text:
    The People of the State of New York, Respondent, v Victor Casassa, Appellant.
    Argued February 4, 1980;
    decided April 1, 1980

      POINTS OF COUNSEL

      Anne C. Feigus and Ronald P. Fischetti for appellant.
    I. Appellant’s statements, made while in police custody, were obtained in violation of his Sixth Amendment right to counsel and his Fifth Amendment privilege against self incrimination; because these involuntary statements provided the probable cause for various search warrants, the physical evidence seized pursuant thereto must likewise be suppressed. (People v Pinzon, 44 NY2d 458; People v Bevilacqua, 45 NY2d 508; People v Garofolo, 46 NY2d 592; People v Donovan, 13 NY2d 148; People v Arthur, 22 NY2d 325; People v Townsend, 33 NY2d 37;- Blackburn v Alabama, 361 US 199; Fikes v Alabama, 352 US 191; People v Anderson, 42 NY2d 35; Miranda v Arizona, 384 US 436.) II. The trial court erred in failing to find that appellant acted under the influence of extreme emotional disturbance when he caused the death of Victoria Lo Consolo. (People v Patterson, 39 NY2d 288, afifl sub nom. Patterson v New York, 432 US 197; People v Shelton, 88 Misc 2d 136; People v Solari, 43 AD2d 610, 35 NY2d 876; People v Lyttle, 95 Misc 2d 879.) III. Appellant’s watch and ring were illegally seized from his person while in police custody in violation of his Fourth Amendment rights in that his consent to this warrantless search was not freely and voluntarily given. (People v Whitehurst, 25 NY2d 389; People v Gonzalez, 39 NY2d 122; People v Mule, 46 AD2d 414.)

      Denis Dillon, District Attorney (Judith Rubinstein Stern-berg and William C. Donnino of counsel), for respondent.
    I. The hearing court properly refused to suppress defendant’s statements. (People v Anderson, 42 NY2d 35; Oregon v Mathiason, 429 US 492; People v Garofolo, 46 NY2d 592; People v Yukl, 25 NY2d 585; Fikes v Alabama, 352 US 191; People v Rosa, 31 AD2d 623; People v Howard, 27 AD2d 796; People v Adams, 26 NY2d 129; People v Townsend, 33 NY2d 37; People v Arthur, 22 NY2d 325.) II. Victor Casassa’s guilt of murder was proved beyond any doubt; his defense of extreme emotional disturbance was properly rejected. (People v Horton, 18 NY2d 355; People v Rumaner, 45 AD2d 290; People v Patterson, 39 NY2d 288, affd sub nom. Patterson v New York, 432 US 197; People v Shelton, 88 Misc 2d 136; People v Schwertfeger, 60 AD2d 996; People v Edwards, 64 AD2d 201; People v Lyttle, 95 Misc 2d 879; People v Caruso, 246 NY 437; People v Easley, 42 NY2d 50; People v Trobiano, 52 AD2d 631.) III. The hearing court properly refused to suppress the physical evidence. (People v Gonzalez, 39 NY2d 122; People v Kuhn, 33 NY2d 203; United States v Edwards, 415 US 800; People v Crimmins, 36 NY2d 230.)
   OPINION OF THE COURT

Jasen, J.

The significant issue on this appeal is whether the defendant, in a murder prosecution, established the affirmative defense of "extreme emotional disturbance” which would have reduced the crime to manslaughter in the first degree.

On February 28, 1977, Victoria Lo Consolo was brutally murdered. Defendant Victor Casassa and Miss Lo Consolo had been acquainted for some time prior to the latter’s tragic death. They met in August, 1976 as a result of their residence in the same apartment complex. Shortly thereafter, defendant asked Miss Lo Consolo to accompany him to a social function and she agreed. The two apparently dated casually on other occasions until November, 1976 when Miss Lo Consolo informed defendant that she was not "falling in love” with him. Defendant claims that Miss Lo Consolo’s candid statement of her feelings "devastated him.”

Miss Lo Consolo’s rejection of defendant’s advances also precipitated a bizarre series of actions on the part of defendant which, he asserts, demonstrate the existence of extreme emotional disturbance upon which he predicates his affirmative defense. Defendant, aware that Miss Lo Consolo maintained social relationships with others, broke into the apartment below Miss Lo Consolo’s on several occasions to eavesdrop. These eavesdropping sessions allegedly caused him to be under great emotional stress. Thereafter, on one occasion, he broke into Miss Lo Consolo’s apartment while she was out. Defendant took nothing, but, instead, observed the apartment, disrobed and lay for a time in Miss Lo Consolo’s bed. During this break-in, defendant was armed with a knife which, he later told police, he carried "because he knew that he was either going to hurt Victoria or Victoria was going to cause him to commit suicide.”

Defendant’s final visit to his victim’s apartment occurred on February 28, 1977. Defendant brought several bottles of wine and liquor with him to offer as a gift. Upon Miss Lo Consolo’s rejection of this offering, defendant produced a steak knife which he had brought with him, stabbed Miss Lo Consolo several times in the throat, dragged her body to the bathroom and submerged it in a bathtub full of water to "make sure she was dead.”

The following day the police investigation of Miss Lo Consolo’s death began. On the evening of March 1, 1977, Nassau County Police detectives came to the apartment building in which the crime had occurred. They were in the process of questioning several of the residents of the building when defendant presented himself to the police and volunteered that he had been in the victim’s apartment on the night of the murder. While denying any involvement in the murder of Miss Lo Consolo, he professed a willingness to co-operate in the investigation.

The police accepted his offer of co-operation and requested that he accompany them to the Nassau County police headquarters in Mineóla to discuss the matter further. On the way to Mineóla, defendant was informed of his constitutional rights. He indicated that he understood his rights and that he nonetheless wished to co-operate. Defendant was interrogated by police for some nine and one-half hours thereafter and at 5:00 a.m. on the morning of March 2, 1977, he fully confessed to the murder of Victoria Lo Consolo, giving the police several oral and written statements detailing his involvement in the crime.

During the course of defendant’s interrogation, his mother, worried because her son had not appeared at a planned social gathering, telephoned the Hempstead police to report her son as a missing person. She made several calls to the Hempstead Police Department and at least one to the Nassau County Police Department’s seventh precinct in Manhasset between the hours of 11:00 p.m. on March 1, 1977 and 3:00 a.m. on March 2, 1977, and was informed by the officers at these stations that her son’s whereabouts were unknown. She then telephoned the apartment of Victoria Lo Consolo. The officer on duty there told her of the murder and gáve her no further information, but said that the police would return her call. At 4:00 a.m., having received no further information, she called the apartment again. This time another officer gave her a telephone number to call to seek further information about her son. A call to this number at 5:00 a.m. was also unavailing. However, a subsequent call to the Hempstead police yielded yet another number at the Nassau County Police Department. When Mrs. Casassa called this number, she was accurately informed that her son was held for questioning as a suspect in the Lo Consolo homicide. Thereafter, she came to the station and arranged to have counsel provided for her son.

On March 8, 1977, defendant was indicted and charged with murder in the second degree. Defendant made several pretrial motions seeking to suppress his statements to police and several pieces of real evidence which had been given to police during questioning. After a hearing, the motions were denied.

Defendant waived a jury and proceeded to trial before the County Court. The minutes of the suppression hearing were incorporated into the trial transcript and defendant’s confessions were received into evidence. The defendant did not contest the underlying facts of the crime. Instead, the sole issue presented to the trial court was whether the defendant, at the time of the killing, had acted under the influence of "extreme emotional disturbance”. (Penal Law, § 125.25, subd 1, par [a].) The defense presented only one witness, a psychiatrist, who testified, in essence, that the defendant had become obsessed with Miss Lo Console and that the course which their relationship had taken, combined with several pérsonality attributes peculiar to defendant, caused him to be under the influence of extreme emotional disturbance at the time of the killing.

In rebuttal, the People produced several witnesses. Among these witnesses was a psychiatrist who testified that although the defendant was emotionally disturbed, he was not under the influence of "extreme emotional disturbance” within the meaning of section 125.25 (subd 1, par [a]) of the Penal Law because his disturbed state was not the product of external factors but rather was "a stress he created from within himself, dealing mostly with a fantasy, a refusal to accept the reality of the situation.”

The trial court in resolving this issue noted that the affirmative defense of extremé emotional disturbance may be based upon a series of events, rather than a single precipitating cause. In order to be entitled to the defensé, the court held, a defendant must show that his reaction to such events was reasonable. In determining whether defendant’s emotional reaction was reasonable, the court considered the appropriate test to be whether in the totality of the circumstances the finder of fact could understand how a person might have his reason overcome. Concluding that the test was not to be applied solely from the viewpoint of defendant, the court found that defendant’s emotional reaction at the time of the commission of the crime was so peculiar to him that it could not be considered reasonable so as to reduce the conviction to manslaughter in the first degree. Accordingly, the trial court found defendant guilty of the crime of murder in the second degree. The Appellate Division affirmed, without opinion.

On this appeal defendant contends that the trial court erred in failing to afford him the benefit of the affirmative defense of "extreme emotional disturbance”. It is argued that the defendant established that he suffered from a mental infirmity not arising to the level of insanity which disoriented his reason to the extent that his emotional reaction, from his own subjective point of view, was supported by a reasonable explanation or excuse. Defendant asserts that by refusing to apply a wholly subjective standard the trial court misconstrued section 125.25 (subd 1, par [a]) of the Penal Law. We cannot agree.

Section 125.25 (subd 1, par [a]) of the Penal Law provides that it is an affirmative defense to the crime of murder in the second degree where "[t]he defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse.” This defense allows a defendant charged with the commission of acts which would otherwise constitute murder to demonstrate the existence of mitigating factors which indicate that, although he is not free from responsibility for his crime, he ought to be punished less severely by reducing the crime upon conviction to. manslaughter in the first degree. (Penal Law, § 125.25, subd 1, par [a]; People v Patterson, 39 NY2d 288, 302, affd sub nom. Patterson v New York, 432 US 197; see, also, Wechsler, Codification of Criminal Law in the United States: The Model Penal Code, 68 Col L Rev 1425, 1446.)

In enacting section 125.25 (subd 1, par [a]) of the Penal Law, the Legislature adopted the language of the manslaughter provisions of. the Model Penal Code (see § 201.3, subd [1], par [b] [Tent Draft No. 9]). The only substantial distinction between the New York statute and the Model Penal Code is the designation by the Legislature of "extreme emotional disturbance” as an "affirmative defense”, thus placing the burden of proof on this issue upon defendant. (Penal Law, § 25.00, subd 2; People v Patterson, 39 NY2d 288, 301, supra.) The Model Penal Code formulation, however, as enacted by the Legislature, represented a significant departure from the prior law of this State.

The "extreme emotional disturbance” defense is an outgrowth of the "heat of passion” doctrine which had for some time been recognized by New York as a distinguishing factor between the crimes of manslaughter and murder. (See 1829 Rev Stat of New York, Part IV, ch I, tit II, §§ 10, 12, 18; L 1881, ch 676, § 189, subd 2; § 193, subd 2; Penal Law of 1909, § 1052, subd 2.) However, the new formulation is significantly broader in scope than the "heat of passion” doctrine which it replaced. (People v Patterson, 39 NY2d 288, 302-303, supra; People v Shelton, 88 Misc 2d 136, 141-142; Notes of the Staff of the State Commission on Revision of the Penal Law and Criminal Code, 1967 Gilbert, Criminal Law and Practice of New York, pp 1C-61-62; Model Penal Code, § 201.3, Comment, pp 46-47 [Tent Draft No. 9].)

For example, the "heat of passion” doctrine required that a defendant’s action be undertaken as a response to some provocation which prevented him from reflecting upon his actions. (See, e.g., People v Ferraro, 161 NY 365, 375.) Moreover, such reaction had to be immediate. The existence of a "cooling off” period completely negated any mitigating effect which the provocation might otherwise have had. (See, e.g., People v Florentino, 197 NY 560, 563.) In Patterson, however, this court recognized that "[a]n action influenced by an extreme emotional disturbance is not one that is necessarily so spontaneously undertaken. Rather, it may be that a significant mental trauma has affected a defendant’s mind for a substantial period of time, simmering in the unknowing subconscious and then inexplicably coming to the fore.” (39 NY2d, at p 303.) This distinction between the past and present law of mitigation, enunciated in Patterson, was expressly adopted by the trial court and properly applied in this case.

The thrust of defendant’s claim, however, concerns a question arising out of another perceived distinction between "heat of passion” and "extreme emotional disturbance” which was not directly addressed in Patterson, to wit: whether, assuming that the defense is applicable to a broader range of circumstances, the standard by which the reasonableness of defendant’s emotional reaction is to be tested must be an entirely subjective one. Defendant relies principally upon our decision in Patterson and upon the language of the statute to support his claim that the reasonableness of his "explanation or excuse” should be determined solely with reference to his own subjective viewpoint. Such reliance is misplaced.

In Patterson, this court was concerned with the question of whether the defendant could properly be charged with the burden of proving the affirmative defense of "extreme emotional disturbance”. In deciding that the defendant could constitutionally be required to carry such a burden, we noted that "[t]he purpose of the extreme emotional disturbance defense is to permit the defendant to show that his actions were caused by a mental infirmity not arising to the level of insanity, and that he is. less culpable for having committed them.” (39 NY2d, at p 302.) We also noted that "[t]he differences between the present New York statute and its predecessor * * * can be explained by the tremendous advances made in psychology since 1881 and a willingness on the part of the courts, legislators, and the public to reduce the level of responsibility imposed on those whose capacity has been diminished by mental trauma.” (Id., at p 303.) These comments, however, were relevant to our decision only insofar as they demonstrated that the affirmative defense of "extreme emotional disturbance” is a mitigating factor which the defendant must prove as opposed to a substantive element of the crime of murder which the People must prove.

Defendant, however, would read Patterson as holding that all mental infirmity, short of insanity, must constitute "extreme emotional disturbance” if such infirmity causes the defendant to become emotionally disturbed and the defendant subjectively believed his disturbance had a reasonable explanation or excuse. While it is true that the court in Patterson recognized that "extreme emotional disturbance” as contemplated by the statute is a lesser form of mental infirmity than insanity, the court did not hold that all mental infirmities not arising to the level of insanity constitute "extreme emotional disturbance” within the meaning of the statute. This question was not presented to us in Patterson and we did not decide it. Defendant’s attempt to further extend our holding in Patterson to support the proposition that the reasonableness of the explanation or excuse for defendant’s emotional disturbance must be tested from the subjective viewpoint of defendant is completely unavailing, for that case had nothing whatever to do with this issue.

Having determined that our decision in Patterson does not require that reasonableness be tested with a completely subjective standard, we must now determine whether the language of the statute or the legislative history of the statute indicates that such a standard is required.

Section 125.25 (subd 1, par [a]) of the Penal Law states it is an affirmative defense to the crime of murder that "[t]he defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be.” Whether the language of this statute requires a completely subjective evaluation of reasonableness is a question that has never been decided by this court, although it has been raised in our lower courts with diverse results. (Compare People v Shelton, 88 Misc 2d 136, supra, with People v Lyttle, 95 Misc 2d 879, 884.) Moreover, although several States have enacted identical or substantially similar statutes (see Conn Gen Stat Ann, § 53a-54, subd [a], par [1]; Del Code Ann, tit 11, § 641; Hawaii Penal Code, § 707-702, subd [2]; Ky Rev Stat, § 507.020, subd [1], par [a]; Rev Codes of Mont, § 94-5-103; ND Century Code, § 12.1-16-02; Ore Rev Stat, § 163.115; Utah Code Ann, § 76-5-205), only one decision of the highest court of any of our sister States which has addressed this question has been called to our attention (State v Elliott, 177 Conn 1) and that court expressly followed Justice Bentley Kassal’s well-reasoned opinion in People v Shelton (88 Misc 2d 136, supra).

Consideration of the Comments to the Model Penal Code, from which the New York statute was drawn, are instructive. (Model Penal Code, § 201.3, Comment [Tent Draft No. 9 (1959)].) The defense of "extreme emotional disturbance” has two principal components — (1) the particular defendant must have "acted under the influence of extreme emotional disturbance”, and (2) there must have been "a reasonable explanation or excuse” for such extreme emotional disturbance, "the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be”. The first requirement is wholly subjective — i.e., it involves a determination that the particular defendant did in fact act under extreme emotional disturbance, that the claimed explanation as to the cause of his action is not contrived or sham.

The second component is more difficult to. describe — i.e., whether there was a reasonable explanation or excuse for the emotional disturbance. It was designed to sweep away "the rigid rules that have developed with respect to the sufficiency of particular types of provocation, such as the rule that words' alone can never be enough” (id., at pp 46-47), and "avoids a merely arbitrary limitation on the nature of the antecedent circumstances that may justify a mitigation” (id.). "The ultimate test, however, is objective; there must be 'reasonable’ explanation or excuse for the actor’s disturbance” (id., at p 41). In light of these comments and the necessity of articulating the defense in terms comprehensible to jurors, we conclude that the determination whether there was reasonable explanation or excuse for a particular emotional disturbance should be made by viewing the subjective, internal situation in which the defendant found himself and the external circumstances as he perceived them at the time, however inaccurate that perception may have been, and assessing from that standpoint whether the explanation or excuse for his emotional disturbance was reasonable, so as to entitle him to a reduction of the crime charged from murder in the second degree to manslaughter in the first degree. We recognize that even such a description of the defense provides no precise guidelines and necessarily leaves room for the exercise of judgmental evaluation by the jury. This, however, appears to have been the intent of the draftsmen. "The purpose was explicitly to give full scope to what amounts to a plea in mitigation based upon a mental or emotional trauma of significant dimensions, with the jury asked to show whatever empathy it can.” (Wechsler, Codification of Criminal Law in the United States: The Model Penal Code, 68 Col L Rev 1425, 1446.)

By suggésting a standard of evaluation which contains both subjective and objective elements, we believe that the drafters of the code adequately achieved their dual goals of broadening the "heat of passion” doctrine to apply to a wider range of circumstances while retaining some element of objectivity in the process. The result of their draftsmanship is a statute which offers the defendant a fair opportunity to seek mitigation without requiring that the trier of fact find mitigation in each case where an emotional disturbance is shown — or as the drafters put it, to offer "room for argument as to the reasonableness of the explanations or excuses offered.”

We note also that this interpretation comports with what has long been recognized as the underlying purpose of any mitigation statute. In the words of Mr. Justice Cardozo, referring to an earlier statute: "What we have is merely a privilege offered to the jury to find the lesser degree when the suddenness of the intent, the vehemence of the passion, seems to call irresistably for the exercise of mercy. I have no objection to giving them this dispensing power, but it should be given to them directly and not in a mystifying cloud of words.” (Cardozo, Law and Literature, pp 100-101.) In the end, we believe that what the Legislature intended in enacting the statute was to allow the finder of fact the discretionary power to mitigate the penalty when presented with a situation which, under the circumstances, appears to them to have caused an understandable weakness in one of their fellows. Perhaps the chief virtue of the statute is that it allows such discretion without engaging in a detailed explanation of individual circumstances in which the statute would apply, thus avoiding the "mystifying cloud of words” which Mr. Justice Cardozo abhorred.

We conclude that the trial court, in this case, properly applied the statute. The court apparently accepted, as a factual matter, that defendant killed Miss Lo Consolo while under the influence of "extreme emotional disturbance”, a threshold question which must be answered in the affirmative before any test of reasonableness is required. The court, however, also recognized that in exercising its function as trier of fact, it must make a further inquiry into the reasonableness of that disturbance. In this regard, the court considered each of the mitigating factors put forward by defendant, including his claimed mental disability, but found that the excuse offered by defendant was so peculiar to him that it was unworthy of mitigation. The court obviously made a sincere effort to understand defendant’s "situation” and "the circumstances as defendant believed them to be”, but concluded that the murder in this case was the result of defendant’s malevolence rather than an understandable human response deserving of mercy. We cannot say, as a matter of law, that the court erred in so concluding. Indeed, to do so would subvert the purpose of the statute.

In our opinion, this statute would not require that the jury or the court as trier of fact find mitigation on any particular set of facts, but, rather, allows the finder of fact the opportunity to do so, such opportunity being conditional only upon a finding of extreme emotional disturbance in the first instance. In essence, the statute requires mitigation to be afforded an emotionally disturbed defendant only when the trier of fact, after considering a broad range of mitigating circumstances, believes that such leniency is justified. Since the trier of fact found that defendant failed to establish that he was acting "under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse”, defendant’s conviction of murder in the second degree should not be reduced to the crime of manslaughter in the first degree.

Defendant also urges in support of reversal that the confessions upon which his conviction was predicated were involuntarily given to the police. However, the trial court examined the " 'totality of the circumstances’ ” of defendant’s arrest and subsequent confession (see People v Anderson, 42 NY2d 35, 38) and found, as a factual matter, that defendant’s oral and written statements were given to the police voluntarily. The Appellate Division affirmed this finding. Having carefully examined the record, we find nothing in the circumstances of this case which would lead us to conclude that defendant’s confession was involuntarily obtained as á matter of law.

Finally, defendant contends that his mother’s unsuccessful effort to contact him, aggravated in part by an apparently accidental dissemination of misinformation by the police, denied defendant his right to counsel. While it is true that when an attorney attempts to intercede in a criminal defendant’s behalf and is prevented from doing so by police misinformation, that defendant’s right to counsel is infringed (see, e.g., People v Garofolo, 46 NY2d 592, 600-601), no such infringement is present where, as here, a family member contacts police to report that her son was a "missing person”. Nor is there any evidence in the record to suggest that this is a case such as People v Bevilacqua (45 NY2d 508), where the record supported the inference that the police intentionally deprived the defendant of access to his family in an effort to obtain a confession. It is clear from the record that the defendant, a man of 27 years, consciously chose to confront his interrogators alone. Indeed, it is undisputed that defendant, after being informed of his constitutional rights, did not ever ask to speak with either counsel or any member of his family. Under these circumstances, we cannot say that defendant’s right to counsel has been infringed..

We have examined defendant’s remaining contentions and find them to be without merit.

Accordingly, the order of the Appellate Division should be affirmed.

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

Order affirmed.

      . Defendant also notes that the People’s expert witness stated that a mental disease not arising to the level of insanity could not be considered to be "extreme emotional disturbance” within the meaning of the statute. Of course, to the extent that the witness’ comments can be interpreted as being in conflict with our decision in Patterson, the witness is in error. However, the trial court did not fully adopt this view and, in fact, predicated its decision upon a finding that the emotional disturbance which defendant experienced had no reasonable explanation or excuse. We would note that the trial court could have completely disregarded the witness’ testimony and still have denied the defendant the benefit of the defense. (People v Solari, 43 AD2d 610, 612, affd 35 NY2d 876.)

      . We emphasize that this test is to be applied to determine whether defendant’s emotional disturbance, and not the act of killing, was supported by a reasonable explanation or excuse.

      . We are informed that the Nassau County police have instituted a system for monitoring the whereabouts of all people in their custody, which should help to avoid the possibility that such misinformation will be given out in the future.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Board of Education of Belmont Central School District et al., Appellants, v Margery Gootnick et al., Respondents.
    Argued March 24, 1980;
    decided April 24, 1980

      POINTS OF COUNSEL

      Harvey Mandelkern, Bernard T. McGivern, Norman H. Gross and Henry F. Sobota for appellants.
    I. Section 3020-a, as amended by chapter 82 of the Laws óf 1977, is in violation of the Constitution of the State of New York in that á portion of it is a private law adding an additional subject not embraced in its title. (People ex rel. Lee v Board of Supervisors of County of Chautauqua, 43 NY 10.) II. Section 3020-a, as amended by chapter 82 of the Laws of 1977, violates section 17 of article III of the New York State Constitution to the extent that it grants an exclusive privilege and franchise to the American Arbitration Association. (Matter of Bott v Board of Educ., 41 NY2d 265; City of Amsterdam v Helsby, 37 NY2d 19; Mount St. Mary’s Hosp. of Niagara Falls v Catherwood, 26 NY2d 493; Fox v Mohawk & Hudson Riv. Humane Soc., 165 NY 517; Economic Power & Constr. Co. v City of Buffalo, 195 NY 286; Matter of Mayor of N. Y. [Elm St], 246 NY 72; Thousand Is. Park Assn. v Tucker, 173 NY 203.) III. Section 3020-a of the Education Law, as amended by chapter 82 of the Laws of 1977, denies boards of education, their employees, taxpayers and students due process and equal protection of law. (Kinsella v Board of Educ., 378 F Supp 54, 402 F Supp 1155, 542 F2d 1165; Matter of Kinsella v Board of Educ., 64 AD2d 738; Hodgkins v Central School Dist. No. 1, 48 AD2d 302, 42 NY2d 807; Matter of Hodgkins v Central School Dist. No. 1, 50 AD2d 73, 41 NY2d 962; Matter of Polskin v Board of Educ., 49 AD2d 968, 40 NY2d 804; Figliomeni v Board of Educ., 38 NY2d 178; San Antonio School Dist. v Rodriguez, 411 US 1; Matter of Levy, 38 NY2d 653; West Coast Hotel Co. v Parrish, 300 US 379;. Montgomery v Daniels, 38 NY2d 41; Board of Educ. v Nyquist, 94 Misc 2d 466.)

      Robert D. Clearfield and Paul E. Klein for respondents.
    I. Section 3020-a, as amended by chapter 82 of the Laws of 1977, does not violate section 15 of article III of the New York State Constitution in that it in no way constitutes a private or local bill. (Kerrigan v Force, 68 NY 381; People v O’Brien, 38 NY 193; Schuyler v South Mall Constructors, 32 AD2d 454; People ex rel. Lee v Board of Supervisors of County of Chautauqua, 43 NY 10.) II. The selection of the impartial chairman from the lists of the American Arbitration Association is not an exclusive franchise or privilege within the meaning of section 17 of article III. (Board of Educ. v Associated Teachers of Huntington, 30 NY2d 122; Matter of Nassau Ins. Co. v McMorris, 41 NY2d 701; City of Amsterdam v Helsby, 37 NY2d 19; Mount St. Mary’s Hosp. of Niagara Falls v Catherwood, 26 NY2d 493.) III. The amendments (L 1977, ch 82) to section 3020-a of the Education Law are not in any way violative of due process or equal protection. (Wiggins v Town of Somers, 4 NY2d 215; People v Scott, 26 NY2d 286; Board of Educ. v Associated Teachers of Huntington, 30 NY2d 122; Board of Regents v Roth, 408 US 564; Robinson v Hanrahan, 409 US 38; Bell v Burson, 402 US 535; Willner v Committee on Character, 373 US 96; City of Amsterdam v Helsby, 37 NY2d 19; Matter of Bott v Board of Educ., 51 AD2d 81, 41 NY2d 265; Mount St. Mary’s Hosp. of Niagara Falls v Catherwood, 26 NY2d 493.)

      Robert Abrams, Attorney-General (Shirley Adelson Siegel and John Q. Driscoll of counsel), in his statutory capacity under section 71 of the Executive Law.
    I. In amending section 3020-a of the Education. Law to provide for binding arbitration of disciplinary charges against tenured teachers, the Legislature did not deprive appellants of any inherent right or authority under the Constitution of the State of New York or of the United States. (Matter of Bott v Board of Educ., 51 AD2d 81, 41 NY2d 265; Matter of Harris v Mechanicville Cent. School Dist., 86 Misc 2d 144, 57 AD2d 231, 45 NY2d 279; Matter of Jerry v Board of Educ., 35 NY2d 534; Laird v Tatum, 408 US 1; United States v Raines, 362 US 17; Williams v Mayor, 289 US 36; Trenton v New Jersey, 262 US 182; City of Amsterdam v Helsby, 37 NY2d 19; Matter of Cohoes City School Dist. v Cohoes Teachers’ Assn., 40 NY2d 774; Matter of Boyd v Collins, 11 NY2d 228.) II. The reference in the statute to a list of arbitrators maintained by the American Arbitration Association does not constitute an exclusive privilege or franchise. (Farrington v Pinckney, 1 NY2d 74; 8200 Realty Corp. v Lindsay, 27 NY2d 124; Lanza v Wagner, 11 NY2d 317; Economic Power & Constr. Co. v City of Buffalo, 195 NY 286.)
   OPINION OF THE COURT

Per Curiam.

The issue in this case is the constitutionality of section 3020-a of the Education Law as amended by chapter 82 of the Laws of 1977. That amendment requires that the chairman of a panel hearing charges against a tenured person be chosen from a list furnished by the American Arbitration Association. Petitioners predicate their constitutional challenge on the contentions that the amendment to the bill which became chapter 82 embraced more than one. subject and was a private bill granting an exclusive franchise.

It has been settled since at least Matter of Lakeland Water Dist. v Onondaga County Water Auth. (24 NY2d 400) that an article 78 proceeding may not be used to test the constitutionality of a legislative enactment, as distinct from the constitutionality of its application (accord Matter of Kovarsky v Housing & Dev. Admin. of City of N. Y., 31 NY2d 184). The matter should have been converted to a declaratory judgment action, therefore, all necessary parties, including the Attorney-General, being before the court. We now convert it.

Equally well settled is it that the factual data on which, a claim of unconstitutionality is based is to be presented as evidence to the trial court not as addenda to the briefs submitted in this court, the more particularly not in a reply brief which respondent then has no opportunity to refute. While judicial notice may be taken of some official documents by appellate courts, it is simply improper to make wholesale presentation of factual data through the medium of addenda to a brief. However, the only improper factual material essential to petitioners’ arguments is that the American Arbitration Association receives some pay for what it does under the statute under attack. Rather than remit for trial, with consequent waste of judicial resources, we deal with the constitutionality issues as though the facts relating to payment were properly before us.

Preliminarily we note that, contrary to the Attorney-General’s argument, the individual petitioners (plaintiffs), though not the board, have standing to sue because, if in fact the statute is unconstitutional, they can be removed for knowingly participating in an arbitration before a panel unconstitutionally selected (Board of Educ. v Allen, 20 NY2d 109, 115, n 1, 118).

Coming then to the merits of the appeal, we note our agreement with the reasoning upon which the Appellate Division concluded that there is no substance to the equal protection and due process challenges, and limit our discussion to the contentions that section 3020-a violates the prohibitions of the New York State Constitution against a private bill embracing more than one subject (art III, § 15) and against a private bill granting "any exclusive privilege, immunity or franchise whatever” (art III, § 17).

Both arguments were deemed inconsequential by the Appellate Division, which did not, however, state its reasons for that conclusion. Simply put, the reason petitioners’ attack cannot succeed is that chapter 82 of the Laws of 1977, which enacted section 3020-a, was not a private bill. As its title indicated it was "An Act to amend the education law, in relation to hearing procedures for certain teachers.” What it did was to revise the procedure for the hearing of charges against a person enjoying the benefits of tenure, a procedure applicable to school districts and teachers throughout the State. It was, therefore, quite clearly a general law, not a private or local law (see Hotel Dorset Co. v Trust for Cultural Resources, 46 NY2d 358).

The section establishes a tripartite hearing panel, one to be chosen by the employee and one to be chosen by the employing board from a list maintained for that purpose ■ by the Commissioner of Education. The third member is then chosen, from a list supplied by the American Arbitration Association, by mutual agreement of the two appointed members or, if they cannot agree, by the Commissioner of Education.

Thus the only part played by the Arbitration Association is to prepare a list of qualified persons from which a panel chairman can be selected by others than the association. That, as petitioners’ "evidence” shows, the association has received reimbursement of $500 for its administrative expenses in preparing the list, or that a person from its list is to be compensated at the rates usually paid him for his services as an arbiter for the association does not make the law the grant of an exclusive franchise to the association or a private bill. The commissioner’s list from which the employee and employer members are drawn is composed of professionals in teaching or members of school boards, who cannot be expected to be experienced at running panel hearings. The Arbitration Association list, on the other hand, will be by reason of its source composed of persons with such experience.

Thus, rather than granting the association an exclusive franchise, the association prepares, as a service to the Department of Education for which it is reimbursed only for its administrative expenses, a list of nominees. Appointment from that list, however, is not by the association, but by the employer and employee panel members, or by the commissioner.

To paraphrase what we said in Lanza v Wagner (11 NY2d 317, 333) we perceive no constitutional bar to the legislative designation of the association as a nominating body, who can reasonably be expected to present to the commissioner, on an objective and nonpartisan basis, the names of individuals exceptionally qualified by prior service in the field of adversarial hearings for service as chairman of a hearing panel under section 3020-a.

For the foregoing reasons, the judgment of the Appellate Division should be modified to convert so much of the article 78 proceeding as sought a declaration of unconstitutionality to a declaratory judgment action and remitted for the entry of judgment declaring section 3020-a of the Education Law constitutional, and, as so modified, should be affirmed. As to the board the action should be dismissed for lack of standing.

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

Judgment modified, with costs to respondents, and the matter remitted to Supreme Court, Allegany County, for the entry of judgment in accordance with the opinion herein and, as so modified, affirmed.


author: Jasen, J. Meyer, J.

text:
    Howard Golden et al., Appellants, v Edward I. Koch, Individually and as Mayor of the City of New York, et al., Respondents.
    Argued February 11, 1980;
    decided April 3, 1980

      POINTS OF COUNSEL

      Harold L. Fisher, Maurice Sieradzki, Richard G. Finkelstein and Bethlyn Bates for appellants.
    I. The court below correctly applied the "intelligent, careful voter” concept to the documents available to the voters, as well as to the charter itself, in determining that the Mayor of New York City is prohibited from participating in Board of Estimate votes and actions on budget modifications under subdivision b of section 124 of the New York City Charter. (Matter of Kuhn v Curran, 294 NY 207; Matter of City of New York v Beame, 37 AD2d 89; Burke v Kern, 287 NY 203; Patrolmen’s Benevolent Assn. of City of N. Y. v City of New York, 41 NY2d 205; Matter of People’s R. T. Co. v Dash, 125 NY 93; Matter of Tobin v Waters, 6 Misc 2d 159; Squadrito v Griebsch, 1 NY2d 471.) II. The language of the charter barring the Mayor’s participation "in any action or vote of the Board of Estimate on the budget” is clear, unequivocal and extends beyond the approval process to prevent the Mayor of the City of New York, as a member of the Board of Estimate, from casting any vote during consideration of budget modifications under the provisions of subdivision b of section 124 of the Charter of the City of New York. (Shilbury v Board of Supervisors of County of Sullivan, 54 Misc 2d 979; Syracuse Sav. Bank v Yorkshire Ins. Co., 301 NY 403; Grossman v Young, 70 F Supp 970.)

      Allen G. Schwartz, Corporation Counsel (Jeffrey D. Friedlander, James G. Greilsheimer, Daniel Muller and Paul T. Rep-hen of counsel), for respondent.
    I. The Mayor is a member of the Board of Estimate and nothing in the New York City Charter precludes him from voting as a member of that body on modifications to the city’s expense budget proposed pursuant to subdivision b of section 124 of the city charter. (Patrolmen’s Benevolent Assn. of City of N. Y. v City of New York, 41 NY2d 205; Matter of Kuhn v Curran, 294 NY 207; Matter of City of New York v Beame, 37 AD2d 89;. Squadrito v Griebsch, 1 NY2d 471; Rivers v Sauter, 26 NY2d 260.) II. The exclusion of the Mayor from voting on budget modifications pursuant to subdivision b of section 124 would render the role of the Board of Estimate in such modifications unconstitutional. This result is avoided by giving subdivision b of section 124 a meaning consistent with the plain language of the charter. (Bergerman v Lindsay, 25 NY2d 405, 398 US 955; Avery v Midland County, 390 US 474; Hadley v Junior Coll. Dist., 397 US 50; Seaman v Fedourich, 16 NY2d 94.)
   OPINION OF THE COURT

Jasen, J.

The question presented for our determination on this appeal is whether the Mayor of the City of New York may vote as a member of the Board of Estimate of the City of New York when that body considers budget modifications made by the Mayor pursuant to subdivision b of section 124 of the New York City Charter.

In this declaratory judgment action, plaintiffs, the president of the New York City Council and the presidents of each of the five Boroughs of the City of New York, all of whom are members of the Board of Estimate, seek a judgment declaring that defendant, the Mayor of the City of New York, also a member of the board, may not vote during the board’s consideration of budget modifications proposed by the Mayor and an injunction preventing him from doing so. Plaintiffs contend that subdivision d of section 120 of the New York City Charter which provides that "[t]he mayor shall not participate in any action or vote of the board of estimate on the budget” prevents the Mayor from voting on any matter which relates to the approval of the budget in any way. Defendant concedes that he has no power to vote upon the approval of the original budget, but contends that this limitation does not extend to his power to vote upon proposed modifications to the previously adopted budget. He points out that his power to vote on budget modifications is limited only in three specific instances enumerated in subdivision f of section 124 of the charter, which incorporates by reference the language of section 120, and argues that as to a modification undertaken pursuant to subdivision b of section 124, his power to vote is unimpeded.

Special Term noted that because the charter was adopted by popular vote, it must be construed by seeking "the meaning which the words would convey to an intelligent, careful voter.” (Matter of Kuhn v Curran, 294 NY 207, 217; see, also, Matter of City of New York v Beame, 37 AD2d 89, 92.) The court found that "the intelligent, careful voter examining the charter and explanatory data made available to him would be led to the reasonable belief that, the Charter excluded the Mayor’s participation from any Board of Estimate vote on the budget” and granted summary judgment in favor of plaintiffs.

The Appellate Division reversed and granted summary judgment to defendant. The court reasoned that the limitation on the Mayor’s power to vote embodied in subdivision d of section 120 of the New York City Charter applies only to submission and approval of the budget, which is but one part of the budgetary process, and that an "intelligent, careful voter” would have thought that subdivision d of section 120 should apply only to such budget approval and to those other sections of the charter which specifically incorporate it by reference. We now affirm, but employ an analysis different from that utilized by the Appellate Division.

Both of the courts below reasoned that the charter’s approval by public referendum requires that a court, in construing that document, seek the meaning that the words of the charter would convey to the "intelligent, careful voter”. (Matter of Kuhn v Curran, 294 NY 207, 217, supra.) In our view, the time has come to abandon this standard of analysis in favor of a more realistic approach. While the concept that publicly approved provisions of law must be construed by seeking the intent of the electors approving them has surface appeal, when one considers the documents by which voters are apprised of constitutional or charter amendments, the places at which they are made available, and the time normally required to peruse, much less digest, the content of such materials, it is clear that so few voters do what the "intelligent, careful voter” rule assumes they do that this standard has become little more than an empty legal fiction. We see no reason why the courts of this State should be required to continue to employ such a standard. Therefore, we now hold that publicly approved provisions of law should be interpreted by applying the traditionally accepted standards of statutory construction.

These standards require that the charter be read as a whole (McKinney’s Cons Laws of NY, Book 1, Statutes, § 97) and that each word in the charter be considered in arriving at its meaning (McKinney’s Cons Laws of NY, Book 1, Statutes, § 231). Applying these standards, we conclude that the restriction upon the Mayor’s voting power in subdivision d of section 120 of the revised charter should be limited to the approval of the original budget. To read that section as applying to subsequent budget modifications undertaken pursuant to subdivision b of section 124 would render the specific incorporation of section 120 in a selected few of the modification provisions in subdivision f of section 124 meaningless. Moreover, it has long been held that where a statute describes the particular situations in which it is to apply, "an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded.” (McKinney’s Cons Laws of NY, Book 1, Statutes, § 240; see, also, Patrolmen’s Benevolent Assn. of City of N. Y. v City of New York, 41 NY2d 205, 208-209.) Thus, we hold that the Mayor’s power to vote upon budget modifications is limited only in the specific instances delineated in subdivision f of section 124.

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

Meyer, J.

(dissenting). While I heartedly endorse abandonment of the "intelligent, careful voter” rule, I dissent and vote to reverse and reinstate the judgment entered by Mr. Justice Stecher, essentially for the reasons stated in his thorough and thoughtful opinion, the materials referred to therein being, in my view, persuasive that it was not intended that the Mayor vote on budget modifications or any other phase of the budget.

Chief Judge Cooke and Judges Jones, Wachtler and Fuchsberg concur with Judge Jasen; Judge Meyer dissents and votes to reverse in a memorandum in which Judge Gabrielli concurs.

Order affirmed.


text:
    In the Matter of Daniel F. Conlin, as President of Local Union 891, International Union of Operating Engineers, AFL-CIO, on Behalf of Himself and All School Custodian and School Custodian-Engineer Members of Said Union, Appellant, v Stephen R. Aiello et al., Constituting the Board of Education of the City School District of the City of New York, Respondents.
    Argued January 3, 1980;
    decided February 5, 1980

      APPEARANCES OF COUNSEL

      James M. Kenny, Joseph M. Cassin and Mark C. Kelly for appellant.

      Allen G. Schwartz, Corporation Counsel (Carolyn E. Demarest and L. Kevin Sheridan of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (64 AD2d 921).

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


text:
    Richard G. Glamm, Appellant, v City of Amsterdam, Respondent.
    Argued January 3, 1980;
    decided February 5, 1980

      APPEARANCES OF COUNSEL

      Robert J. Krzys for appellant.

      Howard D. Clayton for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (67 AD2d 1056; see, also, Matter of Beary v City of Rye, 44 NY2d 398).

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


text:
    In the Matter of Liquidation of Professional Insurance Company of New York. N. Mitchel Jason, Appellant; Superintendent of Insurance of the State of New York, Respondent.
    Argued January 4, 1980;
    decided February 5, 1980

      APPEARANCES OF COUNSEL

      Irwin M. Berg for appellant.

      Gerald Kahn, Samuel G. Fredman and Charles N. Newman for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (67 AD2d 850).

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


text:
    The People of the State of New York, Respondent, v William Ortiz, Appellant.
    Argued January 3,1980;
    decided February 5, 1980
    APPEARANCES OF COUNSEL

      Louis G. Adolfsen and John A. K. Bradley for appellant.

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

Memorandum.

The order appealed from should be affirmed. The court specifically alerted defendant to the possibility that a conflict of interest might flow from joint representation of defendant and a codefendant by the same attorney, and informed defendant of his right to separate counsel.- Despite this admonition, defendant insisted on continued joint representation. Having determined to persist in that course of action, defendant may not subsequently contend that he was deprived of effective assistance of counsel because of a possible conflict of interest arising from that joint representation (see People v Gomberg, 38 NY2d 307; cf. People v Macerola, 47 NY2d 257).

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Appellant, v Melvin R. Estes-El, Respondent.
    Argued January 4, 1980;
    decided February 5, 1980

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (Benjamin H. Green and Vivian Berger of counsel), for appellant.

      Marilyn A. Kneeland and William E. Hellerstein for respondent.
   OPINION OF THE COURT

Order affirmed for the reasons stated in the memorandum at the Appellate Term. It is the city’s burden to clarify the ambiguity in the Administrative Code which all members of the court recognize exists.

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


text:
    Charlie L. Moore, Appellant, v Leaseway Transportation Corp. et al., Respondents.
    Argued January 2, 1980;
    decided February 5, 1980

      APPEARANCES OF COUNSEL

      Martin S. Rothman and Joseph Tursone for appellant.

      Philip Hoffer, Raymond J. MacDonnell, Jerome Prince, Rose L. Hoffer and Peter T. Affatato for respondents.
   OPINION OF THE COURT

Memorandum.

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

The resolution of conflicts in the proof, involving as it principally did issues of credibility, was properly left to the jury, and appellant now points to no errors of law requiring disturbance of the jury’s verdict.

We decline, the invitation of appellant to reconsider what he concedes is the present rule of law in New York, namely, that, if the jury finds that the owner of a motor vehicle has forbidden its user to carry any passenger in the vehicle, the owner is not liable to a person who nevertheless is permitted to ride as a passenger for injuries suffered in consequence of the negligent operation of the vehicle by the user. (See PJI 2:247, and associated comment.)

As to asserted errors on the part of the trial court, it appears either that the issues sought to be raised were not preserved for our review, or that, if preserved, they are without merit. The pertinent provisions of the Federal Transportation Act and rules of the New York State Public Service Commission restricting transportation of unauthorized persons were read to the jury. The contention now advanced that the trial court erroneously failed to instruct the jury as to the relation of such rules to the issues presented in the case has not been preserved for our review in consequence of the. failure of appellant to request a pertinent charge or to object on this ground to the instructions as given by the court. Proffered testimony by appellant as to conversations he assertedly had with Jenkins, the deceased driver, was properly excluded as hearsay and therefore not binding on defendants. The photograph of Tractor No. 34, the "sister tractor” to No. 35 (which was completely destroyed in the accident), was properly admitted in evidence on the basis of testimony, including that of appellant himself, that the photograph, although not of Tractor No. 35, was nonetheless a fair and accurate representation of the tractor involved in the accident. By counterpoint no error was committed in failing to admit four police photographs as to which the only witness interrogated was unable to say whether they represented a true and fair representation of the vehicle at the time — if, indeed, it may be taken that such photos were ever formerly offered in evidence. Finally no protest was raised at trial as to the court’s marshaling of the evidence on which now to base an assertion that undue emphasis was placed by the trial court on. conversations between other employees of defendant Derrico and Jenkins, the deceased driver.

We have examined appellant’s other contentions and find them to be without merit.

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

Order affirmed.


text:
    The People of the State of New York, Respondent, v Joseph Nowakowski, Appellant.
    Argued January 4, 1980;
    decided February 5, 1980

      APPEARANCES OF COUNSEL

      Samuel J. Castellino, Public Defender (M. Joseph Danaher of counsel), for appellant.

      D. Bruce Crew, III, District Attorney (James Hayden of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified and the case remitted to County Court for reconsideration of the CPL 30.30 motion to dismiss the indictment following an appropriate hearing.

We conclude that it was error for the court to have disposed of the motion to dismiss in this instance, disclosing on its face an extended delay, on the inadequate, skeletal record before it.

Accordingly, the case should be remitted to County Court for a hearing and reconsideration of the motion. If the court then denies the motion, the judgment of conviction should be amended to reflect such denial, thereby to provide an appealable paper. If the motion is granted the resulting order dismissing the indictment would similarly support an appeal.

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

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


text:
    First National Bank of Highland, Respondent, v Merchant’s Mutual Insurance Company, Appellant.
    Argued January 2, 1980;
    decided February 5, 1980

      APPEARANCES OF COUNSEL

      Vincent Bradley and Daniel J. Gaffney for appellant.

      John G. Sisti for respondent.
   OPINION OF THE COURT

Order reversed, with costs, and summary judgment granted in favor of defendant dismissing the complaint for the reasons stated in the dissenting opinion by the late Mr. Justice John L. Larkin at the Appellate Division (65 AD2d 59, 61-62).

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


text:
    Michael J. Huffe et al., Appellants, v James J. Jarcho et al., Respondents.
    Argued January 3, 1980;
    decided February 5, 1980

      APPEARANCES OF COUNSEL

      Harold Skovronsky for appellants.

      Abraham Wilson for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the case remitted for review of the facts, if any, relevant to the determination.

When the eligibility requirements of the union pension plan were amended in 1963, though the phrase "covered employment with a contributing employer” was substituted at various other points for "union membership”, the provision mandating a 15-year union membership period was deleted in its entirety. Thus, there was no 15-year requirement of any kind, with the result, as we recently noted in Mitzner v Jarcho (44 NY2d 39, 47), that "prior to the 1966 amendment one could qualify for a full pension, having worked for contributing employers for only a very brief period”. The Appellate Division therefore erred in construing the plan prior to the 1966 amendment as requiring 15 nonconsecutive years of covered employment with contributing employers.

The imposition of this condition on eligibility, which neither plaintiff satisfied, led the Appellate Division to dismiss plaintiff’s claims for pension benefits without ever reaching the issue of whether the application of the 15-year continuous employment requirement to plaintiffs was arbitrary and unreasonable (see Mitzner v Jarcho, supra, pp 46-47).

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

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


text:
    In the Matter of Barby Land Corp., Appellant, v Harold Ziegner et al., Constituting the Board of Zoning Appeals of the Town of Babylon, Respondents.
    Submitted January 4, 1980;
    decided February 5, 1980

      APPEARANCES OF COUNSEL

      John E. Lander for appellant.

      Joseph F. Klein, Town Attorney (Raymond F. Wolfram of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (65 AD2d 793).

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


text:
    In the Matter of Wade F., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Submitted January 2, 1980;
    decided February 5, 1980

      APPEARANCES OF COUNSEL

      Barbara B. Butler, William E. Hellerstein and Charles Schinitsky for appellant.

      Allen G. Schwartz, Corporation Counsel (Alexander J. Wulwich and Carolyn E. Demarest of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, without costs. The position appellant Wade F. took in relation to the complaining witness, the fact that the latter was confined between the three boys and a car, the time at which Wade took up his position in relation to Christopher’s threatened use of the razor, the concerted movement of the three boys away from the scene were sufficient to sustain the finding that Wade participated in an act which if committed by an adult would constitute robbery in the first degree.

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

Order affirmed.


text:
    Honeoye Falls-Lima Central School District, Respondent, v Honeoye Falls-Lima Education Association et al., Appellants.
    Argued January 3, 1980;
    decided February 5, 1980

      APPEARANCES OF COUNSEL

      Ivor R. Moskowitz and Bernard F. Ashe for appellant.

      Curtis W. Barker for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division' should be modified, with costs to appellants, to grant a stay of arbitration with respect to section 9 of article VI of the contract, but otherwise to deny the petition.

Whether the curriculum changes initiated by the board constituted "a change in policy or practice” within the meaning of section 1 of article XIX of the contract between the parties is a matter of contractual agreement within the arbitration provision of the contract (art III, § 5.4). Since section 1 of article XIX requires only that proposed changes be submitted for review and mutual agreement to a committee formed in conjunction with the association, but expressly provides that "[f]inal consideration is at the discretion of the Board of Education”, there is no public policy prohibition against submission to arbitration of the questions whether there was a change in policy and a failure to follow the procedure contracted for (Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn., 45 NY2d 411; Matter of Board of Educ. v United Federation of Teachers, 46 NY2d 1018).

Arbitration with respect to the job security provision of the contract (art VI, § 9) is, however, another matter. While the contract provision requires layoff of those with the least seniority in the school district, subdivision 2 of section 2510 of the Education Law directs that "the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued” (emphasis added). The apparent purpose of that provision is to maintain teaching proficiency which would otherwise be denigrated if, for example, the abolition of three vocational training positions required the dismissal of three teachers of romance languages, or vice versa, simply because they happened to have been the last three persons employed.

We have previously made clear that it is beyond the power of a school board to surrender through collective bargaining a responsibility vested in the board in the interest of maintaining adequate standards in the classrooms as, for example, the granting or withholding of tenure (Matter of Cohoes City-School Dist. v Cohoes Teachers Assn., 40 NY2d 774, 778). A fortiori, an express statutory direction related to maintenance of standards, such as subdivision 2 of section 2510, may not be the subject of arbitration (cf. Matter of Candor Cent. School Dist. [Candor Teachers Assn.], 42 NY2d 266). Matter of Feinerman v Board of Coop. Educational Servs. (48 NY2d 491) is not to the contrary, for the effect upon educational standards in the instant case is greater and more direct than was the exclusion from the educational system of the individual teacher, who had agreed to such exclusion, that was approved in Feinerman.

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

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


text:
    In the Matter of Daniel D. Coker et al., Appellants, v New York City Transit Authority, Respondent.
    Submitted January 4, 1980;
    decided February 5, 1980

      APPEARANCES OF COUNSEL

      Howard J. Gardner for appellants.

      Helen R. Cassidy, John A. Murray, Kenneth Howard Schiffrin and George S. Grupsmith for respondent.
   OPINION OF THE COURT

Judgment affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (67 AD2d 908).

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


text:
    C. E. Hooper, Inc., Appellant, v Perlberg, Monness, Williams & Sidel et al., Defendants, and Adrian R. Kristeller, Respondent.
    Decided February 5, 1980
    APPEARANCES OF COUNSEL

      Richard M. Zuckerman for appellant.

      Charles Miller for respondent.
   OPINION OF THE COURT

Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (see New York Auction Co. Div. of Std. Prudential Corp. v Belt, 40 NY2d 1079).


text:
    Jay Le Grand, Appellant, v Tugendhaft, Robson & Green, P. C., Respondent.
    Submitted December 24,1979;
    decided February 5, 1980
   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 (see Lizza Inds. v Long Is. Light. Co., 36 NY2d 754).


text:
    In the Matter of Eugene W. Manning, Appellant, v Board of Trustees of the New York City Fire Department Article 1-B Pension Fund et al., Respondents.
    Decided February 5, 1980
   Appeal from so much of the Appellate Division order as dismissed an appeal from Supreme Court order denying petitioner’s motion for reargument, dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that that portion of the order appealed from does not finally determine the proceeding within the meaning of the Constitution; appeal otherwise dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Gary Nicholson et al., Appellants-Respondents, v State Commission on Judicial Conduct et al., Respondents-Appellants.
    Submitted January 28,1980;
    decided February 5, 1980
   Motion by commission for an order vacating the stay herein denied. Motion by commission for leave to cross-appeal granted. Case set down for argument during the session of this court commencing on April 21, 1980, appellants-respondents’ papers on appeal to be served and filed on or before February 26 and respondents-appellants’ on or before March 25, 1980.


text:
    Monroe-Livingston Sanitary Landfill, Inc., Appellant, v Town of Caledonia, Respondent.
    Submitted December 31, 1979;
    decided February 5, 1980
   Motion for leave to appeal denied upon the ground that an appeal lies as of right. Motion to dismiss appeal taken as of right denied.


text:
    The People of the State of New York, Appellant, v Gary Mandel, Michael De Vito and Theodore Buckley, Respondents.
    Submitted January 28, 1980;
    decided February 5, 1980
   Motions by (A) defendant Mandel and (B) defendants De Vito and Buckley to amend this court’s decision and order dated December 17, 1979 denied. Motions by (C) defendants De Vito and Buckley and (D) defendant Mandel for stays and bail continuations dismissed as moot.


text:
    In the Matter of James L. Kane, a Justice of the Supreme Court of the State of New York, Petitioner, v State Commission on Judicial Conduct, Respondent.
    Decided February 5, 1980
   On the court’s own motion, pursuant to article VI (§ 22, subd e) of the New York State Constitution, and section 44 (subd 8, par [a]) of the Judiciary Law, it is determined that, pending the proceeding to review the determination of the State Commission on Judicial Conduct that he should be removed, Honorable James L. Kane not be suspended from the exercise of the powers of his office of Justice of the Supreme Court of the State of New York, Eighth Judicial District. Proceeding to review commenced January 10, 1980 set down for argument during the session of this court commencing April 21, 1980, petitioner’s papers to be served and filed on or before March 3, 1980 and respondent’s on or before March 31, 1980.


text:
    In the Matter of Raymond B. Harding, Appellant, v James P. Melton, as Commissioner of Motor Vehicles of the State of New York, et al., Respondents.
    Argued January 10, 1980;
    decided February 7, 1980

      APPEARANCES OF COUNSEL

      Herbert Rubin, Howard L. Wexler and David B. Alford for appellant.

      Robert Abrams, Attorney-General (Joseph J. Micare and
      Shirley Adelson Siegel of counsel), for James P. Melton, respondent.

      Charles J. Wilcox, District Attorney (Robert T. Law, III, of counsel), for respondent pro se.

   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Mr. Justice J. Clarence Herlihy at the Appellate Division (67 AD2d 242).

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


text:
    Marvin A. Block et al., Appellants, v Lena Landegger, as Executrix of Karl F. Landegger, Deceased, et al., Respondents, et al., Defendants.
    Submitted January 8, 1980;
    decided February 7, 1980

      APPEARANCES OF COUNSEL

      Abraham K. Weber for appellants.

      Joel W. Sternman and Steven F. Miller for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (66 AD2d 707).

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


text:
    Irwin Kupferman et al., Doing Business as the Garnerville Home for Adults, Appellants, v New York State Board of Social Welfare et al., Respondents.
    Argued January 9, 1980;
    decided February 7, 1980

      APPEARANCES OF COUNSEL

      Michael T. Wallender for appellants.

      Robert Abrams, Attorney-General (William J. Kogan and Shirley Adelson Siegel of counsel), for respondents.

      Charles J. Hynes, Deputy Attorney-General (Valarie Bacon and Hillel Hoffman of counsel), amicus curiae.

      Leonard S. Clark and John F. Castellano for Josephine Andrews and others, amici curiae.

   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Mr. Justice Louis M. Greenblott at the Appellate Division (66 AD2d 540).

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


text:
    In the Matter of Rotterdam-Mohanasen Central School District, Respondent, v State Division of Human Rights, Appellant.
    Argued January 4, 1980;
    decided February 7, 1980

      APPEARANCES OF COUNSEL

      Ann Thacher Anderson and David C. King for appellant.
    . Joseph J. Buchyn for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (70 AD2d 727).

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


text:
    Louise R. Spillman, Also Known as Louise S. Bryant, Respondent, v Richard W. Spillman, Appellant.
    Argued January 8, 1980;
    decided February 7, 1980

      APPEARANCES OF COUNSEL

      Charles F. Darlington, III, for appellant.

      Richard C. Fields for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated by that court. In addition we cannot say that the Appellate Division’s conclusion that the reconstructed record was adequate for its review was erroneous as a matter of law.

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

Order affirmed.


text:
    Edward M. Levine, Respondent, v New York City Transit Authority et al., Appellants.
    Argued January 8, 1980;
    decided February 7, 1980

      APPEARANCES OF COUNSEL

      Kenneth Howard Schiffrin, Helen R. Cassidy and John A. Murray for appellants.

      Lewis R. Friedman, Richard M. Asche, Jack T. Litman and Herman Kaufman for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (70 AD2d 900), and the question certified answered in the affirmative. If section 75 of the Civil Service Law is to function as the Transit Authority suggests, it is the Legislature rather than this court which must so provide.

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


text:
    A. R. Fuels, Inc., Respondent, v City of New York, Appellant.
    Argued January 9, 1980;
    decided February 7, 1980

      APPEARANCES OF COUNSEL

      Allen G. Schwartz, Corporation Counsel (Craig A. Landy and Leonard Koerner of counsel), for appellant.

      George Sassower for respondent.
   OPINION OF THE COURT

Memorandum.

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

Nothing in the wording of section 105 of the General Municipal Law proscribes the city’s acceptance of a condition permitting withdrawal of a bid after less than 45 days, nor has the city pointed to any legislative history so suggesting. Having so provided in its standard form of contract for some 30 years, the city can, as to future contracts, obviate any problem by amending its contract form. It cannot, however, impose such a change retroactively on plaintiff by contorting the words of the statute.

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

Order affirmed.


text:
    In the Matter of Michael A. Yannett, as Operator of Endicott Nursing Home, Appellant, v Richard A. Berman, as Director of Health Systems Management, et al., Respondents.
    Argued January 10, 1980;
    decided February 7, 1980

      APPEARANCES OF COUNSEL

      N. Theodore Summer and James S. Gleason for appellant.

      Robert Abrams, Attorney-General (Joseph J. Micare and Shirley Adelson Siegel of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The appeal as of right in this article 78 proceeding should be dismissed for want of a substantial constitutional question, but on the court’s own motion appellant should be granted leave to appeal. In view of our reversal and dismissal of the indictment for the predicate felony in People v Yannett (49 NY2d 296, decided herewith), the judgment confirming respondents’ determination should be reversed, with costs, and the determination made under subdivision 5 of section 2806 of the Public Health Law annulled. That disposition is, however, without prejudice to such further disciplinary proceeding, if any, as respondents may be advised to bring on the basis of the underlying facts.

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

Appeal taken as of right dismissed, without costs. On the court’s own motion, leave to appeal granted to petitioner. Judgment reversed, without costs, and respondents’ determination annulled.


text:
    In the Matter of the Claim of Nick Wall, Claimant, v Premium Transport Service et al., Respondents, and Special Disability Fund, Appellant. Workers’ Compensation Board, Respondent.
    Argued January 2,1980;
    decided February 7, 1980

      APPEARANCES OF COUNSEL

      Patrick E. Harnedy and George Cholet for appellant.

      Philip J. Caputo for Premium Transport Service and another, respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (67 AD2d 759).

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


text:
    In the Matter of William J. Mezzetti Associates, Inc., Appellant, v State Liquor Authority, Respondent.
    Argued January 7, 1980;
    decided February 7, 1980

      APPEARANCES OF COUNSEL

      Abraham Walters, Abraham M. Buchman, Raymond Reisler, Joel Buchman and Mark Koslowe for appellant.

      Martin P. Mehler and Warren B. Pesetsky for respondent.

      Robert Abrams, Attorney-General (Burton Herman and Shirley Adelson Siegel of counsel), in his statutory capacity pursuant to section 71 of the Executive Law.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division. If considerations of current public policy suggest that the statute should be amended, petition for such remedy must be addressed to the Legislature.

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

Judgment affirmed.


text:
    The People of the State of New York, Respondent, v Thomas Seidita, Carmine Spulzo and Valentino Bove, Appellants.
    Argued January 8, 1980;
    decided February 7, 1980

      APPEARANCES OF COUNSEL

      Anne C. Feigus and Ronald P. Fischetti for appellants.

      Eugene Gold, District Attorney (Alan D. Rubinstein of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

We agree with that court that the gambling records and paraphernalia recovered on execution of both the Gates Avenue and the Dumont Avenue search warrants are admissible. The Gates Avenue search warrant was issued on the basis of intercepts obtained pursuant to a wiretap on the telephone located at that address. No challenge is raised as to the validity of the tap which commenced on August 22 and was terminated on September 12, 1975. Although the tapes on this tap were not sealed until September 18, 1975 (and thus as the People concede are themselves inadmissible), the intercepts therefrom were used to obtain the search warrant on September 12, 1975, prior to the time when sealing was required. Accordingly, the evidence acquired pursuant to that warrant is not precluded (People v Weiss, 48 NY2d 988).

The search warrant for the premises at 1314 Dumont Avenue was obtained on September 12, 1975 as well, on the basis of statements made by an informer whose reliability had been previously demonstrated, all as set forth in the affidavit of the detective applying for the warrant. These statements included advice that the informer was himself a runner in a policy operation and that he had called in policy wagers to the telephone located at the Dumont Avenue premises on September 8, 9, 10 and 11, 1975, thus providing probable cause for the issuance of the warrant.

The detective’s affidavit also included information obtained under another wiretap order which served to corroborate the statements of the informer. The tapes on this wiretap order, however, had not been sealed as required by statute at the time of the issuance of the Dumont Avenue warrant. Accordingly, this intercept data was unavailable to support the issuance of that warrant. But the infirmity of the corroborative proof does, not serve to vitiate the validity of the statements of the informer which, standing alone, provided probable cause for the issuance of the search warrant.

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

Order affirmed in a memorandum.

       Defendant’s reliance on People v Sher (38 NY2d 600) is not persuasive inasmuch as the analysis adopted in the Weiss case was not proposed or considered in Sher.


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    In the Matter of the Arbitration between Albert Furstenberg, Respondent, and Aetna Casualty & Surety Co., Respondent; Allstate Insurance Co., Appellant.
    Argued January 9, 1980;
    decided February 7, 1980

      APPEARANCES OF COUNSEL

      Abraham L. Shapiro and Gerald Richman for appellant.

      Ignatius John Melito, J. Robert Morris and Steven Di Joseph for Aetna Casualty & Surety Co., respondent.
   OPINION OF THE COURT

Memorandum.

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

Recognizing that Aetna Casualty & Surety Co. was obliged under the statute to accept the arbitral forum for the resolution of the claim against it, we agree that the standard for judicial review of the award is more exacting than in voluntary arbitration (cf. Mount St. Mary’s Hosp. of Niagara Falls v Catherwood, 26 NY2d 493). We conclude, however, that it was error on the part of the Appellate Division to set this award aside.

It is not suggested that the award was not made in good faith or was without basis in the evidence submitted to the arbitrator. Nor is there any intimation of trespass of constitutional rights or violation of strong public policy. To the extent that it is pertinent it cannot be seriously contended that there was not a rational basis for the award or that the award was not otherwise grounded in reason. In these circumstances we are not prepared, in the disposition of this appeal, to hold as a matter of law that the award must be, set aside because it may be said that the Appellate Division in cases subsequently considered by it reached a different result with respect to the effectiveness of similarly defective notices of termination.

Chief Judge Cooke and Judges Jasen, Gabbielli, Jones, Wachtleb, Fuchsbebg and Meyeb concur.

Order reversed, with costs, and the judgment of Supreme Court, New York County, reinstated in a memorandum.


text:
    William R. Klein, Appellant, v Chaeles G. Clay et al., Respondents.
    Decided February 7, 1980
   Appeals dismissed, without costs, by the Court of Appeals sua sponte, upon the grounds that the Appellate Division orders dated September 25, 1979 and December 6, 1979 do not finally determine the action within the meaning of the Constitution and that no appeal lies as of right from the Appellate Division order of unanimous affirmance dated July 10, 1979.


text:
    Guiseppe Mauro et al., Plaintiffs, v Joseph McCrindle et al., Defendants. Joseph McCrindle et al., Third-Party Plaintiffs-Respondents, v Complete Conduit & Pipe Service Corp. et al., Third-Party Defendants, and John Scala, Third-Party Defendant-Appellant.
    Submitted January 7, 1980;
    decided February 7, 1980
   Motion to dismiss the appeal herein denied. Cross motion for a stay denied. Judge Meyer taking no part.


text:
    Mohegan Colony Association, Inc., Appellant, v Richard Picone et al., Respondents.
    Decided February 7, 1980
   Appeal, and cross appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no appeal pursuant to CPLR 5601 (subd [d]) lies (NY Const, art VI, § 3, subd b, par [7]).


text:
    Peter F. Pantlin et al., Plaintiffs, and Perinton Associates, Appellant, v Heicklen Farms, Inc., et al., Respondents.
    Submitted January 21, 1980;
    decided February 7, 1980
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the consolidated action within the meaning of the Constitution (see Lizza Inds. v Long Is. Light. Co., 36 NY2d 754).


text:
    The People of the State of New York, Respondent, v Gregory Diaz, Appellant.
    Submitted February 4, 1980;
    decided February 7, 1980
   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 of Appeals in the event of an affirmance (see People v Genet, 59 NY 80; People v Del Rio, 14 NY2d 165; People v Sullivan, 28 NY2d 900).


text:
    Jean Schiraldi et al., Appellants, v Brooklyn Cumberland Hospital et al., Respondents.
    Submitted January 14, 1980;
    decided February 7, 1980
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from involves a question of discretion of the type not reviewable by the Court of Appeals (Williams v Cunningham, 44 NY2d 731; Rabetoy v Atkinson, 37 NY2d 803; Cohen and Karger, Powers of the New York Court of Appeals, § 147, pp 584-587).


text:
    In the Matter of Timmy Dykes, Appellant, v Eugene Gold, as District Attorney of Kings County, et al., Respondents.
    Submitted January 28, 1980;
    decided February 7, 1980
   Motion for leave to appeal dismissed as moot.


text:
    Houlihan-Parnes, Realtors, et al., Appellants, v Citibank, N. A., et al., Respondents.
    Submitted January 2, 1980;
    decided February 12, 1980

      APPEARANCES OF COUNSEL

      Stanley Alter for appellants.

      Mark P. Zimmett for Citibank, N. A., respondent.

      Frank H. Connelly, Jr., for Joel Halpern and others, respondents.
   OPINION OF THE COURT

Memorandum.

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

It being undisputed that no agency or contractual relationship existed between the parties, a cause of action for conspiracy to interfere with that relationship does not lie (Brackett v Griswold, 112 NY 454, 466-467). Hence, defendants were properly granted summary judgment.

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

Order affirmed.