Workmen’s Compensation Law did not ensue, and it being conceded that there was no advance payment of compensation, there is no predicate to shift liability to the Fund for Reopened Cases under section 25-a (Workmen’s Compensation Law, § 25-a, subd 1; see Matter of Riley v Aircraft Prods. Mfg. Corp., 40 NY2d 366, 369-370; Matter of Casey v Hinkle Iron Works, 299 NY 382).

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

Order affirmed.


text:
    In the Matter of Skyline Inn Corp., Appellant, v New York State Liquor Authority, Respondent.
    Submitted February 7,1978;
    decided March 28,1978

      APPEARANCES OF COUNSEL

      Abraham Schatzman for appellant.

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

Memorandum.

In an article 78 proceeding, a petitioner may raise the question of whether a determination "was affected by an error of law” (CPLR 7803, subd 3). At the time of respondent’s determinations, each dated October 25, 1976, one canceling petitioner’s restaurant liquor license and the other disapproving a renewal application, it was an unlawful discriminatory practice "to make an inquiry about, whether in any form of application or otherwise, or to act upon adversely to the individual involved, any arrest or criminal accusation * * * which was followed by a termination of that criminal action or proceeding in favor of such individual” (Executive Law, § 296, subd 14, eff Sept. 11, 1976). While it was permissible to consider the independent evidence of the conduct leading to the criminal charges against Harry Gordon, a shareholder, director and officer of petitioner, and although there was substantial evidence to support the findings of suffering or permitting prostitution at the licensed premises and of the likelihood that renewal would create a high degree of risk in the administration and enforcement of the Alcoholic Beverage Control Law, it was error to predicate disapproval of the renewal application, albeit in part, on the finding that Gordon was "arrested and indicted” for a criminal charge subsequently dismissed. Thus, though there was substantial evidence for the determination in respect to cancellation, it is not for courts to speculate what penalty would have been imposed if the dismissed criminal charges had not been made one of the bases for respondent’s determination in respect to renewal.

Accordingly, the judgment of the Appellate Division should be modified, without costs, and the matter in respect to renewal remitted to Supreme Court, New York County, with directions to remand to respondent to reconsider the sanction imposed based on its findings other than the arrest and indictment of Gordon and, except as so modified, said judgment should be affirmed.

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

Judgment modified, without costs, and the matter remitted to Supreme Court, New York County, with directions to remand to the State Liquor Authority for reconsideration of the sanction imposed, in accordance with the memorandum herein and, as so modified, affirmed.


text:
    Charles F. Harding, Respondent, v New York State Teamsters Council Welfare Trust Fund, Appellant.
    Submitted February 27, 1978;
    decided March 28, 1978
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that the Court of Appeals does not have jurisdiction to entertain the motion (CPLR 5602, subd [a], par 1; NY Const, art VI, § 3, subd b, par [7]).


text:
    In the Matter of Edward Thompson, as Deputy City Administrative Judge, Civil Division, Supreme and Civil Courts, Appellant, v Lincoln Budget Corp. et al., Respondents, and Attorney-General of the State of New York, Intervenor.
    Submitted February 20, 1978;
    decided March 28, 1978
   Motion to dismiss the appeal herein granted and the appeal dismissed, without costs, upon the ground that it does not lie as of right (CPLR 5601, subd [a]; NY Const, art VI, § 3, subd b, par [7]).


author: Per Curiam.

text:
    Norman L. Cousins, Appellant, v Instrument Flyers, Inc., et al., Respondents.
    Argued February 15, 1978;
    decided March 29, 1978
    APPEARANCES OF COUNSEL

      Lonn E. Berney for appellant.

      William J. Junkerman and William F. Martin, Jr., for Instrument Flyers, Inc., respondent.

      Benjamin E. Haller for Piper Aircraft Corp., respondent.
   OPINION OF THE COURT

Per Curiam.

The order should be affirmed, with costs.

In this action, based on strict products liability, for personal injuries resulting from the crash of a rented private airplane, the issue is whether, as the parties had assumed throughout the trial, contributory negligence is a bar to recovery. Under the then applicable New York law, contributory negligence would be a bar; under the law of New Jersey and Pennsylvania, it evidently would not be.

Plaintiff, a resident of New York, arranged in New York to rent an airplane from defendant Instrument Flyers, Inc., a closely held New Jersey corporation, whose president lives and works in New York. The plane, which had been manufactured in Florida by defendant Piper Aircraft, a Pennsylvania corporation, was kept in a hangar and maintained at Teterboro Airport in New Jersey. On the day of the accident, plaintiff flew the plane from nearby Teterboro Airport to New York, where he made a stop at Flushing Airport, and then another at Westchester County Airport, where he picked up a passenger for the trip to Michigan. A stopover was scheduled in Ohio. Plaintiff’s apparent contributory negligence probably began while he was in New York and continued until the crash in Pennsylvania.

Isolation and analysis of the factors connecting the accident and its causes with the various States does not resolve the choice of law problem. It is true that lex loci delicti remains the general rule in tort cases to be displaced only in extraordinary circumstances (see Neumeier v Kuehner, 31 NY2d 121, 128-129 [Fuld, Ch. J.], 131 [Breitel, J., concurring]). But it has been acknowledged that in airplane crash cases, the place of the wrong, if it can even be ascertained, is most often fortuitous (Long v Pan Amer. World Airways, 16 NY2d 337, 342, esp n 3; see Ehrenzweig, Conflict of Laws, p 586; Tydings, Air Crash Litigation: A Judicial Problem and a Congressional Solution, 18 Amer U L Rev 299, 300).

Although the entire area of the applicable law in airplane accident litigation is still fraught with difficulties, it has been suggested by some that in strict products liability cases, plaintiffs should be permitted to choose the most favorable applicable law, within narrowly defined limits (see, e.g., Reese, Products Liability and Choice of Law: The United States Proposals to the Hague Conference, 25 Vand L Rev 29, 30-38; Kuhne, Choice of Law in Products Liability, 60 Cal L Rev 1, 27-32). Such a rule, although facile of application, appears incongruous. But even were it to be applied, plaintiff is not entitled to a new trial.

Plaintiff chose to sue in New York, and the parties and the court proceeded, reasonably, in view of the many relevant factors, assuming that New York law would apply on the now disputed issue. Only after all the proof had been received and just before the jury was to be charged did plaintiff’s highly experienced counsel suggest application of Pennsylvania law. Plaintiff had already chosen his strategy, based on New York law, and it was late to change it after the unfavorable testimony had unfolded. (But cf. James v Powell, 19 NY2d 249, 259.) Hence, it was not error for the Trial Justice to apply New York law, not only the law of the forum, but the law applicable to significant events in this multi-State trip by air, in the absence of compelling reason to apply belatedly another law, whether on the doctrine of lex loci delicti or otherwise.

Plaintiff’s other contentions, asserting a right to recover even under New York law, are treated in the opinion of Mr. Justice Herbert B. Evans at the Appellate Division.

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

Order affirmed.


text:
    Kelly’s Rental, Inc., et al., Appellants, v City of New York et al., Respondents.
    Argued February 16, 1978;
    decided March 29, 1978

      APPEARANCES OF COUNSEL

      Spiros A. Tsimbinos for appellants.

      Allen G. Schwartz, Corporation Counsel (Joel A. Newman and L. Kevin Sheridan of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs, and the case remitted to Special Term for further proceedings in accordance with the memorandum herein, and as so modified, should be affirmed.

A party against whom a criminal proceeding is pending may not seek declaratory relief. (Reed v Littleton, 275 NY 150; 3 Weinstein-Korn-Miller, NY Civ Prac, par 3001.06k.) The constitutionality and applicability of the statutory provisions alleged to have been violated are issues to be determined within the criminal proceeding itself. Having received numerous summonses to appear in Criminal Court for alleged violations of chapter 65 of the Administrative Code of the City of New York, appellants were precluded from seeking a declaration of the inapplicability of these provisions to their vehicles.

Since a declaratory judgment action does not lie, the order of the Appellate Division should be modified to strike the grant of summary judgment to respondent and the declaration in its favor. Notwithstanding the unavailability of a declaratory judgment action in this context, we are unable to grant respondent affirmative relief since respondent did not take an appeal from the determination of the Appellate Division. (People v Consolidated Edison Co. of N. Y., 34 NY2d 646, 648; City of Rye v Public Serv. Mut. Ins. Co., 34 NY2d 470, 474.) Upon remittal to Special Term, respondent may make a motion to dismiss the complaint if it be so advised.

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

Order modified, with costs, and the case remitted to Supreme Court, Queens County, for further proceedings in accordance with the memorandum herein and, as so modified, affirmed.


text:
    Ilemar Corp., Appellant, v Henry Krochmal et al., Respondents.
    Argued February 13, 1978;
    decided March 29, 1978

      APPEARANCES OF COUNSEL

      Ira L. Hyams and Howard J. Herman for appellant.

      Samuel Kirschenbaum and Brian Michael Seltzer for respondents.
   OPINION OF THE COURT

Memorandum.

The order appealed from should be affirmed, with costs. In order to place the vendor of realty under a contract of sale in default for a claimed failure to provide clear title, the purchaser normally must first tender performance himself and demand good title (Cohen v Krantz, 12 NY2d 242; Higgins v Eagleton, 155 NY 466). Tender of performance by the purchaser is excused only if the title defect is not curable, for in such a case it would serve no purpose to require the purchaser to go through the futile motions of tendering performance. In this case, the claimed defects were curable, and, in fact, were subsequently cured. Moreover, not only did the purchaser itself fail to tender performance but, strangely, the vendor was never advised by the purchaser of the defects which it allegedly found objectionable. Accordingly, the purchaser never placed the vendor in default, and is thus not entitled to recover its down payments made pursuant to the contract as extended.

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

Order affirmed.


text:
    Vincent Kehoe, as General Guardian of Charles Kehoe, an Infant, et al., Respondents, v Incorporated Village of Valley Stream et al., Defendants, and County of Nassau, Appellant.
    Submitted February 8, 1978;
    decided March 29, 1978
    APPEARANCES OF COUNSEL

      Joseph Jaspan, County Attorney (Natale C. Tedone and Biagio F. Giaquinto of counsel), for appellant.

      William J. Steinbrecher for respondents.
   OPINION OF THE COURT

Memorandum.

The judgment appealed from and the order of the Appellate Division brought up for review are affirmed, with costs. The infant plaintiff was eel fishing in Mill Pond Park, along with his older brother. The boys decided to continue fishing in a nearby stream and, in order to reach the stream, they went through a 20-foot-wide culvert under Mill Pond Road. Under an easement granted by the City of New York, the County of Nassau controlled and maintained Mill Pond Road, the culvert involved and all property within the boundaries of the easement. The evidence indicated that these areas were frequently used by children playing there. The boys were fishing near the end of the culvert when the infant plaintiff slipped and fell into the water striking a broken and jagged piece of pipe, sustaining severe injuries to his hand. The broken pipe was located "just outside the culvert” and "not more than six inches away from the opening of the culvert.” The substantive issue raised on this appeal is whether there was evidence to permit a finding of jurisdictional control by the county over the property where the plaintiff was injured. The jury returned a special verdict, unanimously finding that the drainpipe on which plaintiff slipped was located within the boundaries of the county’s easement. This finding as affirmed by the Appellate Division is not subject to review in this court, since there was evidence to support it (Cohen and Karger, Powers of the New York Court of Appeals, § 107, et seq.), despite conflicting testimony of the extent of the easement, which conflict was resolved in favor of respondents. On this record the jury could properly infer that the jagged pipe, there present for a sufficient length of time to be covered with a moss-like substance and being mere inches from the end of the culvert, was on county property; and that the county knew or should have known of its existence and condition; and that finding having been affirmed, we may not disturb it. In addition the county conceded that it constructed and maintained the drainage pipe in the culvert, and made regular inspections. We have examined the other contentions of the appellant and find them without merit.

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

Judgment appealed from, etc.


author: Cooke, J.

text:
    The People of the State of New York, Appellant, v James Carmack, Also Known as Peter Carmichael, Respondent.
    Argued February 16, 1978;
    decided March 29, 1978
    APPEARANCES OF COUNSEL

      Edward C. Cosgrove, District Attorney (John J. De Franks of counsel), for appellant.

      Joseph B. Mistrett and Nathaniel A. Barrell for respondent.
   OPINION OF THE COURT

Memorandum.

Order affirmed for the reasons stated by Mr. Justice Richard D. Simons at the Appellate Division.

It is clear on the facts of this case, particularly as the evidence developed at trial, that the extensive cross-examination on prior drug possession charges was improper. Under the circumstances there was too great a danger that the evidence would tend to demonstrate a propensity to commit the very crime for which the defendant was on trial rather than to impeach his credibility (see People v Wright, 41 NY2d 172, 175; People v Duffy, 36 NY2d 258, 262, cert den 423 US 861; People v Sandoval, 34 NY2d 371, 377-378).

Cooke, J.

(dissenting). The order of the Appellate Division should be reversed and the judgment of the Supreme Court, Erie County, convicting defendant after a jury trial of criminal sale of a controlled substance in the third degree, reinstated for the reasons set forth in the dissenting opinion of Mr. Justice Michael F. Dillon at the Appellate Division.

The necessarily wide latitude and broad discretion of nisi prius to control the scope of cross-examination with respect to defendant’s prior immoral, vicious or criminal acts as bearing upon his credibility (People v Schwartzman, 24 NY2d 241, 244, cert den 396 US 846), precluded the Appellate Division "in the absence of 'plain abuse and injustice’ * * * from substituting its judgment” for that of the trial court "and from making that difference of opinion, in the difficult and ineffable realm of discretion, a basis for reversal” (People v Sorge, 301 NY 198, 202; see, also, People v Sandoval, 34 NY2d 371, 375-376). Faced with defendant’s testimony that he did not engage in the illicit transaction for which he was charged, it was perfectly proper to permit cross-examination which was probative of defendant’s credibility (People Duffy, 36 NY2d 258, 262, cert den 423 US 861; cf. People v Wright, 41 NY2d 172, 175), especially when properly limited as here by pertinent instructions to the jury. The discretion of an appellate court should not be blithely substituted for that of a trial court where the record conclusively demonstrates that nisi prius exercised its discretion, not only without abuse as a matter of law, but with an acute awareness and recognition of the need to guarantee the defendant a fair trial.

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

Order affirmed.


text:
    William F. Hunter et al., Appellants-Respondents, v City of New York et al., Respondents-Appellants.
    Argued January 12, 1978;
    decided March 29, 1978

      APPEARANCES OF COUNSEL

      Murray A. Gordon and Kenneth E. Gordon for appellants-respondents.

      W. Bernard Richland, Corporation Counsel (Alfred Weinstein, L. Kevin Sheridan and Rosemary Carroll of counsel), for respondents-appellants.
   OPINION OF THE COURT

Order affirmed, without costs, on the opinion of Mr. Justice Harold Birns at the Appellate Division (58 AD2d 136).

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


text:
    Thomas Torrogrossa, Appellant, v Towmotor Co., Subsidiary of Caterpillar Tractor Co., Inc., et al., Respondents. Pennco Industrial Inc., Third-Party Plaintiff-Respondent, v Tower Insulation Corp., Third-Party Defendant-Respondent. Towmotor Corp. et al., Third-Party Plaintiffs-Respondents, v Tower Insulation Corp., Third-Party Defendant-Respondent.
    Argued February 15, 1978;
    decided March 29, 1978

      APPEARANCES OF COUNSEL

      Fredric Lewis for appellant.

      Walter T. Reardon and Vincent M. Sclafani for Towmotor Co., respondent.

      Benjamin Vinar, J. Robert Morris and Thomas R. Newman for Pennco Industrial Inc. and H. O. Penn Machinery Co., Inc., respondents.

      Abraham Shapiro and A. Allen Stanger for third-party defendant-respondent.
   OPINION OF THE COURT

Memorandum.

The order should be affirmed, with costs.

Concededly, the verdict of the jury in favor of Towmotor established that there was neither a breach of implied warranty in the design of the forklift nor negligence in the nature of the warnings contained on the operating plate or manual which accompanied its sale. Of the theories the plaintiff espoused, that left him with only one against the remaining defendant, Pennco, i.e., that the latter was negligent in failing to include the plate and the manual with the lift when it was leased to plaintiff’s employer or in otherwise failing to instruct the operator. We conclude there was no duty of instruction in this case and plaintiff has failed to prove that the negligence, if negligence it be, in failing to provide the plate and manual, was the proximate cause of his injuries (Sheehan v City of New York, 40 NY2d 496, 501; Cole v Swagler, 308 NY 325, 329-330). The plate or the manual would not have warned against the particular driving maneuver which plaintiff claims preceded the accident; the language of each did no more than repeat familiar bromides about slow and careful driving such as are self-evident to operators of motor vehicles generally.

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

Order affirmed.


author: Gabrielli, J.

text:
    Sheldon H. Solow, Doing Business as Solow Building Company, Appellant, v Avon Products, Inc., Respondent.
    Argued February 16, 1978;
    decided March 29, 1978

      APPEARANCES OF COUNSEL

      Joel M. Miller, Jack Newton Lerner, Robert J. McDonald, Paul P. Colborn and Catherine M. A. McCauliff for appellant.

      Charles C. Parlin, Jr., John T. Klug and John B. Creegan for respondent.
   OPINION OF THE COURT

Memorandum.

The order should be affirmed, with costs.

By the settlement agreement of March 18, 1976, the parties released one another from all claims arising out of the extra work save for the one "already asserted” in the present proceeding. Included among those so released was the claim which had been the subject matter of the prior proceeding. The earlier proceeding was the predicate for the affirmative defense that the plaintiffs present suit is barred because its subject matter is but the second part of an existing single cause of action which impermissibly has been split (930 Fifth Ave. Corp. v King, 42 NY2d 886, 887; 3 Carmody-Wait 2d NY Prac, § 16:1, p 73). By entering into the agreement, defendant in effect waived that defense.

We therefore reach the merits. On doing so, we conclude that the Trial Judge’s determination — that there was no error in the plaintiffs original method of computation and that, as a consequence, the moneys sought by the supplemental claim here at issue were neither due nor owing — is well supported by the practical construction which the record at the Civil Court indicates was accorded the disputed lease provision by the parties themselves (Brooklyn Public Lib. v City of New York, 250 NY 495, 501; see Brown Bros. Elec. Contrs. v Beam Constr. Corp., 41 NY2d 397, 400; Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285, 291).

Gabrielli, J.

(concurring). I am in agreement with the majority of the Appellate Division that plaintiff has attempted to impermissibly split a single cause of action, and would affirm on that ground alone. I am unable to agree with the majority of this court that by settling the prior proceeding the defendant "in effect waived that defense”. The effect of excluding the claims asserted in this proceeding from the general release incorporated in the settlement of the prior proceeding was simply to ensure against the conclusion that the parties were settling all their claims, including the claims asserted in this action. Failure to have included such a savings clause in the release would surely have resulted in the inadvertent inclusion of these claims in that release. I see no way in which this savings clause can be viewed as a waiver of a defense already asserted in this action. Such an intent is not to be inferred from so formalistic a provision.

Judges Jasen, Jones, Wachtler, Fuchsberg and Cooke concur in memorandum; Judge Gabrielli concurs in result in a separate opinion in which Chief Judge Breitel concurs.

Order affirmed.


text:
    Alexandra Rinck et al., Appellants, v Deutsche Lufthansa A.G., Respondent.
    Argued February 10, 1978;
    decided March 29, 1978

      APPEARANCES OF COUNSEL

      Bernard J. Jaffe and Abraham A. Salm for appellants.

      Dennis J. Doody and John J. Martin for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the opinion by Mr. Justice Vincent A. Lupiano at the Appellate Division (57 AD2d 370).

Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Cooke. Judge Fuchsberg dissents and votes to reverse in the following opinion.

Fuchsberg, J.

(dissenting). The dissenting opinion of Mr. Justice Samuel J. Silverman at the Appellate Division, to which I subscribe, makes it obvious that, unless the usage of language is to be distorted, the "destination” of Mrs. Rinck’s flight from Nuremberg, Germany to New York City was New York and not Nuremberg. In common parlance, if the place from which she was coming and the place to which she was going were both Nuremberg, she would not have had to take the flight at all.

I add the following comments:

Subdivision (1) of article 28 of the Warsaw Convention allows suit against a carrier "before the court at the place of destination” (49 US Stat 3000, 3020). The terminus of the flight on which Mrs. Rinck was injured — the only flight she was definitely scheduled to use — was New York. The ticket she bought essentially contained two stubs. One entitled her to passage on a specified flight from Germany to New York. A second, which entitled her to fly from New York to Nuremberg was "open”, that is, it specified no particular flight, date or time. The only reasonable interpretation would be that her "destination” on the trip provided for by the first stub was New York.

The face of the stub for the New York-bound flight, in the place customarily provided for such information, set forth the scheduled times of departure and arrival, the name of the passenger and the class of travel. It was the passenger’s guide to where it would take her. True it is that, in small boxes imprinted at another point on the face of each stub, the words "origin” and "destination” appear and that in each the agent who had completed the stubs had written the word Nuremberg. No other information was contained at that point and nowhere on the stubs, either in the form of Convention text or a summary or explanation thereof, was there anything to alert the passenger to the idea that the effect of this entry would be to contract away her right, in the event she was injured in the course of disembarking in New York, to sue the carrier in that convenient forum where the accident occurred. Under these circumstances she was entitled to assume that the entry in the boxes was either for the air carrier’s statistical or administrative purposes or for some other reason unrelated to the one now imposed upon her (cf. Egan v Kollsman Instruments Corp., 21 NY2d 160, 168-172, cert den sub nom. American Airlines v Egan, 390 US 1039; Lisi v Alitalia—Linee Aeree Italiane, 370 F2d 508, affd 390 US 455 by an equally divided court).

Not to regard New York as a "destination” in this case would be to strain the meaning of that word. The Convention is silent on the definition of "destination” in cases involving open tickets. The courts in other jurisdictions have failed to develop a consensus (compare Aanestad v Air Canada, 390 F Supp 1165, app dsmd 549 F2d 806, with Butz v British Airways, 421 F Supp 127), the United States Government, which negotiated the Convention, is unenthusiastic about this outcome (see Varkonyi v S. A. Empresa de Viacao Airea Rio Grandense, 71 Misc 2d 607, 611), and the cited earlier cases in this State do not deal with the situation where the injury occurred in New York on the final termination of a flight here (see Garcia v Pan Amer. Airways, 269 App Div 287, affd 295 NY 852, cert den 329 US 741; Wyman v Pan Amer. Airways, 181 Misc 963, affd 267 App Div 947, affd 293 NY 878, cert den 324 US 882; Galli v Re-Al Brazilian Int. Airlines, 29 Misc 2d 499). I would therefore reverse the order of the Appellate Division and remit the matter to the Supreme Court, New York County, for trial.

Order affirmed, etc.


text:
    Ralph Purdy, Respondent, v Barry Kreisberg et al., Constituting the Board of Police Commissioners of the Town of Greenburgh, et al., Appellants.
    Decided March 29, 1978
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution (McGinigle v Town of Greenburgh, 43 NY2d 949).


text:
    The People of the State of New York, Appellant, v Richard Dennis Fisher, Respondent.
    Submitted March 27, 1978;
    decided March 29, 1978
   Motion for permission to withdraw the appeal granted and the appeal withdrawn.


text:
    Monte Kromberg, Respondent, v Bernice Kromberg, Appellant.
    Argued February 14, 1978;
    decided April 4, 1978

      APPEARANCES OF COUNSEL

      Jerome Handler for appellant.

      Samuel H. Golden for respondent.
   OPINION OF THE COURT

Memorandum.

Order should be affirmed, without costs.

In defendant wife’s prior action for divorce, of necessity the validity of the entire separation agreement, regardless of interim inconclusive colloquy between counsel and court, was before the court, but the support provision alone was invalidated. Hence, since direct estoppel or claim preclusion is involved, the wife cannot now litigate whether public policy is offended by the additional provision calling for her to reconvey the husband’s interest in the property should she seek to - cancel the agreement or apply for an increase in support (see, e.g., Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307; cf. Matter of American Ins. Co. [Messinger], 43 NY2d 184, 189, n 2).

Were the issue not foreclosed by the doctrine of res judicata, however, plaintiff husband would still be entitled to reconveyanee. Affording the wife the alternatives of adequate support or sole ownership of the marital residence does not unlawfully contract away the husband’s obligation of support (see, generally, General Obligations Law, § 5-311; Haas v Haas, 298 NY 69, 71-72). That the reconveyance was perhaps phrased as a penalty does not alter the fact that at all times the wife had a choice.

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

Order affirmed.


text:
    In the Matter of Pedro F. Vazquez, Appellant, v New York City Department of Social Services et al., Respondents. In the Matter of Herbert Goings, Individually and on Behalf of All Other Provisional Case Aides Similarly Situated, Appellant, v New York City Department of Social Services, et al., Respondents.
    Submitted February 17, 1978;
    decided April 4, 1978

      APPEARANCES OF COUNSEL

      Jeffrey L. Kreisberg, Stephen F. Gordon and Gerald J. Barre for appellants.

      W. Bernard RichlandCorporation Counsel (L. Kevin Sheridan of counsel), for respondents.
   OPINION OF THE COURT

In each proceeding: Order affirmed, with costs, on the opinion of Mr. Justice Emilio Nunez at the Appellate Division (56 AD2d 432). We would only note that references in the opinion at page 434 to "13 provisional appointments” and "13 provisional positions” are read by us to mean "13 permanent appointments”.

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


text:
    Meryl F. Trepuk et al., Appellants, v Norman D. Frank, Individually and as Executor and Trustee of Joseph H. Steinhardt, Deceased, Respondent.
    Argued February 15, 1978;
    decided April 4, 1978
    APPEARANCES OF COUNSEL

      Thomas F. H. Meehan and Edward R. Finch, Jr., for appellants.

      Armand J. Rosenberg for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the order of Supreme Court, New York County, denying defendant’s renewed motion for an order dismissing the complaint, should be reinstated, with costs to abide the event.

Joseph H. Steinhardt died in 1926 and on February 23, 1927 letters testamentary were issued by the Surrogate’s Court of New York County to defendant Norman D. Frank and to Milo O. Frank, the latter of whom passed away in 1963 without subsequent substitution. The persons named as executors were also designated as trustees of all trusts established under the will of decedent Steinhardt. Plaintiff Trepuk and defendant are sister and brother, both being stepchildren of Steinhardt. Trepuk and her children, Joseph M. Gidding and Nelson R Gidding, were beneficiaries of the Steinhardt estate and were the original plaintiffs in this action. After commencement of this action in 1974, Joseph M. Gidding died and his executors were substituted in his stead as party plaintiffs pursuant to court order.

The complaint, seeking money damages and other relief, alleges certain fraudulent acts and statements on the part of defendant, including the filing of a false tax return in which it was set forth that the Steinhardt estate was insolvent and had a deficit, of which fraud plaintiffs had no knowledge until 1973. Previously, Supreme Court denied defendant’s application to dismiss pursuant to CPLR 3211 (subd [a], par 5), and the Appellate Division modified to the extent of granting leave to renew the application after the taking of discovery proceedings. In an ensuing deposition, plaintiff Trepuk testified it was in 1927 that defendant had misrepresented the financial condition of the estate and that her mother also had told her that the estate was insolvent. Reliance upon one’s mother and fiduciary brother was understandable and the extraordinary delay in discovery is therefore equally understandable. Upon renewal of the motion, Trepuk by affidavit confirmed her previous testimony in these respects and stated that defendant after making said representation failed to correct it thereafter.

There is no indication in the challenged pleading or in the papers submitted that plaintiffs actually "discovered the fraud” prior to 1973 and, ordinarily, an inquiry as to the time a plaintiff or the person under whom he claims "could with reasonable diligence have discovered it” is a mixed question of law and fact (see CPLR 213, subd 8, formerly subd 9 [see L 1975, ch 43, § 2, eff Sept. 1, 1975]; Erbe v Lincoln Rochester Trust Co., 3 NY2d 321, 326; Higgins v Crouse, 147 NY 411, 415). The facts and circumstances to be considered here do not justify a holding as a matter of law that plaintiffs, or any person under whom one of them may claim, could have discovered the fraud alleged in the exercise of reasonable diligence. Where it does not conclusively appear that a plaintiff had knowledge of facts from which the fraud could reasonably be inferred, a complaint should not be dismissed on motion and the question should be left to the trier of the facts (Dumbadze v Lignante, 244 NY 1, 9; see Azoy v Fowler, 57 AD2d 541).

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

Order reversed, etc.


text:
    Cresco Investments (U.S.A.), Inc., Appellant, v Grand Central Oyster Bar, Inc., Respondent.
    Submitted February 13, 1978;
    decided April 4, 1978
   Motion for leave to appeal dimissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (see CPLR 5602, subd [a], par 1, cl [ii]).


text:
    The People of the State of New York, Respondent, v Samuel Kelly, Appellant.
    Argued March 22, 1978;
    decided April 6, 1978

      APPEARANCES OF COUNSEL

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

      Mario Merola, District Attorney (Edward G. Spell and Alan D. Marrus of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed on the opinion of Mr. Justice Samuel J. Silverman at the Appellate Division (60 AD2d 220).

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


text:
    Joseph Ventricelli, Appellant-Respondent, v Kinney System Rent A Car, Inc., et al., Respondents-Appellants, and Antonio Maldonado, Respondent. Kinney System Rent A Car, Inc., et al., Third-Party Plaintiffs-Appellants-Respondents, v American Motors Corp. et al., Third-Party Defendants-Respondents-Appellants.
    Submitted March 13, 1978;
    decided April 6,1978

      APPEARANCES OF COUNSEL

      Joseph D. Ahearn for motion to dismiss and opposed to application for leave to appeal.

      William F. McNulty opposed to motion to dismiss and for application for leave to appeal.
   OPINION OF THE COURT

Motion to dismiss appeal taken as of right by third-party plaintiffs granted and their appeal dismissed, without costs, upon the ground that they are not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]).

Application of third-party plaintiffs for leave to appeal granted; they are parties aggrieved (CPLR 5511). To the extent that this disposition may be thought to be inconsistent with Miner v Long Is. Light. Co. (37 NY2d 775, 920), the determinations of the motions to dismiss the protective appeals taken in that case on the ground that the third-party appellants were not parties aggrieved are not followed.


text:
    Commercial Trading Company, Inc., Respondent, v Potter Securities Corporation et al., Defendants, and A. Solomon Menter, as Trustee in Bankruptcy of Potter Securities Corporation and Others, Intervenor-Appellant.
    Submitted March 6,1978;
    decided April 6, 1978
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (Til v O’Brien, 40 NY2d 902; Vines v Wollman, 38 NY2d 754; Cohen and Karger, Powers of the New York Court of Appeals, § 36, subd [c]).


text:
    Allen Fried et al., Appellants, v Edward Straussman et al., Copartners, Doing Business Under the Name of Grace Plaza of Great Neck, Respondents.
    Submitted March 6,1978;
    decided April 6, 1978
   Motion for leave to appeal and for a stay denied with $20 costs and necessary reproduction disbursements.

Motion to continue stay pending application to the United States Supreme Court for a writ of certiorari or for a continuation of stay dismissed (US Code, tit 28, § 2101, subd [f]).


text:
    Mark J. Gerard, Respondent-Appellant, v William G. Barry et al., Constituting the New York State Racing and Wagering Board, Appellants-Respondents.
    Decided April 6, 1978
   Appeal and cross appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the grounds that (1) no party is aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]), and (2) insofar as the Appellate Division order denies petitioner’s cross motion made pursuant to CPLR 5518, it does not finally determine the proceeding within the meaning of the Constitution.


text:
    Joel Greenberg, an Infant, by his Mother, Mildred Greenberg, et al., Appellants, v David Kliot, Respondent.
    Decided April 6, 1978
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that it does not lie as of right (CPLR 5601, subds [d], [a]). [See Greenberg v Kliot, 47 AD2d 765.]


text:
    Patricia Havens, Appellant, v Best Way Lines, Inc., Respondent.
    Submitted March 13, 1978;
    decided April 6, 1978
   Motion to dismiss the appeal herein granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that the determination sought to be reviewed involves a pure question of discretion of the type not reviewable by the Court of Appeals (Topp v Casco Prods. Corp., 7 NY2d 742).


text:
    The People of the State of New York, Respondent, v Raymond De Jesus, Appellant.
    Submitted March 20, 1978;
    decided April 6, 1978
   Motion for an extension of time within which to make application for leave to appeal pursuant to CPL 460.20 denied upon the ground that an application has been made to and denied by a Justice of the Appellate Division (see People v McCarthy, 250 NY 358, 361-362; Cohen and Karger, Powers of the New York Court of Appeals, § 191, pp 718-719), without prejudice to defendant’s motion, if he be so advised, for reargument in the Appellate Division.


text:
    The People of the State of New York, Respondent, v Ernest Green, Appellant.
    Submitted March 27, 1978;
    decided April 6, 1978
   Motion to dismiss the appeal herein granted and the appeal dismissed upon the ground that appellant is not presently available to obey the mandate of the court in the event of an affirmance (see People v Casiel, 33 NY2d 791).


text:
    Irene Schleimer, Appellant, v Anderson McPherson, Respondent.
    Submitted March 20, 1978;
    decided April 6, 1978
   On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that it does not lie as of right (NY Const, art VI, § 3, subd b, par [7]; CPLR 5601, subds [a], [b]).

Motion to waive strict compliance with certain requirements concerning the record on appeal herein dismissed as academic.


text:
    Mary H. Williams, Appellant, v John E. Cunningham, Jr., Respondent.
    Submitted March 20, 1978;
    decided April 6, 1978
   Motion to dismiss the appeal herein granted and the appeal dismissed, without costs, upon the ground that the order appealed from involves a question of discretion of the type not reviewable by the Court of Appeals (Rabetoy v Atkinson, 37 NY2d 803; Jacobs v Chemical Bank of N. Y. Trust Co., 30 NY2d 750; Cohen and Karger, Powers of the New York Court of Appeals, § 147, pp 584-587).


text:
    In the Matter of Paul W. Braver, as Personnel Director of the City of Rochester, et al., Appellants, v Frederick W. Lapple, as Executive Director of the Monroe County Civil Service Commission, et al., Respondents.
    Argued March 20, 1978;
    decided April 25, 1978

      APPEARANCES OF COUNSEL

      Louis N. Kash, Corporation Counsel (Joseph A. Regan of counsel), for appellants.

      Lawrence I. Heller for Donald P. Briggs, Jr., respondent.
   OPINION OF THE COURT

Memorandum.

Order of the Appellate Division affirmed, with costs.

The determination of the city on appellant Briggs’ grievance of April 29, 1974, or perhaps the specified date of termination on May 10, 1974, normally would have started the four-month Statute of Limitations running (CPLR 217). However, that determination and the earlier notices of termination were expressly stated to depend on the erroneous "lay-off list” provided by the County Civil Service Commission. Consequently, Briggs was justified in seeking, if not required to seek, to have the erroneous lay-off list corrected. He did not succeed until the State Civil Service Commission’s letter of August 30,1974 and the county commission’s letter of September 5, 1974. It was from that time, when the city refused to abide by the corrected lay-off list, that the Statute of Limitations started to run. Hence Briggs’ cross motion in this proceeding under CPLR article 78 was timely brought.

Respondent Briggs was entitled to reinstatement at the time this proceeding was brought. Generally the abolition of a position after litigation had started would be ineffective against the employee (see Matter of White v Harrell, 239 App Div 604, 606-607). Hence, respondent Briggs is entitled to back pay from the time of his wrongful termination to the time of his reinstatement.

In light of the briefing of the case, and the absence of any motion by respondent to dismiss the appeal insofar as it related to the order of the Appellate Division of July 12, 1977, the court grants leave, sua sponte, to appeal from that order.

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

On the court’s own motion, leave to appeal from the Appellate Division order entered July 12, 1977 granted. Order of the Appellate Division enteréd July 12, 1977 affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Appellant, v Alfred Rolle, Respondent.
    Argued March 23, 1978;
    decided April 25, 1978

      APPEARANCES OF COUNSEL

      Richard A. Hennessy, Jr., District Attorney (John A. Cirando and William J. Fitzpatrick of counsel), for appellant.

      Clifford Forstadt, George T. Dunn and Gerald T. Barth for respondent.

      Louis J. Lefkowitz, Attorney-General (Sidney L. Grossman, Ruth Kessler Toch and Anne S. Meadvin of counsel), in his statutory capacity under section 71 of the Executive Law.
   OPINION OF THE COURT

Memorandum.

Order of the County Court of the County of Onondaga reversed and the judgment of conviction reinstated.

Subdivision 1 of section 96 of the Alcoholic Beverage Control Law is not unconstitutional for vagueness. The purpose of the Alcoholic Beverage Control Law, as expressed in section 2 and as implemented throughout its provisions, but especially in section 100, indicates that the regulatory law governs only the sale and distribution of alcoholic beverages. Consequently, section 96, which prohibits, without license or permit "as provided for in this chapter”, the storing or keeping of alcoholic beverages, refers exclusively to alcoholic beverages stored or kept for sale or distribution. Any contrary meaning is untenable in the context of the Alcoholic Beverage Control Law, the various provisions of which deal not with noncommercial possession, use, or consumption, but with the sale and distribution of the regulated beverages at wholesale or retail.

Nor do the facts in this case suggest that defendant’s conduct did not come within the obvious scope of section 96. The affidavit on which the search warrant was obtained detailed ample facts of storing of alcoholic beverages for sale, and actual sales, by defendant. The criminal information charged defendant with storing wine, beer, and liquor in unlicensed premises for purposes of sale. Defendant pleaded guilty to the offense, and admitted the relevant operative facts, including a reference to abstaining in the future from the operation of a "juice joint”.

The assigned ground for the attack on the validity of the statute is without basis and depends upon, not a literal rendering, but a distortive wrenching of language from its context in order to make its "application” absurd and mischievous.

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

Order reversed and judgment of City Court, City of Syracuse, reinstated in memorandum.


text:
    In the Matter of William Spiegel et al., Individually and as a Partnership Doing Business as University Nursing Home, Respondents, v Robert P. Whalen, as Commissioner of the Department of Health of the State of New York, et al., Appellants.
    Argued March 20, 1978;
    decided April 25, 1978

      APPEARANCES OF COUNSEL

      Louis J. Lefkowitz, Attorney-General (Rosalind Fink, Samuel A. Hirshowitz and Marion R. Buchbinder of counsel), for appellants.

      Julius J. Rosen and Keith A. Taylor for respondents.
   OPINION OF THE COURT

Per Curiam.

After the disqualification of one of two partners authorized to operate this nursing home, the Public Health Council and the Commissioner of Health were not obliged to continue such authorization, initially granted the partnership, for the benefit of the remaining partner alone.

Two separate authorizations are now prerequisites for the operation of a nursing home — a grant of "establishment” from the Public Health Council, in effect giving the medical facility the right to exist, and an operating certificate from the Commissioner of Health authorizing an identified person, partnership or corporation to operate the facility. Originally the University Nursing Home in The Bronx, New York, had been under the jurisdiction of the City of New York, and the appropriate agency of the city had granted an operating certificate to the partnership of William and Eva Spiegel, husband and wife. In 1973 this home, with other similar facilities, came under the jurisdiction of the New York State Department of Health for licensure, supervision of operation and disciplinary action. University Nursing Home was never formally granted "establishment” by the Public Health Council because it had long been operating as an "established” facility when it came under State jurisdiction; similarly the partnership continued to operate the home under the operating certificate issued by the city.

In July, 1975, after trial, William Spiegel was convicted of grand larceny of moneys belonging to two patients in the home. That criminal proceeding is now on appeal. Following the conviction, hearings were held on behalf of the commissioner and the Public Health Council which resulted in revocation of establishment of William and Eva Spiegel as partners to operate the home and of the related operating certificate issued to the partnership. The Commissioner of Health directed the cessation of all operations, the transfer of all patients and the surrender of the operating certificate. The present article 78 proceeding ensued. On transfer from Supreme Court the Appellate Division annulled the commissioner’s determination, directed him to restore the operating certificate to "Eva Spiegel d/b/a University Nursing Home” and modified the revocation of establishment by the Public Health Council to the extent of directing the respondents to permit operation of the home by Eva Spiegel alone. We conclude that the determination of the Appellate Division must be reversed.

It is no longer seriously disputed that William Spiegel’s conviction warranted his exclusion from establishment and the operation of the home. It is the position of appellants, however, that inasmuch as establishment and the operating certificate were granted to the partnership, at least in the circumstances disclosed in this record, it was not arbitrary and capricious on the part of either commissioner or council to revoke in whole the authorizations granted to the partnership because of the disqualification of one of the two partners. While the applicable statute, subdivision 1 of section 2806 of the Public Health Law, authorizes limitation as well as revocation of the operating certificate, we conclude that revocation in toto of establishment and of the operating certificate based on William Spiegel’s conviction was not arbitrary and capricious. (Cf. Public Health Law, § 2801-a, subd 10, par [a].) Each authorization was based on consideration of the qualifications of both partners in combination. Neither the council nor the commissioner has ever considered the qualifications of Eva Spiegel alone to operate University Nursing Home. Both council and commissioner, however, have expressed their readiness to consider a new application submitted by Eva Spiegel individually. For reasons best known to her she has chosen rather to pursue the present article 78 proceeding, initially seeking restoration of establishment and the operating certificate of the partnership, subsequently modified to seek merely to exclude William from the outstanding authorizations.

For the reasons stated the judgment of the Appellate Division should be reversed, with costs, the determinations of the Commissioner of Health and the Public Health Council reinstated and the petition dismissed, all without prejudice to the right of Eva Spiegel, if she be so advised, to make a de novo individual application for establishment and an operating certificate with respect to University Nursing Home.

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

Judgment reversed, etc.


text:
    The People of the State of New York, Respondent, v Michael Puglisi, Appellant.
    Argued March 22, 1978;
    decided April 25, 1978

      APPEARANCES OF COUNSEL

      Richard D. Friedman for appellant.

      Mario Merola, District Attorney (Allen H. Saperstein and Alan D. Marrus of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, defendant’s conviction vacated, and the case remitted for further proceedings on the indictment.

We conclude that the cumulative effect, at least, of the several preserved errors requires a reversal. Proof of defendant’s guilt turned very largely on the jury’s acceptance of the testimony of Detective Nunez, the only witness to the alleged drug transactions produced by the People; the participating police informer did not take the stand. In this circumstance the significance of the errors on trial became critical. It was error to permit Lieutenant Donnelly to testify by way of inferential explanation for the failure to call the informer that he had promised the informer that the latter’s identity would not be revealed and that he would never be called upon to testify in open court, and further that when asked if he would be willing to testify the informer had responded, "What do you want, to get me killed?” It was also error for the prosecutor to vouch for his own witness and then to buttress his own unsworn testimony by volunteering to take a lie detector test. Finally, it was error (and in the circumstances of this case not harmless error, despite the subsequent extensive cross-examination) to have refused to disclose to defense counsel for impeachment purposes information from Detective Nunez’ disciplinary file as to prior misconduct on his part.

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

Order reversed, etc.


text:
    In the Matter of the Claims of Eveleth E. Cool, Appellant, et al., Petitioner. Philip Ross, as Industrial Commissioner, Respondent.
    Argued March 23, 1978;
    decided April 25, 1978

      APPEARANCES OF COUNSEL

      Philip D. O’Donnell for appellant.

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

Order affirmed, with costs, on the opinion by Mr. Justice A. Franklin Mahoney at the Appellate Division (57 AD2d 450). (Cf. Matter of Bookhout v Levitt, 43 NY2d 612.)

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


text:
    In the Matter of Yonkers Federation of Teachers, Respondent, v Board of Education of the Yonkers City School District, Appellant.
    Argued March 20, 1978;
    decided April 25, 1978

      APPEARANCES OF COUNSEL

      Eugene J. Fox, Corporation Counsel (William B. Lawless of counsel), for appellant.

      David N. Stein and James R. Sandner for respondent.
   OPINION OF THE COURT

Memorandum.

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

On a prior appeal in this case, our court granted the teachers’ cross motion to compel arbitration of a job security clause claimed to have been breached by the board when a financial emergency resulted in substantial layoffs among ostensibly protected teachers. We found the clause at issue to be valid, noting that although a collective bargaining agreement should never become a "suicide pact” and should not be construed as a "higher law” with a "status denied to other public and contractual arrangements”, nevertheless the merits and the appropriate remedy were issues which had been contractually relegated to the arbitrator for resolution (Matter of Board of Educ. v Yonkers Federation of Teachers, 40 NY2d 268, 276).

The arbitrator determined that, had the city used its taxing powers to the full, the board’s fiscal needs could have been met without discharging teachers for budgetary reasons — precisely the result sought to be avoided by the job security clause. This determination cannot be said to be irrational. Indeed, as was observed by the Appellate Division: "to permit the board of education to renege on its agreement by merely claiming a financial crisis, the very thing the clause was designed to protect the teachers against, would result in the collective bargaining process, and the sanctity of agreements reached thereby, being thrown into disarray.”

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

Order affirmed.