text:
    In the Matter of the Arbitration between PPX Enterprises, Inc., Appellant, and Ducale Edizione Musicali et al., Respondents.
    Argued June 6, 1977;
    decided June 16, 1977

      Joseph I. Kazarnovsky and Morton L. Ginsberg for appellant.

      James W. Mosher for respondents.
   Memorandum. Order of the Appellate Division affirmed, without costs.

The peculiar and inartful practices followed by the administrators of the American Arbitration Association and the parties are described in summary fashion in the memorandum at the Appellate Division. The rescheduling of the hearing date for March 18, 1974, insofar as the formal notice is concerned, reflects a substitution of the new date for a hearing and not an adjourned hearing set by the designated arbitrator. There was therefore a failure to give notice as required by CPLR 7506 (subd¡ [b]). Consequently, the award was properly vacated under CPLR 7511 (subd [b], par 1, cl [iv]). The affidavit by the American Arbitration Association administrator stating that the March 18 hearing was an adjourned hearing is, because it is conclusory, without acceptable legal effect. The court passes on no other issue raised. Costs are not awarded because of the inexcusable laxity of respondents in the handling of the demand for arbitration and the correspondence which ensued, a laxity which undoubtedly contributed to the confusion and failure to give proper notice.

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

Order affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Veronica P. (Anonymous), Appellant, v Larry L. (Anonymous), Respondent.
    Argued May 3, 1977;
    decided June 16, 1977

      Gerald Harris, County Attorney (Steven R. Kartagener of counsel), for appellant.

      Robert J. McGoey for respondent.
   Memorandum. The order appealed from should be modified, without costs, and the case remitted to Family Court, Westchester County, for further proceedings. Respondent perfected a timely appeal from the 1975 order modifying a previous filiation order entered in 1969. This order of modification created a new right to appeal, and brings before the court the entire order, including those issues that would have been raised on an appeal from the 1969 order alone. (See Cohen and Karger, Powers of the New York Court of Appeals, § 104, at pp 436-437.) We do not believe that the Family Court lost jurisdiction to enter the original order of filiation due to the lapse of two and one-half years between the rendering of a decision and the initial entry of an order. In our opinion the court retained continuing jurisdiction to make "an appropriate and suitable order or judgment which manifests the existence of a determination.” (See Merrick v Merrick, 266 NY 120, 122.) Of course, the appellant’s delay in submitting a proposed order may represent an abandonment of the action. The appellant’s over-all delay in seeking enforcement of the 1967 decision may also warrant application of the doctrine of laches. On remand, therefore, the Family Court should consider whether, on the present facts, recovery of prior support payments should have been barred under a theory of either abandonment or laches. The court may also reconsider whether a reasonable level for support payments was set and whether the amount of arrears was correctly determined.

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

Order modified, without costs, and the matter remitted to the Family Court, Westchester County, for further proceedings in accordance with the memorandum herein and, as so modified, affirmed.


text:
    Harold F. McDonald et al., Appellants, v State of New York, Respondent.
    (Claim No. 56971.)
    Argued May 6, 1977;
    decided June 16, 1977

      William L. Allen, Jr., for appellants.

      Louis J. Lefkowitz, Attorney-General (Vernon Stuart and Ruth Kessler Toch of counsel), for respondent.
   Memorandum. We would affirm the order of the Appellate Division, but find it necessary to clarify the proper basis for the result reached. The measure of damages for a partial taking of real property is the difference between the property’s value before the condemnation and the value afterward. To calculate the before-taking value, the Court of Claims upwardly adjusted the sales price of a comparable parcel by the depreciated cost of converting that parcel to use as a small animal hospital. Such an adjustment actually resulted in the finding of a replacement value, which value is only relevant in appraising a specialty. The subject property was not a specialty since it had a potential to be and was eventually used for purposes other than as a small animal hospital. Thus, the Appellate Division properly modified the condemnation award by deleting this adjustment for renovation costs. Nonetheless, the claimant was entitled to recover the value of fixtures whose utility was destroyed when the partial taking made it impossible to continue to use the premises as a small animal hospital.

Whenever such an increment is authorized, as it is here, the found increment value "must be based on sufficient evidence and be satisfactorily explained”. (Matter of County of Suffolk [Firester], 37 NY2d 649, 653.) The Appellate Division found this value to be $9,350. While it would appear that the Appellate Division arbitrarily adjusted the value of the fixtures to be equal to some unexplained 10% of the before-value of the subject property, we find sufficient evidence in the record to support the award. The concrete dog runways, the chain-link fencing and gates, a special incinerator, and structural glass cages, all of which are fixtures for which compensation is due, had a value of between $9,224 and $9,619. Hence, the Appellate Division’s actual adjustment of valuation at $9,350 was "conformable with the weight of evidence”. (Matter of City of New York [Coogan], 20 NY2d 618, 623.)

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Vernell Hagood, Appellant, v Stephen Berger, as Commissioner of the New York State Department of Social Services, et al., Respondents.
    Argued April 26, 1977;
    decided June 16, 1977

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

      Louis J. Lefkowitz, Attorney-General (Maryellen Weinberg and Samuel A. Hirshowitz of counsel), for Stephen Berger, respondent.
   Memorandum. The order of the Appellate Division should be reversed and the determination of the State Commissioner of Social Services annulled.

The courts below have sustained a determination, made after a fair hearing, which discontinued assistance to appellant and her four children under the aid to families with dependent children program, on the ground that her husband was residing in the household and was fully employed and that appellant had concealed this fact from the local Department of Social Services. We conclude that there is insufficient evidence in the record to sustain the commissioner’s determination.

We start with a realistic recognition that in cases like this the local department necessarily confronts practical obstacles in gathering direct proof of the presence of a man in the household. In the first place proof of the presence of the man is not readily available to the department. In the second, in some instances this difficulty is aggravated by a calculated determination on the part of the recipient to conceal his presence. From the opposite perspective, proof that there is no man in the house—essentially a negative proposition—can present very real difficulties to a conscientious recipient.

In this instance the concern of the local department was triggered by an anonymous telephone call from an unknown, unidentified informer. The proof adduced at the fair hearing on behalf of the agency was entirely documentary, introduced by an agency representative who had no personal knowledge of the case. The agency history sheet disclosed that appellant had informed the department on August 1, 1974 that her husband was no longer in the household. On February 5, 1975 the department received the tip from the informer that the husband was employed and resided with his wife and children, and an investigation was promptly launched. The lease of the apartment in which appellant lived had been prepared in the names of both husband and wife, but the tenant’s copy of the lease and of the tenant’s rules and regulations was signed only by appellant. (Neither party produced the landlord’s copy of the lease.) The so-called "move and collect notice” of the Public Housing Authority bore only appellant’s name and reflected only her income from welfare. There had been an erasure change of the number of persons in the household from 6 to 5 which appellant testifed had been made by the assistant in the housing manager’s office. In response to a question-form from the department the husband’s employer reported that the husband claimed six exemptions for tax purposes and gave his address as the home in which husband and wife and children had concededly lived together before appellant moved into public housing. A form request to the postal authorities brought the information, without identification of source, that mail for the husband was being delivered to appellant’s apartment. The local welfare investigator was not present at the hearing, and no proof was offered of any on-site investigation by the local department. Nor was there any proof of refusal or hesitancy on the part of appellant to respond to or to co-operate with the welfare agency.

Appellant testified that her husband had accompanied her to the management offices of the housing authority when she sought public housing, but that he had never lived with her in the public housing, that she had so informed the authority when she moved in, and that the only mail she had received addressed to her husband contained insurance premium notices, presumably with respect to policies which named her and their children as beneficiaries.

The local department will be free, of course, on the basis of a further, current and more thorough investigation to make a new determination, if warranted, to discontinue appellant’s assistance on the ground that she is concealing her husband’s presence in the household. In the very sparse state of the present fair hearing record, however, even making allowance for the practical difficulties of proving the presence of the husband in the household, we conclude that the commissioner’s present determination is not supported by substantial evidence. Accordingly, it should be annulled.

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

Order reversed, with costs, and determination of the State Commissioner of Social Services annulled in a memorandum.


text:
    In the Matter of the Board of Education of the Levittown Union Free School District, Appellant, v Levittown United Teachers, Respondent.
    Argued May 6, 1977;
    decided June 16, 1977

      William H. Englander and Robert E. Sapir for appellant.

      David N. Stein and James R. Sandner for respondent.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    East New York Savings Bank, Respondent, v Carlinde Realty Corp. et al., Defendants, and Robert S. Dillworth et al., Appellants.
    Argued June 6, 1977;
    decided June 16, 1977

      John M. Armentano for appellants.

      Henry J. Clay and Michael L. Martell for respondent.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


author: Cooke, J. (dissenting).

text:
    The People of the State of New York, Respondent, v Larry Lawrence McGowen, Appellant.
    Submitted February 18, 1977;
    decided June 16, 1977

      Milton M. Levin for appellant.

      Eugene Gold, District Attorney (Steven T. Wax of counsel), for respondent.
   Memorandum. The defendant, with the aid of counsel, negotiated a plea and knowingly and intelligently pleaded guilty to assault in the first degree in full satisfaction of an indictment charging him with attempted murder, assault in the first degree and assault in the second degree. He was sentenced to five years’ imprisonment.

The defendant claims that the plea should be vacated because the elements of the crime were "not clearly spelled out” in the statements he made to the court at the time he pleaded guilty. The record shows that he admitted committing the acts alleged and his intent is "readily inferrable” from his statements regarding the circumstances of the crime. Thus the court was not required to make further inquiry before accepting the plea (see People v Serrano, 15 NY2d 304, 307).

The defendant also claims that the sentence is defective because the court did not expressly make a determination on the record, regarding his eligibility for youthful offender treatment, before imposing sentence (CPL 720.20). However, in view of the fact that the defendant made no assertion at the time of sentence that he was entitled to an adjudication of his youthful offender status, his right thereto was waived. The statute requiring the court to make the determination is not like those which by their terms, indicate it is the court’s responsibility to alert the defendant or his lawyer to his rights or the detriment he may suffer (see, e.g., People v McClain, 35 NY2d 483; People ex rel. Gallagher v Follette, 22 NY2d 239; Vehicle and Traffic Law, § 1807). Under the circumstances of this case we find no basis for concluding that the sentence should be set aside.

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

Cooke, J. (dissenting).

I dissent. My view is in accord with the position taken by the prosecution in its brief that the "deficiencies in the plea proceeding require vacation of the judgment and remand to the Supreme Court for further proceedings”.

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

Order affirmed.


text:
    In the Matter of Max Grenader et al., Appellants-Respondents, v Louis J. Lefkowitz, as Attorney-General of the State of New York, Respondent-Appellant, et al., Respondents.
    Argued April 25, 1977;
    decided June 16, 1977

      Charles Marks for appellants-respondents.

      Louis J. Lefkowitz, Attorney-General (Shirley Adelson Siegel and Samuel A. Hirshowitz of counsel), for respondentappellant.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    Patricia M. Batton, Appellant, v Agadgan Elghanayan et al., Doing Business as Bailey Gardens Co., Respondents.
    Submitted March 21, 1977;
    decided June 16, 1977
   Motion to dismiss so much of the appeal herein as is taken from that portion of the Appellate Division order affirming an order denying a motion for disclosure of nonparty witnesses granted and that portion of the appeal dismissed, without costs, upon the ground that the order in that respect does not finally determine the action within the meaning of the Constitution.


text:
    Elma Penato, Individually and as Administratrix of the Estate of Robert Penato, Deceased, Respondent, v Stephen George et al., Appellants.
    Argued May 3, 1977;
    decided June 16, 1977
   Appeals dismissed, with costs, upon the ground that on the record and submissions on full argument it appears that the issues as to the instant complaint have been mooted (see, e.g., Langer v Garay, 30 AD2d 942; Miglietta v Kennecott Copper Corp., 22 AD2d 874; 3 Weinstein-Korn-Miller, NY Civ Prac, par 3025.07; 6 Carmody-Wait 2d, NY Prac, § 34:7).


text:
    The People of the State of New York ex rel. John Bridges, Also Known as John Reynolds, Also Known as William Scott, Appellant, v Benjamin Malcolm, as Commissioner of the New York City Department of Corrections, et al., Respondents.
    Submitted May 2, 1977;
    decided June 16, 1977
   On the court’s own motion, cross appeal taken as of right by relator dismissed, without costs, upon the ground that relator is not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [hi]).


text:
    Andrew Buoninfante, Respondent, v Sidney Hoffman et al., Appellants.
    Argued June 1, 1977;
    decided June 30, 1977

      Sidney Hoffman, appellant pro se.

      Leon A. Lauterbach and Jay Bloomfield for respondent.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    In the Matter of Gail Mitchell, Appellant, v Harry I. Bronstein, as Personnel Director of the City of New York, et al., Respondents.
    Argued June 7, 1977;
    decided June 30, 1977

      Martin B. Adelman for appellant.

      W. Bernard Richland', Corporation Counsel (Irving Cohen, L. Kevin Sheridan and Leonard Koerner of counsel), for respondents.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    The People of the State of New York, Respondent, v Lord Salladeen, Appellant.
    Argued June 8, 1977;
    decided June 30, 1977

      Richard T. Farrell for appellant.

      Robert M. Morgenthau, District Attorney (Harriett Galvin and Peter L. Zimroth of counsel), for respondent.
   Memorandum. Order of the Appellate Division affirmed.

With respect to the issues meriting discussion the order is affirmed for the reasons stated at the Appellate Division. It is good, however, to add or repeat the following: Defendant’s fourth lawyer, assigned by the patient Trial Justice after defendant had discharged his third assigned lawyer, was, as noted by the Appellate Division, well known, experienced, and skilled in the trial of criminal cases. The nature of the all but conclusive case against defendant was assessable and preparable in short order by a lawyer of such experience and skill. Insofar as the comment by the dissenting Justice at the Appellate Division that he had not been able to review the Correction Department records detailing defendant’s behavior, a kind of abusive behavior which in recent days has been widely publicized and become the fashion for some defendants seeking to assume alternately the role of a demented person or of a political militant, the correction records had been viewed by the Trial Justice, and with the consent of counsel have been received and made available to this court. It is the fact, however, that the record made before the nisi prius court, without more, amply justified the conduct and rulings by the Trial Justice whose temperance and patience in this case have been characteristic of his conduct as a Judge for many years.

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

Order affirmed in a memorandum.


text:
    In the Matter of the City of New York, Respondent, and Robert M. Morgenthau, as District Attorney of New York County, et al., Intervenors-Respondents, v Public Service Commission of the State of New York, Appellant, and Louis J. Lefkowitz, as Attorney-General of the State of New York, Intervenor-Appellant.
    Argued May 31, 1977;
    decided June 30, 1977

      Peter H. Schiff and Howard J. Read for appelllant.

      W. Bernard Richland, Corporation Counsel (John C. Brennan, L. Kevin Sheridan and Alexander Gigante, Jr., of counsel), for respondent.

      Robert M. Morgenthau, New York County District Attorney (Ann Elizabeth Lewis, Peter L. Zimroth and Robert M. Pitler of counsel), for intervenor-respondent.

      Sol Greenberg, Albany County District Attorney (George H. Barber of counsel), for intervenor-respondent.

      Michael R. Wolford for Rochester Telephone Corporation and another, amici curiae.

      George A. Ashley, Raymond F. Burke and Robert E. Scannell for New York Telephone Company, amicus curiae.

      Edward F. Skoda for General Telephone Company of Upstate New York, Inc., amicus curiae.

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


text:
    Ralph Roberts et al., Appellants, v Food Fair Stores, Inc., Respondent.
    Argued June 2, 1977;
    decided June 30, 1977

      Saul I. Weinstein and L. Sterling Aid for appellants.

      Richard M. Zaroff and Burton I. Manis for respondent.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    Maria Serravillo, Respondent, v New York City Transit Authority, Appellant.
    Argued June 3, 1977;
    decided June 30, 1977

      David Henry Sculnick, Alphonse E. D’Ambrose and John A. Murray for appellant.

      Beatrice Maviglia for respondent.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    In the Matter of Kinderhill Farm Breeding Associates, Respondent, v Edward A. Walker, as Building Inspector of the Town of Chatham, et al., Appellants.
    Argued June 6, 1977;
    decided June 30, 1977

      Keith G. Flint for appellants.

      Robert S. Carlson and William J. McSherry, Jr., for respondent.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    In the Matter of Willis Beneky, Appellant, v Waterfront Commission of New York Harbor, Respondent.
    Argued June 7, 1977;
    decided June 30, 1977

      Reynold A. Mauro for appellant.

      Irving Malchman and Richard Paul Cohen for respondent.
   Memorandum. The order of the Appellate Division should be affirmed, with costs. Petitioner, an investigator for the Waterfront Commission, concedes that he met with a reputed organized crime figure, who had been a target of numerous investigations by the commission, and that this meeting did not occur in the regular course of his employer’s business. As a nontenured employee, petitioner was not entitled to a full adversary hearing concerning the reasons for the termination of his employment unless there was proof that the discharge was for an improper reason or in bad faith. (See, e.g., Matter, of Anonymous v Codd, 40 NY2d 860; Matter of Bergstein v Board of Educ., 34 NY2d 318, 322; Board of Regents v Roth, 408 US 564.) But, here, the proof failed to show improper motivation or bad faith and, thus, no hearing was required. In fact, the commission did more than it was required to do, under the Constitution and its own rules, by granting petitioner an opportunity to examine the reports which charged him with improper conduct and by permitting him to explain his actions. As to the claim that a hearing was necessary in view of the stigma attaching to the termination of his employment, it is sufficient to note that no hearing is necessary where the employee fails to "affirmatively” challenge "the substantial truth of the material in question”. (Codd v Velger, 429 US 624, 627-628.)

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

Order affirmed.


text:
    Irving Tashlick, Respondent, v Wharton Industries, Inc., et al., Defendants, and Saul Warshaw, Appellant.
    Submitted June 8, 1977;
    decided June 30, 1977

      Bernard Ouziel and Howard Veisz for appellant.

      Leonard N. Shapiro for respondent.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    Towers Hotel Investors Corp., Appellant, v Miriam D. Davis et al., Respondents.
    Argued June 10, 1977;
    decided June 30, 1977

      Abraham L. Watarz and Edward H. Freiberger for appellant.

      Kent Karlsson for respondents.

      Irving S. Freedman and Joel H. Weinstein for Metropolitan Hotel Industry Stabilization Association, Inc., amicus curiae.

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


text:
    Fresh Meadows Associates, Appellant, v New York City Conciliation and Appeals Board, Respondent.
    Argued June 1, 1977;
    decided June 30, 1977

      A. David Benjamin, Eugene J. Morris and Hilton M. Wiener for appellant.

      William E. Rosen and Ellis S. Franke for respondent.

      Gary M. Rosenberg for Schwab-Adams Co., amicus curiae.

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


text:
    The People of the State of New York, Respondent, v Joseph A. Keitt, Appellant.
    Argued June 3, 1977;
    decided June 30, 1977

      Milton E. Jacobowitz for appellant.

      John J. Santucci, District Attorney (George Freed of counsel), for respondent.
   Memorandum. The order of the Appellate Division should be affirmed.

We conclude that the evidence was sufficient to sustain defendant’s convictions. There is no dispute that an ice cream truck vendor was robbed by two men, one of whom used a .22 caliber revolver. Defendant was not one of these two men. The question, however, is whether the evidence sustains the jury’s conclusion that defendant was guilty of aiding in the robbery in consequence of his participation as driver of the getaway automobile (Penal Law, § 20.00). The two robbers were seen to flee in the Buick Century which had been rented by defendant; 10 or 15 minutes later the Buick was spotted and stopped; defendant was driving and the robber who had used the revolver was a passenger; another passenger escaped; and finally the loot of the robbery was found in defendant’s car and on the person of the one robber. In our view there was ample evidence to sustain the jury’s conclusion that defendant was a knowing wheelman in a plain robbery in which a gun had been used.

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

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

Order affirmed in a memorandum.


text:
    Elizabeth A. Weng et al., Respondents, v Lucille Gill et al., Appellants.
    Argued June 2, 1977;
    decided June 30, 1977

      E. Richard Rimmels, Jr., for appellants.

      Edgar G. Guidone for respondents.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    Process Plants Corp., Appellant, v Beneficial National Life Insurance Company, Respondent.
    Argued June 7, 1977;
    decided June 30, 1977

      John J. Bower and Thomas R. Newman for appellant.

      William E. Kelly and Charles M. Pratt for respondent.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    Antonio Vicente et al., Appellants, v State of Trinidad and Tobago, Respondent, et al., Defendants.
    Argued June 1, 1977;
    decided June 30, 1977

      Jerold W. Dorfman and David A. Beale for appellants.

      Howard F. Cerny for respondent.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    In the Matter of Faculty-Student Association of State University College at Oneonta, Inc., Respondent, v Michael Roth et al., Constituting the New York State Liquor Authority, Appellants.
    Argued June 7, 1977;
    decided June 30, 1977

      John T. Feck, Warren B. Pesetsky and Joseph S. Ryan for appellants.

      Richard J. Bookhout for respondent.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    Leonard J. Beck, Respondent, v Jay Motler et al., Appellants.
    Argued May 31, 1977;
    decided June 30, 1977

      Norman H. Dachs and Beth J. Goldmacher for appellants.

      Francis Bergan for respondent.
   Memorandum. The order of the Appellate Division should be affirmed.

At issue in this case is whether the organizers of the corporation intended that the stock be evenly divided between the two stockholders or whether it was their intent that the ownership be held in a 51-49% ratio. The trial court, relying solely on the documentary evidence, found that the intent of the parties was that the appellant hold a 51% interest. The Appellate Division properly reviewed this factual determination and, weighing certain oral testimony proffered at trial as well as the documentary evidence, reversed the lower court’s determination, finding that the evidence as a whole manifested an intention that the stock of the corporation be equally divided. Upon our review of the record before us we find that the evidence persuades us to adopt the findings of the Appellate Division (see Cohen and Karger, Powers of the New York Court of Appeals, § 112, pp 485-486).

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

Order affirmed, with costs, in a memorandum.


text:
    Kenneth P. Satterly, Respondent, v Ruth Plaisted, Individually and as Executrix of Dora Plaisted, Deceased, Appellant.
    Argued June 1, 1977;
    decided June 30, 1977

      Paul R. Taylor for appellant,

      Weston H. Palmer for respondent.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    Diane C. Walczyk, Appellant, v Donnell Chresfield, Respondent.
    Argued June 3, 1977;
    decided June 30, 1977

      S. Mac Gutman for appellant.

      Philip Hoffer, Raymond J. Mac Donnell, Rose L. Hoffer and Peter T. Affatato for respondent.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    In the Matter of 54/55 Sixth Realty Corp., Respondent, v Nathan Leventhal, as Commissioner of the Office of Rent Control, Department of Rent and Housing Maintenance, Housing and Development Administration, Appellant, and Maurice Silverstein, Intervenor-Appellant.
    Argued June 6, 1977;
    decided June 30, 1977

      Arthur Kass, Harry Michelson and Zebbia Friedman for appellant.

      Jonathan Kratter and Thomas F. Ryan for intervenor-appellant.

      Bernard Rothman and Stuart Abrams for respondent.
   Memorandum. The order of the Appellate Division should be affirmed.

Although the certificate of occupancy did not authorize the owner to divide the penthouse into two apartments, the respondent’s records show that this condition had existed, had been reported, and had been a matter of record ever since 1944. The New York City Rent and Eviction Regulations (§ 88, subd a) permits the respondent to revoke his order upon a showing of "illegality, irregularity in vital matters, or fraud.” However we agree with the Appellate Division that respondent’s failure to discover facts within its own files after so extraordinary a length of time is not the type of irregularity contemplated by section 88 of the regulations.

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

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


text:
    The People of the State of New York, Respondent, v Carol Miner, Appellant.
    Argued June 6, 1977;
    decided June 30, 1977

      Matthew Muraskin and James J. McDonough for appellant.

      Denis Dillon, District Attorney (Steven R. Bernhard, William C. Donnino and Philip L. Tomich of counsel), for respondent.
   Memorandum. The evidence needed to establish probable cause to justify an arrest does not have to be such as to warrant a conviction (Adams v Williams, 407 US 143, 149). In our view there was sufficient evidence for the trial court to find that the officer had probable cause to believe that the defendant committed a crime (see, e.g., People v Oden, 36 NY2d 382) and therefore the arrest was a proper one. The search incident to that arrest was authorized (People v Perel, 34 NY2d 462).

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

Order affirmed in a memorandum.


text:
    In the Matter of Judith Ebner, Respondent, v Board of Education of East Williston Union Free School District No. 2, North Hempstead, Appellant.
    Argued June 2, 1977;
    decided June 30, 1977

      Gary Weintraub and Frank J. Faroulo, Jr., for appellant.

      James J. Brady and Eugene M. Kaufman for respondent.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    In the Matter of Steven R. Balmer, Respondent, v New York State Board of Parole, Appellant.
    Argued June 3, 1977;
    decided June 30, 1977

      Louis J. Lefkowitz, Attorney-General (Carl Saks and Samuel A. Hirshowitz of counsel), for appellant.

      Martha S. Henley, James J. McDonough and Matthew Murskin for respondent.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg. Judge Cooke dissents and votes to reverse for reasons stated in the dissenting memorandum by Mr. Justice Vito J. Titone at the Appellate Division (54 AD2d 979, 980-981).


author: Per Curiam.

text:
    In the Matter of Amsterdam-Manhattan Associates, Appellant, v Daniel W. Joy, as Commissioner of the Office of Rent Control, Department of Rent and Housing Maintenance of the City of New York, Respondent. In the Matter of Taleff Realty Corp., Appellant, v Daniel W. Joy, as Commissioner of the Office of Rent Control, Department of Rent and Housing Maintenance of the City of New York, Respondent.
    Argued June 6, 1977;
    decided June 30, 1977

      Robert S. Fougner for Amsterdam Manhattan-Associates, appellant.

      Irving Weissman for Taleff Realty Corp., appellant.

      Florence R. Zimmerman and Harry Michelson for respondent.
   Per Curiam.

We find that there was unreasonable delay as a matter of law in the Office of Rent Control’s refusal, for a period of over 15 months, to process the landlords’ applications for electrical exclusion decrease orders. It is offensive to one’s sense of fairness for these landlords, having timely filed the necessary applications and engaged in a completely proper course of conduct under the pre-existing regulation, to be denied the benefit of the regulation then extant. Under the facts of these cases, the petitioners were entitled to reasonably prompt processing of their applications. The agency’s arbitrary decision to impose a moratorium on applications of this nature until it had prepared and promulgated a new regulation should not work to the detriment of these petitioners (see Matter of Pokoik v Silsdorf, 40 NY2d 769, 773; Matter of Parkchester Apts. Co. v Lefkowitz, 51 AD2d 277, 281, affd 41 NY2d 987). Even in the absence of bad faith, administrative procrastination of this magnitude, be it negligent or willful, without excuse or justification, affords a basis for applying the pre-existing regulation to the applications (see Matter of Our Lady of Good Counsel R. C. Church & School v Ball, 45 AD2d 66, affd 38 NY2d 780; cf. 1 Anderson, NY Zoning Law and Practice, § 6.17, p 196).

Accordingly, in each of these cases the order of the Appellate Division should be reversed.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones and Wachtler concur in Per Curiam opinion; Judges Fuchs-berg and Cooke dissent and vote to affirm for reasons stated in the opinion by Mr. Justice Vincent A. Lupiano at the Appellate Division (54 AD2d 423).

In each case: Order reversed, with costs, and the judgment of Supreme Court, New York County, reinstated.


text:
    Joseph Gallen, Appellant, v Beseler Photo Marketing Company, Inc., Respondent.
    Argued June 2, 1977;
    decided June 30, 1977

      Neil R. Cahn and Edward Newman for appellant.

      Benjamin Lewis and Noel H. Kaplan for respondent.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    The People of the State of New York, Respondent, v Carl Macedonio, Appellant.
    Argued June 3, 1977;
    decided June 30, 1977

      Gerald J. Callahan, John F. Middlemiss, Jr., and Leon J. Kesner for appellant.

      Henry F. O’Brien, District Attorney (Kevin J. Crowley of counsel), for respondent.
   Memorandum. The order of the Appellate Division should be reversed and a new trial ordered.

Once the lawyer entered the criminal proceeding representing the defendant in connection with criminal charges under investigation, it was impermissible to question defendant in custody and in the absence of his attorney (People v Ramos, 40 NY2d 610, 614; People v Hobson, 39 NY2d 479, 481). Proof that defendant had type "A” blood and that the semen found within the victim was emitted from a male with blood of that type should not have been admitted, in view of the large proportion of the general population having blood of said type (People v Robinson, 27 NY2d 864).

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


text:
    The People of the State of New York, Respondent, v Robert Dawson, Appellant.
    Argued June 8, 1977;
    decided June 30, 1977

      Henry Winestine and William E. Hellerstein for appellant.

      Robert M. Morgenthau, District Attorney (Brian Rosner, Peter L. Zimroth and Robert M. Pitler of counsel), for respondent.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    The People of the State of New York, Respondent, v James Miller, Appellant.
    Submitted June 3, 1977;
    decided July 5, 1977

      Barry H. Friedman for appellant.

      John R. King, District Attorney (Bridget R. Rahilly of counsel), for respondent.
   Memorandum. The order of the Appellate Division is affirmed. Defendant, charged in an indictment with three counts of assault committed upon two corrections officers, was convicted upon his plea of guilty of two counts, in full satisfaction of the indictment. Before accepting the bargained for plea, the court was careful to elicit the details of the crime from the defendant himself. The defendant told the court that, when incarcerated at Green Haven Correctional Facility, he was approached by a guard who explained that he was sent to inspect the prisoner’s cell for contraband and also to search the prisoner personally. The defendant balked at the personal search and when the guard persisted, defendant, stating he "thought” he might be assaulted, struck the guard with a stool. After learning of the purported assault by the guard, which in fact never occurred, the court admonished the defendant, "if you’re using just the amount of force that you can lawfully use to repel an attack, I don’t want you to plead guilty to an assault crime”; to which defendant responded that "if I don’t plead guilty and I go to trial I will be convicted anyway”. After being satisfied that the plea was voluntary the court, nonetheless, again inquired of the defendant if he still desired to enter a plea of guilty, and defendant stated he did, whereupon the court accepted the plea in full satisfaction of the indictment.

Among the several significant factors which warrant an affirmance in this case are these: (1) the requisite elements of the assault crime appeared from the defendant’s own recital of the facts (People v Serrano, 15 NY2d 304, 308); (2) the record demonstrates that his lawyer was knowledgeable about the incident and that defendant had received adequate representation (People v Francis, 38 NY2d 150, 154; People v Nixon, 21 NY2d 338, 354); (3) as a recidivist, the defendant was experienced in the ways of criminal proceedings and not unaware of the possible consequences of trial (People v Nixon, supra, p 350), and (4) the defendant was fully conscious of the possible sentence he might receive and the over-all consequences of entering the plea. In accepting a plea, the court must exercise discretion based on the facts of each individual case (People v Nixon, supra, p 355). Where the court which accepts a plea has no reason to believe it is unfair or inappropriate, it should become final (People v Francis, supra, p 156). We conclude that under the circumstances the court properly accepted the plea.

At sentencing, the defendant moved to withdraw the plea on the ground that in the interim following his plea, a homicide had occurred at the prison and that this incident might add credence to his self-defense claim. Upon such a motion the court may, in the exercise of sound discretion, determine to hold an evidentiary hearing (People v Tinsley, 35 NY2d 926; People v McClain, 32 NY2d 697). Given the status of the defendant as a prisoner, the allegations of assaults by the guards and the actual homicide, the Judge might well have exercised his discretion to have investigated the matter further through the vehicle of an evidentiary hearing. However, on the facts in this case we cannot say that there was an abuse of discretion as a matter of law in failing to hold such a hearing.

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

Order affirmed in a memorandum.


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    In the Matter of the City of New York, Appellant, Relative to Acquiring Title to Real Property for Arverne II, Stage II, Urban Renewal Project, in the Borough of Queens. Oceanview Terrace, Respondent.
    Argued June 8, 1977;
    decided July 5, 1977

      W. Bernard Richland, Corporation Counsel (Morris Einhorn and L. Kevin Sheridan of counsel), for appellant.

      Saul Weprin and Jerome M. Herskovits for respondent.
   Memorandum. The order of the Appellate Division is affirmed, with costs.

This condemnation proceeding commenced by the City of New York involves Damage Parcels 928-938 and 940-948 consisting of approximately 72,800 square feet of land in the Arverne Section of the Rockaway peninsula in Queens. At the time of title vesting the property was improved with 18 bungalow cottages in excellent condition. Special Term found that the highest and best use of the subject parcels was a bungalow colony, the actual use to which the property was put and, further, that as an income-producing property, the surest index of value was the capitalization of net income based upon the property’s actual experience. In calculating value, Special Term applied an over-all capitalization rate of 11% and arrived at a fair market value of $287,500 of which $205,500 was allocated to land and $82,000 to the buidlings. The Appellate Division modified by increasing the award from $287,500 to $351,700. In so modifying the court affirmed the finding that the highest and best use was a bungalow colony and also affirmed the use of the capitalization of income method of valuation. Thus we have affirmed findings as to the highest and best use, and the valuation method. However, the Appellate Division held that use of an over-all rate of capitalization may be vulnerable unless it is based upon separate capitalization rates computed by one or another residual method on land and buildings, citing Matter of City of New York (First Elephant Estates-La Hermosa Church) (17 AD2d 317, 321); and the court utilized a split capitalization method, finding support in the record for a factor of 6.5% for income attributable to land and 11% for the capitalization of income attributable to the buildings. By adopting the city’s value of $156,900 for the land and using the actual net income of $31,625, the Appellate Division arrived at a total valuation of $351,700.

Since the trial court’s findings of value were modified and new findings were made, this court must review the evidence and choose between the discrepant findings (Matter of City of New York [A. & W. Realty Corp.], 1 NY2d 428). Although it is axiomatic that findings in a condemnation case may not be predicated solely and simply on the subjective judgment of Judge or court, an award may still be higher than an expert’s estimate of value provided there is evidence in the record to support the underlying, calculations (Matter of City of New York [A. & W. Realty Corp.], supra, p 433). In this case the city’s expert used the capitalization of income method of valuation, adopting an 11% rate. The Appellate Division accepted the city’s basic methodology but found support in the record for adjusting the calculations in order to arrive at a more just award. Where capitalization of income is the proper valuation procedure and one expert utilizes that method, a court is not required to adopt that testimony per se but may use all the evidence in the record in order to establish fair market value. We believe the Appellate Division properly adapted the capitalization of income method of valuation to the facts in this case.

When the highest and best use is the one the property presently serves and that use is income-producing, then the capitalization of income is a proper method of valuation (Matter of City of New York [First Elephant Estates-La Hermosa Church], supra, p 320; People ex rel. Gale v Tax Comm., 17 AD2d 225; 4 Nichols, Eminent Domain [2d ed], § 185). In using capitalization of income it is important to ensure that an improper distortion is not introduced because of disproportionate values assignable to land and buildings (Matter of City of New York [First Elephant Estates-La Hermosa Church], supra, p 321, n). The use of split capitalization or the "residual method” provides a check on the market value which is somewhat more reliable than over-all capitalization. The use of an over-all capitalization rate implies that income is derived in equal shares from the land and the buildings but in this case both the city’s expert and Special Term found a wide discrepancy between the value of the land and the value of the buildings. This discrepancy renders uncertain the assumption that income is derived in equal shares from the land and the buildings since the land, being used for summer cottages, is situated in close proximity to the beach and the buildings are simple stucco bungalows. Also, the 11% rate employed by the city’s expert included a depreciation factor applicable only to the buildings. Under these circumstances the Appellate Division was justified in using split capitalization rates.

Relying on the record testimony of the city’s expert, the Appellate Division adopted the city’s value of $156,900 for the land and the 11% rate for the buildings. As to the land, however, the court applied a 6.5% rate. This rate was supported by the testimony of the claimant’s expert, who, in explaining the building "residual method” of split valuation, stated that a prudent investor would expect to receive a 6.5% return for the use of land at this location. The expert testified that he arrived at this rate by utilizing general real estate investment factors which were applicable to an adjoining parcel and to the damage parcels subject to this suit as well. This testimony provides adequate basis for the application of the 6.5% rate to the subject parcels when using the split capitalization method of valuation. Therefore, we find that the evidence in this record, unlike the record before the court in Matter of City of New York (A.& W. Realty Corp.) (supra), supports the fair market value found by the Appellate Division.

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

Order affirmed.


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    In the Matter of Ethel Hilf, Appellant, v James D. Evergetis, as Superintendent of Ellenville Central School, et al., Respondents.
    Argued June 9, 1977;
    decided July 5, 1977

      James J. Murray for appellant.

      Benjamin Lonstein for respondent.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    Lester J. Milich, Appellant, v Schenley Industries, Inc., Respondent.
    Argued June 8, 1977;
    decided July 5, 1977

      Joseph J. Einhorn for appellant.

      Patricia D’Alvia for respondent.
   Memorandum. The order is affirmed on the memorandum at the Appellate Division. In addition, we note that the issue of bad faith on the part of the defendant, whatever its merits might have been in the abstract, was neither pleaded nor proved (cf. Gillmore v Procter & Gamble Co., 417 F2d 615; Endres v Buffalo Auto. Assn., 25 Misc 2d 756; Ritz v News Syndicate Co., 16 Misc 2d 1013; Prize Contests—Rights and Remedies, Ann., 87 ALR2d 649, 673).

Chief Judge Breitel and Cooke, J. (dissenting). We dissent and vote to reverse and order a new trial on the dissenting opinion of Mr. Justice Theodore R. Kupferman at the Appellate Division. We add only that there is no warrant for requiring bad faith to be pleaded, and the authorities cited in the memorandum do not so require. Nor did counsel suggest that pleading bad faith was required, and both counsel agree that, if there were bad faith, a breach of contract would be made out, good faith being implied in all agreements (e.g., Kirke La Shelle Co. v Armstrong Co., 263 NY 79, 87). It should be enough to create a jury question that plaintiff alleged a breach of contract and gave testimony from which an inference of bad faith could be drawn.

Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur; Chief Judge Breitel and Judge Cooke dissent and vote to reverse in a separate memorandum.

Order affirmed, with costs, in a memorandum.


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    In the Matter of Charles E. Sigety et al., Appellants, v Nathan Leventhal, as Deputy Administrator/Commissioner of the Department of Rent and Housing Maintenance of the City of New York, et al., Respondents. Investors Funding Corporation of New York et al., Respondents, v Daniel W. Joy, as Commissioner of the Department of Rent and Housing Maintenance, Appellant.
    Argued May 31, 1977;
    decided July 5, 1977

      Michael A. Schwartz and Stuart Abrams for appellants in the first above-entitled proceeding and for respondents in the second above-entitled proceeding.

      Arthur Kass and Harry Michelson for respondents in the first above-entitled proceeding and for appellant in the second above-entitled proceeding.
   Memorandum. In the proceeding instituted by Sigety and Cohen, the order of the Appelate Division should be affirmed, with costs. Respondents’ determination was supported by substantial evidence (see Matter of Pell v Board of Educ., 34 NY2d 222, 230, 233). Since this proceeding involves the imposition of civil penalties and there is a rational connection between the respective facts proved and the facts presumed, the application of the presumptive evidence rule provided for in subdivision b of section 74 of the Rent, Eviction and Rehabilitation Regulations was not unconstitutional (see McCormick, Evidence [2d ed], pp 817-819; cf. People v Kirkpatrick, 32 NY2d 17, 24-25; People v McCaleb, 25 NY2d 394, 400-401).

In the proceeding commenced by Investors Funding Corporation of New York and Relocation & Management Associates, Inc., the determination of the Commissioner of the Department of Rent and Housing Maintenance was supported by substantial evidence except as to the violations of subdivision a of section Y51-10.0 of the Administrative Code of the City of New York in respect to deprivation of heat, hot water or both for the date of March 3, 1972, which date was prior to the acquisition of title by Investors Funding, and for the date of September 24, 1972. The commissioner, inter alia, imposed civil penalties of $50 for each of 188 specified days for which he found such deprivations. Accordingly, the order of the Appellate Division should be modified, with costs to said commissioner, by reinstating the determination of the commissioner in all respects except as to the violations of subdivision a of section Y51-10.0 of the Administrative Code of the City of New York in respect to deprivation of heat, hot water or both for March 3, 1972 and September 24, 1972, so as to reduce the total civil penalties imposed by $100, and, except as so modified, the said order of the Appellate Division should be affirmed.

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

In Matter of Sigety v Leventhal: Order affirmed, with costs, in a memorandum.

In Investors Funding Corp. of N. Y. v Joy: Order modified, with costs to the commissioner, in accordance with the memorandum herein and, as so modified, affirmed.


text:
    The People of the State of New York, Respondent, v Charles Nogueros, Appellant.
    Argued June 6, 1977;
    decided July 5, 1977

      Howard B. Comet, Matthew Muraskin and James J. Mc-Donough for appellant.

      Louis J. Lefkowitz, Attorney-General (Herman C. Emer, Daniel Polansky and Samuel A. Hirshowitz of counsel), for respondent.
   Memorandum. The order of the Appellate Term should be affirmed.

Subdivision 1 of section 52 of the Workmen’s Compensation Law provides: "Failure to secure the payment of compensation shall constitute a misdemeanor, punishable by a fine of not more than five hundred dollars or imprisonment for not more than one year, or both. Where the employer is a corporation, the president, secretary and treasurer thereof shall be liable for failure to secure the payment of compensation under this section.” This statute penalizes for "failure to secure the payment of compensation” and a clear legislative intent to impose strict liability is indicated (see Penal Law, § 15.15, subd 2; People v Ball, NYLJ, Jan. 26, 1973, p 2, col 4). This indication is buttressed by one of the purposes of the law, to assist in assuring payment of any and every award to an injured employee (cf. Matter of Aioss v Sardo, 223 App Div 201, 203, affd 249 NY 270), as well as by the legislative history of the 1926 amendment to section 52 of the Workmen’s Compensation Law, which added the second sentence of subdivision 1 imposing liability upon the president, secretary and treasurer of an employer corporation for failure to secure payment of compensation under the section. An original draft proposed liability upon the "executive officers and directors” of a corporation but a memorandum of the Commmittee on Criminal Courts Law and Procedure of the Association of the Bar of the City of New York entered this objection:

"The specific criminal act with which we are now concerned is failure to secure compensation. These bills would make people criminally liable for that act whether they had participated in it or not, and even though they knew nothing about

* * *

"Take, for instance, the directors of corporations whom these bills seek to make criminally liable. Many of them have nothing to do with the conduct of the corporation’s business, and know nothing about it. Many directors act as such merely because of their financial interest in the corporation. Directors are often chosen because of their influence and the value of their names. In England it is quite the fashion to select well-known members of the peerage.”

The Legislature apparently heeded these objections since corporate directors were not included in the final draft as enacted (L 1926, ch 532). It is reasonable to deduce a legislative intent not to apply strict liability to directors, who may "have nothing to do with the conduct of the corporation’s business”, but to apply it to the named corporate officers who are likely to have responsibility for the day-to-day operation and management of the corporate enterprise.

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

Order affirmed in a memorandum.


text:
    In the Matter of Frederick Pordum, Appellant, v Ewald B. Nyquist, as Commissioner of Education of the State of New York, et al., Respondents.
    Argued June 9, 1977;
    decided July 5, 1977

      Richard C. Heffern and Bernard F. Ashe for appellant.

      Frederick W. Burgess and Robert D. Stone for Ewald B. Nyquist, Commissioner of Education of the State of New York, respondent.

      Peter A. Vinolus for Board of Education of Lackawanna City School District, respondent.
   Memorandum. The order of the Appellate Division should be affirmed, without prejudice to any claim appellant may have against the Commissioner of Education.

The salient facts are outlined in the memorandum at the Appellate Division.

As it appears that a hearing panel, convened pursuant to Part 83 of the regulations of the commissioner, has heard the evidence and determined that the permanent certificate issued to appellant should not be revoked, that part of the proceeding brought to have such panel convened and such hearing held is now moot and is not reached. Similarly, as the Commissioner of Education, by his order of April 15, 1977, has vacated his previous order of January 24, 1973, which had enjoined the board of education from re-employing and reinstating appellant to the teaching staff of the Lackawanna City School District, court relief is no longer necessary on that question.

Appellant does not seek back pay for the time prior to February 1, 1973, but only for a period thereafter and solely from the board of education. It is undisputed that the board was willing at all times to accept his services and to compensate him therefor but was prevented therefrom only by virtue of the order and authority of the Commissioner of Education. Under such circumstances, the board of education should not be required to make payment to appellant (cf. Matter of Meliti v Nyquist, 41 NY2d 183, 187-188). This is not an instance in which the teacher was suspended by action of the board of education (see Matter of Jerry v Board of Educ., 35 NY2d 534).

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

Order affirmed, without costs, in a memorandum.


text:
    Alvord and Swift, Appellant, v New York Telephone Company et al., Respondents, et al., Defendants.
    Submitted June 13, 1977;
    decided July 5, 1977
   Motion to dismiss the appeal herein granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that no appeal lies as of right from the Appellate Division order of unanimous affirmance (CPLR 5601, subd [a]).


text:
    Haydee Brown, as Administratrix of the Estate of George Brown, Also Known as Jorge Brown, Deceased, Respondent, v State of New York, Appellant.
    Submitted May 2, 1977;
    decided July 5, 1977
   Motion to dismiss the appeal herein denied.


text:
    Dur-Bar Realty Company, Appellant, v City of Utica, Respondent.
    Submitted May 23, 1977;
    decided July 5, 1977
   Motion for leave to appeal denied upon the ground that an appeal lies as of right.


text:
    Fieldston Property Owners Association, Inc., Respondent, v Decorative Trends, Inc., et al., Defendants, and Geraldyne Walsh et al., Appellants.
    Submitted May 31, 1977;
    decided July 5, 1977
   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 (NY Const, art VI, § 3, subd b, par [7]).


text:
    Julius Gerzof, Appellant, v Frank A. Gulotta, Individually and as Presiding Justice of the Appellate Division of the Supreme Court of the State of New York, Second Judicial Department, et al., Respondents.
    Decided July 5, 1977
   Appeal taken as of right dismissed with prejudice to any motion for leave to appeal (CPLR 5514, subd [a]), without costs, by the Court of Appeals sua sponte, upon the grounds that no substantial constitutional question is directly involved and appellant is not aggrieved by the modification at the Appellate Division.


text:
    Florence Mazzarelli, Appellant, v Nicholas Mazzarelli, Respondent.
    Submitted April 11, 1977;
    decided July 5, 1977
   Motion to dismiss the appeal herein denied.


text:
    Pavilion Central School District, Respondent, v Pavilion Faculty Association, Appellant.
    Submitted May 31, 1977;
    decided July 5, 1977
   Motion for leave to appeal dismissed (1) upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (NY Const, art VI, § 3, subd b; CPLR 5602, subd [a], par 1, cl [i]) and (2) upon the ground that the motion for leave to appeal pursuant to CPLR 5602 (subd [a], par 1, cl [ii]) from the arbitration award does not lie.


text:
    Underhill Construction Corp., Appellant, v New York Telephone Company et al., Respondents, et al., Defendant.
    Submitted May 23, 1977;
    decided July 5, 1977
   Motion to dismiss the appeal herein denied.


author: Jasen, J. (dissenting).

text:
    The People of the State of New York, Respondent, v Clarence Smith, Appellant.
    Argued June 10, 1977;
    decided July 7, 1977

      Judith Preble and William E. Hellerstein for appellant.

      Eugene Gold, District Attorney (Alan D. Rubinstein of counsel), for respondent.
   Memorandum. Order of the Appellate Division reversed, the motion to suppress granted, and the indictment dismissed. Connection with a rented automobile alone did not give the police sufficient cause to stop defendant. The use of the flashlight in the circumstances of this case which resulted in the discovery of the firearm and the drugs was an unwarranted intrusion into the interior of the vehicle. There was no basis for suspicion other than defendant’s prior presence in a rented car and his walking about the block. At best this gave the police by way of subjective "hunch” "cause” to investigate. Had it not been for the "hunch” the police would not have directed their attention to the interior of the car. They were not making a routine check of this or other parked cars, attended or unattended. Certainly, there was no inevitable discovery following a proper arrest, as in People v Fitzpatrick (32 NY2d 499, 506-507, cert den 414 US 1033), the authority cited by the Appellate Division for its affirmance. More applicable and precisely in point is People v Allende (39 NY2d 474), involving a seizure of a weapon in a parked automobile, except for the fact that in the Allende case the police approached defendant with drawn guns.

Jasen, J. (dissenting).

I dissent and vote to affirm the order of the Appellate Division. To be sure, the investigatory stop of the defendant may not have been based upon sufficient suspicion to authorize a search of his person. But he was not searched nor does defendant seek to suppress any contraband discovered as a fruit of the arguably illegal stop. Instead, defendant moves to suppress a .32 caliber revolver which the police, lawfully positioned on the sidewalk, observed to be on the floor of defendant’s rented automobile. Quite apart from the stop, the police were lawfully on the public sidewalk and the gun was properly seized because this dangerous weapon was out in plain view, for the world to see. (People v Lemmons, 40 NY2d 505.) Of course, it was night and the officers used a flashlight to illuminate the interior of the car. However, it is well-settled law that shining a flashlight into the interior of a parked vehicle is not an unreasonable search. (E.g., People v Cruz, 34 NY2d 362, 370; People v Miller, 52 AD2d 425, 428-429; People v Howell, 78 Misc 2d 538, 540, affd 51 AD2d 1105.) The majority’s statement to the contrary, made without citation to any authority, overlooks established decisional law. Aside from the fact that there is controlling authority on the issue, there is no basis for concluding that the use of a flashlight was an unwarranted intrusion into the vehicle. As Mr. Justice Silverman, writing for a unanimous Appellate Division, has cogently stated, "[o]f course it is an elementary fact that all objects which are not themselves a source of light are seen because a light shines on them and is reflected from them. If this incident had happened in the daytime and the officer had seen the gun by daylight, it could not be argued that this was a search, or if the officer saw the gun by the reflected light of a street light, or the headlights of a passing car, this would not constitute a search. What the officer did when he shone his flashlight into the car was to furnish the light which would otherwise have come from daylight, street light or the lights of a passing car. While a flashlight held in the hands of a police officer and purposely shined upon someone is doubtless more annoying and in that sense [more] intrusive than indiscriminate daylight, street light or passing headlights, I do not think this should be held to constitute a search within the meaning of the Fourth Amendment.” (People v Miller, 52 AD2d 425, 428-429, supra.) In short, by using the flashlight, the officer only substituted artificial light for that, which in daytime, would have been supplied naturally by the sun.

It is a well-recognized, fundamental, and traditional police practice to shine lights into dark places, including hallways, closed stores, areaways, under stairs and stoops, around trees and bushes, and, most relevant here, parked automobiles. Such reasonable conduct by police personnel on night patrol in a large metropolitan area is essential for the protection of the public and of the officers themselves. The dark of night may shield illegal conduct brightly visible in day. As in this case, a parked car with a revolver in open view would be observed, and reported, by any passerby during the day. At night, the presence of a dangerous weapon in a populated area is hidden by the cloak of darkness. It is true that legitimate expectations of privacy would preclude police, even standing on a public street, from shining a flashlight through the window of a private residence. However, in this case, defendant left his automobile parked on a public street and scarcely could have expected that the contents would remain fully secure from public view. The majority’s decision to implicitly overrule the well-established searchlight cases strikes a hard and unfair blow at legitimate and reasonable police conduct.

The majority’s reliance on People v Allende (39 NY2d 474) is misplaced. In Allende we held that officers had seized the occupants of a parked vehicle, whose motor was running, by approaching the car with drawn guns. The majority concedes, in its memorandum, that no guns were drawn by the officers in this case. The most critical fact in Allende—the drawn guns—is totally absent from this case. In the Miller case, the court pointedly stated the controlling, and vital, distinction. The situations in cases like Allende, it wrote, are "very far from the present situation where appellant was neither prevented from doing anything he wanted to do nor directed to do anything nor was his car stopped or blocked by the police until after the police officer had seen the gun. Thus [we] think there was no 'seizure.’ ” (52 AD2d, at p 428.) Here, no guns were drawn, nor was the car stopped, nor was the defendant prevented from driving it away. Nor was there a search. As in Miller, "the police officer did not reach into the car, did not open a door or window, did not lay his hand on the car or on the door until he saw the gun; he merely flashed a light through the window of the car and then saw the gun.” (52 AD2d, at p 428.)

To conclude, it is my view that the conduct of the police officers was proper and reasonable under the circumstances. Both controlling decisional law and common sense dictate affirmance of the Appellate Division. The contrary conclusion reached by the majority is unfortunate. I dissent.

Chief Judge Breitel and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur in memorandum; Judge Jasen dissents and votes to affirm in a separate opinion. Order reversed, etc.


text:
    Richard Adams et al., Respondents, v "Horace” Acker et al., Defendants, and Norman Levy et al., Appellants. Fernley Realty Corp. et al., Third-Party Plaintiffs-Appellants, v Grand Union Company, Third-Party Defendant-Respondent, et al., Third-Party Defendants.
    Decided July 7, 1977
   Appeal by defendants Levy and Fernley Realty Corp. dismissed, without costs, by the Court of Appeals sua sponte, upon the ground it does not lie as of right (CPLR 5601, subd [a]).


text:
    Diane D. Alexandre, Respondent, v Joseph E. Davis, Appellant.
    Submitted June 20, 1977;
    decided July 7, 1977
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as modified, and, as modified, affirmed the order and judgment of Special Term granting plaintiffs motion for summary judgment, denied. Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as dismissed the appeal from the order of Special Term denying reargument, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution.

Motion for a stay dismissed as academic.


text:
    Sheila Babagonov et al., Respondents, v Benjamin Gordon et al., Appellants.
    Decided July 7, 1977
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no appeal lies (NY Const, art VI, § 3, subd b; CPLR 5601).


text:
    Roberta Coen, Appellant, v Stanley J. Coen, Respondent.
    Decided July 7, 1977
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the modification at the Appellate Division is not in a "respect, which is within the power of the court of appeals to review” (CPLR 5601, subd [a], par [iii]; Patron v Patron, 40 NY2d 582).


text:
    Faruolo, Caputi & Weintraub, Respondent, v Thomas Baasch, Appellant.
    Submitted June 27, 1977;
    decided July 7, 1977
   Motion to dismiss the appeal herein granted and the appeal dismissed, without costs, upon the ground it does not lie as of right (CPLR 5601).


text:
    Ellis Gittens et al., Appellants, v Edledge Jones, et al., Respondents.
    Submitted June 20, 1977;
    decided July 7, 1977
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that it does not lie (CPLR 5602).


text:
    In the Matter of the Estate of Joseph M. Klein, Deceased. Henry Nordlinger et al., Respondents; Adolph Klein, Appellant.
    Submitted June 27, 1977;
    decided July 7, 1977
   Motion to dismiss the appeals herein granted and the appeals dismissed, with costs and $20 costs of motion, upon the ground they do not lie (CPLR 5601).


text:
    In the Matter of the Arbitration between New England Petroleum Corporation et al., Appellants, and Asiatic Petroleum Corporation, Respondent.
    Submitted June 27, 1977;
    decided July 7, 1977
   Motion to dismiss the appeal granted and the appeal dismissed, wdth costs and $20 costs of motion, upon the ground that appellants are not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]).


text:
    In the Matter of Stanley Roberts et al., Appellants, v Supreme Court of the State of New York et al., Respondents.
    Decided July 7, 1977
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no appeal lies as of right from the unanimous determination of the Appellate Division (Cohen and Karger, Powers of the New York Court of Appeals, § 51, p 231).


text:
    In the Matter of Donald W. Tompkins, Appellant, v James P. Melton, as Commissioner of Motor Vehicles, Respondent.
    Submitted June 20, 1977;
    decided July 7, 1977
   Motion for leave to appeal denied.

On the court’s owm motion, appeal dismissed, without costs, upon the ground that it does not lie as of right (CPLR 5601).


text:
    In the Matter of Joseph Weinstock et al., Appellants, v Justices of the Supreme Court of Kings County et al., Respondents.
    Submitted June 27, 1977;
    decided July 7, 1977
   Motion for leave to appeal denied with leave to renew upon appropriate papers. (See CPLR 5514, subd [a]; 22 NYCRR 500.9 [a].)


text:
    Mobil Oil Indonesia, Inc., Appellant, v Asamera Oil (Indonesia) Ltd., et al., Respondents.
    Submitted June 13, 1977;
    decided July 7, 1977
   Motion to vacate stay and to dismiss appeal or, in the alternative, to resettle the order of this court dated May 10, 1977 denied. [See 41 NY2d 1103.]


text:
    Modjeska Sign Studios, Inc., Appellant, v Peter A. A. Berle, Individually and as Commissioner of the Department of Environmental Conservation of the State of New York, Respondent.
    Submitted June 27, 1977;
    decided July 7, 1977
   Motion for a stay as to Modjeska Sign Studios, Inc., granted. Motion for a stay as to proposed intervenor Dale dismissed.


text:
    The People of the State of New York, Respondent, v Angelo Mulé, Appellant.
    Submitted June 20, 1977;
    decided July 7, 1977
   Motion to dismiss the appeal herein granted and the appeal dismissed upon the ground that it does not lie as of right.


text:
    The People of the State of New York, Respondent, v David A. Gilligan, Appellant.
    Submitted June 10, 1977;
    decided July 14, 1977

      Lawrence Katzman for appellant.

      Lee Clary, District Attorney, for respondent.
   Memorandum. The order of the Appellate Division should be affirmed.

We reject defendant’s contention that there was insufficient evidence to sustain the jury’s verdict finding him guilty of the reduced charge of attempted burglary in the third degree. Defendant and another person were observed breaking in the front door of a liquor store in the early morning hours of Thursday, January 9, 1975. That defendant intended to commit a crime on entering the building—a necessary element of the crime of burglary in the third degree (Penal Law, § 140.20) —could be inferred beyond a reasonable doubt from the circumstances of the breaking. The defense rested at the close of the People’s case; no evidence was introduced on the basis of which it could be contended that the breaking was for a lawful purpose. The conviction was for an attempt rather than the substantive crime presumably because none of the witnesses testified to having observed defendant inside the liquor store as a sequel to the unlawful breaking.

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

Order affirmed in a memorandum.


text:
    In the Matter of Katherine Kirschner, Respondent, v Stephen Berger, as Acting Commissioner of the New York State Department of Social Services, Appellant.
    Argued June 10, 1977;
    decided July 14, 1977

      Louis J. Lefkowitz, Attorney-General (Ronald Cohen, Samuel A. Hirshowitz, Herbert O. Wallenstein and Joseph F. Wagner of counsel), for appellant.

      Michael Kolb and John D. Gorman for respondent.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


author: Jasen, J. (concurring).

text:
    The People of the State of New York, Respondent, v Roberto Perez, Appellant.
    Argued June 10, 1977;
    decided July 14, 1977

      Amy Rothstein and William E. Hellerstein for appellant.

      Eugene Gold, District Attorney (J. P. Kaplan of counsel), for respondent.
   Memorandum. The order of the Appellate Division should be affirmed.

Balancing the factors outlined in People v Taranovich (37 NY2d 442), we conclude that there has been no deprivation of the right to a speedy trial (see People v Ganci, 27 NY2d 418). The very serious nature of the charge necessitated a slow and careful preparation of the case and defendant has not demonstrated that the delay impaired his defense (cf. People v Johnson, 38 NY2d 271).

The reference in the concurring opinion to People v Johnson (supra) is inappropriate. In the first instance, the delay in Johnson was 18 months whereas here, as conceded by the parties, the period of delay attributable to the People, or the State generally, was 15 or 16 months—the same amount of time involved in Ganci. In addition, in Johnson the crime arose out of an altercation and was not the type of unprovoked predatory offense involved in the instant case. It is also significant to note that in Johnson, unlike the situation here, the record indicated that he might have lost his ability to prove his defense because of the delay. Here no such claim was made.

Since counsel had not been previously retained (cf. People v Hobson, 39 NY2d 479), the defendant’s request that an attorney be obtained for the lineup is not significant; it could not create a right to counsel where none existed (United States ex rel. Conomos v La Vallee, 363 F Supp 994,1001-1002). Nor can we say as a matter of law that the lineup was unnecessarily suggestive or improper (cf. Manson v Brathwaite, 432 US 98).

Jasen, J. (concurring).

I concur for affirmance of the Appellate Division order. Defendant was arrested on a charge of attempted murder and held in jail for 19 months awaiting trial. After trial, he was found guilty of assault in the first degree and possession of a weapon. People v Johnson (38 NY2d 271) is on point. In the Johnson case, defendant was held in jail on a murder charge for a period of 18 months. Even though the defendant was charged with a heinous crime, "a brutal murder with a knife”, and his claim of lost witnesses was never substantiated in any way, the court concluded, over my dissent, that defendant’s right to a speedy trial had been violated. (See 38 NY2d, at pp 282-283 [dissenting opn].) In many ways, this case is stronger than Johnson. The charge against this defendant is less serious and this defendant was held for one month longer than the defendant in Johnson. That this defendant does not claim that the delay cost him witnesses is of little moment since defendant Johnson’s claim was totally barren. I see no dispositive distinction between a claim that was totally barren of evidentiary substance and a claim that was never made at all.

While I disagreed with the court’s disposition of the Johnson case, I normally would be obligated to fully apply the binding decision of a majority of our court. Here, however, we have a unique circumstance. The members of the Johnson majority see fit to distinguish Johnson from the present case and conclude that Johnson does not mandate reversal of the Appellate Division order. Although I am not convinced by the distinctions made, I conclude that, since the members of the Johnson majority construe their holding in that case as not being dispositive here, I, likewise, am not required to view Johnson as dispositive. Under these circumstances, free of the constraint of Johnson, I vote for affirmance on the strength of the views I articulated in my dissent in Johnson.

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

Order affirmed.


text:
    In the Matter of Ferdinand L. Vari, Appellant, v Albert T. Hayduk et al., Constituting the Board of Elections of Westchester County, and Lewis H. Waugh et al., Respondents.
    Argued August 30, 1977;
    decided August, 31, 1977

      William P. Sirignano, Herbert N. Posner and Jack A. Addesso for appellant.

      Anthony H. Atlas for Lewis H. Waugh and others, respondents.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    In the Matter of Patrick Beary, Appellant, v Maurice Nadjari et al., and Alice Sachs et al., Constituting the Board of Elections of the City of New York, Respondents.
    Argued August 30, 1977;
    decided August 31, 1977

      Patrick Beary, appellant pro se.

      Michael D. Brown for Maurice Nadjari, respondent.
   Memorandum. Order affirmed, without costs. Section 137 of the Election Law in requiring candidates to be enrolled members of the party in which they seek nomination does not expressly or by implication require that they be enrolled party members in the geographical area in which they seek office. Enrollment in a party, unless qualified, means enrollment in the State party. Candidate Nadjari is such an enrolled member whether or not he had effected a valid transfer of his registration and enrollment from Suffolk County to Queens County at the time his petitions were filed (see Matter of Wallace v Power, 10 NY2d 790; cf. Matter of Basel v O’Bourke, 27 NY2d 655; Matter of Sullivan v Power, 16 NY2d 854, affg 24 AD2d 709; see, also, Matter of Wydler v Cristenfeld, 35 NY2d 719). Consequently, it is not necessary to reach or resolve the involved statutory interplay in the Election Law addressed, in part, by the Appellate Division.

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

Order affirmed.


text:
    In the Matter of Anthony M. Sortino, Appellant, v V. James Chiavaroli et al., Constituting the Board of Elections of the County of Monroe, et al., Respondents.
    Argued August 31, 1977;
    decided August 31, 1977

      Richard A. Kroll for appellant.

      Leo J. Kesselring, respondent pro se, and for Kent T. De Hond, respondent.

      William J. Stevens, County Attorney (Charles R. Testa of counsel), for Board of Elections of County of Monroe, respondent.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    In the Matter of Oliver Pilat et al., Appellants, v Alice Sachs et al., Constituting the Board of Elections of the City of New York, and Mario M. Cuomo, Respondents.
    Argued August 30, 1977;
    decided August 31, 1977

      John J. Keohane, Nathan Abramowitz and Kenneth Riddett for appellants.

      Herbert Rubin, Fabian Palomino, Edward L. Birnbaum, Morrell I. Berkowitz and William E. Simoson for Mario M. Cuomo, respondent.
   Memorandum. The courts below considered the question of permeation of fraud and irregularities, usually a question of fact, and resolved in each instance this question in respondents’ favor. (Matter of Ruiz v McKenna, 40 NY2d 815.) Consequently, the designating petition must be sustained and the order of the Appellate Division affirmed.

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

Order affirmed, without costs, in a memorandum.


text:
    In the Matter of Robert Straniere, Appellant, v Eugene A. Cutolo et al., Respondents.
    Argued August 30, 1977;
    decided August 31, 1977

      Jeremiah B. McKenna for appellant.

      Lawrence A. Mandelker for respondents.
   Memorandum. Order affirmed, without costs, for the reasons stated in the memorandum at the Appellate Division. The failure to join the objector Molinaro is not fatal. His objections were not reviewed by the Board of Elections. Under the circumstances of this case the objector Molinaro is not a necessary party since the aggrieved candidate himself has presented the issues for review (cf. Matter of Butler v Hayduk, 37 NY2d 497).

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

Order affirmed, without costs, in a memorandum.


text:
    In the Matter of Anibal S. Roman, Jr., et al., Respondents, v Francis B. Sharpe, Appellant, and Alice Sachs et al., Constituting the Board of Elections of the City of New York, Respondents.
    Argued August 30, 1977;
    decided August 31, 1977

      Lawrence A. Mandelker for appellant.

      Peter Lubell and Raymond F. Narral for petitioners-respondents.
   Memorandum. The order of the Appellate Division should be affirmed, without costs.

Two issues are tendered. We agree with the referee and both courts below that the petitions should not be invalidated on the ground that the words "new voter” were inserted in the statement of the subscribing witness, Iris Ortiz. It is not disputed that a newly registered voter may now sign or witness designating petitions in the year of first registration. No implementing provision, however, is contained in the printed form of the statement of a subscribing witness (cf. Election Law, § 135). Strict conformity with the statutory form thus being impossible when, as here, the subscribing witness is a newly registered voter, the insertion of the words "new voter” is sufficiently and accurately informative and constitutes compliance with the Election Law.

On the uncontroverted testimony of the subscribing witness, Special Term found that the alterations in dates of which appellant complains were all made at the instance of the subscribing witness, prior to her signing as subscribing witness, and in no way affected the validity of the petition. Inasmuch as this determination of fact was affirmed at the Appellate Division it is now beyond the scope of our review.

We must conclude, however, that the dissent at the Appellate Division "as to the issue of change of dates” manifested, understandably, a difference of opinion only as to the factual determination affirmed by the majority in that court. Accordingly, inasmuch as the dissent was not on a question of law, the court on its own motion dismisses the appeal taken as of right (CPLR 5601, subd [a], par [i]). Appellant’s alternative application for leave to appeal is granted.

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

Appeal taken as of right dismissed, without costs. Application for leave to appeal granted. Order affirmed, without costs.


text:
    In the Matter of John Gallagher, Respondent, v Everett F. McNab et al., Constituting the Board of Elections of the County of Suffolk, Respondents, and Carol A. Slattery, Appellant. In the Matter of John Gallagher, Respondent, v Everett F. McNab et al., Constituting the Board of Elections of the County of Suffolk, Respondents, and Fannie Della Franca, Appellant.
    Argued August 30, 1977;
    decided August 31, 1977

      Martin J. Burgess, Jr., for appellants.

      Steven M. Schapiro for petitioner-respondent.
   Memorandum. The orders of the Appellate Division should be reversed.

It is clear from the statute (Election Law, § 136, subd 6, par [j]) that if the political subdivision in question, here the town, is entirely within a senatorial district that the number of signatures required need not exceed the requirement for the senatorial district. That requirement is for 1,000 signatures (Election Law, § 136, subd 6, par [h]) and, as each of the appellants had more than that amount, both of the designating petitions were properly accepted and filed by the Board of Elections. In Matter of Stoller v Ackerson (30 NY2d 877) there was no contention raised or tender of evidence made on the issue here relevant.

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

In each case: Order reversed, without costs, and the judgment of Supreme Court, Suffolk County, reinstated in a memorandum.


text:
    In the Matter of Barry M. Farber, Respondent, v Robert S. Carroll, Appellant, et al., Respondents.
    Argued August 30, 1977;
    decided August 31, 1977

      John J. Keohane for appellant.

      Robert D. Clark and John P. Dellera for respondent.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    In the Matter of Douglas W. Prescott et al., Respondents, v Peter D. Jones, Appellant, et al., Respondents. (And Another Proceeding.)
    Argued August 30, 1977;
    decided August 31, 1977

      John F. Haggerty for appellant.

      Robert D. Clark for petitioners-respondents.
   Memorandum. On this record, which included a consideration of the signatures which were the subject matter of Farber v Carroll (42 NY2d 994 [decided herewith]), there is no basis for us to disturb the factual finding of Special Term, as affirmed by the Appellate Division, that the petition here contains over 10,000 valid signatures (as presently required by Election Law, § 136, subd 6, par [a]) and is not permeated with fraud as a matter of law (Matter of Ruiz v McKenna, 40 NY2d 815; cf. Matter of Proskin v Nolan, 40 NY2d 829).

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

Order affirmed, without costs, in a memorandum.


text:
    John P. Iafrate, as Director of the Pilgrim State Psychiatric Center, et al., Respondents, v Suffolk County Board of Elections, Appellant.
    Argued August 30, 1977;
    decided August 31, 1977

      Howard E. Pachman, County Attorney (Patrick A. Sweeney of counsel), for appellant.

      Louis J. Lefkowitz, Attorney-General (Daniel M. Cohen, Samuel A. Hirshowitz and Walter Babcock of counsel), for respondents.
   Memorandum. In this proceeding to compel the Suffolk County Board of Elections to permit certain individuals who are voluntary residents of the Pilgrim State Psychiatric Center to register and vote in a general election, the board contends that an evidentiary hearing is essential to establish the residence of such individuals and that the affidavit submitted by one such individual, found to be adequate as to him by the Appellate Division, was insufficient as a matter of law. We affirm.

The affidavit made by the resident states that he has voluntarily resided at the psychiatric center for over 30 years, that he has no other residence or place of abode, and that he considers Suffolk County his home. The record is devoid of any opposing affidavit or other proof from the board. Despite this lack of proof that the facts are not as stated, the board seeks to create a rule requiring evidentiary hearings in all such instances.

In Matter of Palla v Suffolk County Bd. of Elections (31 NY2d 36, 45), there were "issues of fact raised by the affidavits”. Under the circumstances here, however, the court had a right to consider and rely upon an affidavit by the individual seeking registration, unrefuted by any factual statement or showing, as sufficient proof of residency (see Election Law, § 335; 2 Gassman, Election Law, p 688).

Since registration to vote is a continuing status, the matter should not be considered moot simply because of the passing of an election for which registration was initially sought. Moreover, since the issue is likely to recur in the future, notwithstanding any indications of changed circumstances, review should not be declined on the grounds of mootness (see Matter of Carr v New York State Bd. of Elections, 40 NY2d 556, 559).

Accordingly, the order of the Appellate Division, so far as appealed from, should be affirmed, without costs.

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

Order affirmed.


text:
    In the Matter of Alan D. Goldstein, Appellant, v Arthur J. Carlsen et al., Constituting the Board of Elections of the County of Erie, and Anthony P. Constantino, Respondents.
    Argued August 30, 1977;
    decided August 31, 1977

      Mark J. Mahoney for appellant.

      T. J. Szymanski, County Attorney (Ernest J. Norman of counsel), for Arthur J. Carlsen and another, respondents.

      Mark Matthew Jasen for Anthony P. Constantino, respondent.
   Concur: Chief Judge Breitel and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Cooke. Taking no part: Judge Jasen.


text:
    Barry M. Farber, Respondent, v Robert S. Carroll, Appellant, et al., Respondents.
    Submitted August 1, 1977;
    decided August 31, 1977
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from involves the exercise of discretion of a type not reviewable by the Court of Appeals.


text:
    In the Matter of Metropolitan Bank of Syracuse, Respondent, v Department of Assessment of the City of Syracuse, Appellant.
    Submitted July 18, 1977;
    decided September 1, 1977
   Motion for leave to appeal denied upon the ground that an appeal lies as of right (CPLR 5601, subd [a], par [iii]; Matter of Weinstock, 37 NY2d 748).


text:
    In the Matter of the Arbitration between Niagara Wheatfield Administrators Association, Appellant, and Niagara Wheatfield Central School District, Respondent.
    Submitted July 11, 1977;
    decided September 1, 1977
   Motion to dismiss the appeal granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution (see Matter of Matofsky [Lisa Wigs & Wiglets], 29 NY2d 548; Cohen and Karger, Powers of the New York Court of Appeals, § 11, pp 42-46).


text:
    Eleanor Simcuski, Appellant, v Anthony J. Saeli, Respondent, et al., Defendant.
    Submitted July 11, 1977;
    decided September 1, 1977
   Motion to dismiss the appeal herein denied.


text:
    The People of the State of New York ex rel. Edward G. Harrison, Appellant, v Harold J. Smith, as Superintendent of the Attica Correctional Facility, Respondent.
    Submitted July 11, 1977;
    decided September 7, 1977
   Motion to dismiss the appeal herein granted and the appeal dismissed, without costs, upon the ground that the relator has been released on parole and, therefore, his liberty is no longer restrained to such a degree as to entitle him to the extraordinary writ of habeas corpus.


text:
    James M. Welty et al., Respondents, v C. Sterling Brown, Appellant.
    Decided September 7, 1977
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the stipulation for judgment absolute, under the facts of this case is illusory and frustrates the purpose of CPLR 5601 (subd [c]) (see 7 Weinstein-KornMiller, NY Civ Prac, par 5601.16; 11 Carmody-Wait 2d, NY Prac, §§ 71:34, 71:35).


text:
    Sheila Babagonov et al., Respondents, v Benjamin Gordon et al., Appellants.
    Submitted August 22, 1977;
    decided September 9, 1977
   Letter, treated as motion to vacate the Court of Appeals order of dismissal dated July 7, 1977, denied. [See 42 NY2d 965.]


text:
    Brewery Workers Pension Fund et al., Respondents, v New York State Teamsters Conference Pension and Retirement Fund et al., Appellants.
    Submitted July 25, 1977;
    decided September 9, 1977
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, upon the grounds that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution, and involves a question of discretion of the type not reviewable by the Court of Appeals.


text:
    Helen Connell, Plaintiff, v St. Mary’s Hospital of Troy, Appellant, and Aetna Life Insurance Company, Respondent.
    Submitted August 29, 1977;
    decided September 9, 1977
   Motion to dismiss the appeal herein granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that appellant is not a party aggrieved by the order of the Appellate Division (CPLR 5511).


text:
    Ellen Hurley, Appellant, v James Dougherty et al., Respondents, et al., Defendants.
    Submitted July 25, 1977;
    decided September 9, 1977
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that the order sought to be appealed from involves a pure question of discretion of the type not reviewable by the Court of Appeals (Harman v Grabowetsky, 14 NY2d 957).


text:
    Anne Manos, Plaintiff, v James Manos, Appellant. Grid Realty Corp. et al., Respondents.
    Submitted August 29, 1977;
    decided September 9, 1977
   Motion for a stay granted only to the extent that respondent Grid Realty Corp. is restrained from either conveying or encumbering the property pending determination of the appeal herein.


text:
    In the Matter of Dock Fretwell, Individually and on Behalf of All Others Similarly Situated, et al., Appellants, v Commissioner, Department of Agriculture and Markets et al., Respondents.
    Submitted August 8, 1977;
    decided September 9, 1977
   Motion to dismiss the appeal herein granted and the appeal dismissed, without costs, upon the ground that appellants are not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]).


text:
    In the Matter of John Lane, Appellant, v Norman F. Gallman et al., Constituting the State Tax Commission, Respondents.
    Submitted August 29, 1977;
    decided September 9, 1977
   Motion to vacate the Court of Appeals order of dismissal dated April 28, 1977 denied. [See 42 NY2d 823.]


text:
    In the Matter of Louis J. Lefkowitz, as Attorney-General of the State of New York, et al., Respondents, and New York State Urban Development Corporation, Respondent-Appellant, v Public Service Commission, Appellant. Consolidated Edison Company of New York et al., Intervenors-Appellants.
    Submitted August 8, 1977;
    decided September 9, 1977
   Motion to amend remittitur granted. Return of remittitur requested and, when returned, it will be amended by adding thereto the following: The Public Service Commission is directed, as indicated in the last substantive paragraph of the Per Curiam opinion of the court, to provide for an appropriate adjustment of refunds and payments among the users of electric service to correct the erroneous rates imposed for the period in question. (See 40 NY2d 1047.)


text:
    In the Matter of Dennis Shanley, Appellant, v Adele Leonard, as Executive Directrix of the Nassau County Civil Service Commission, Respondent.
    Decided September 9, 1977
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the modification at the Appellate Division is not substantial (CPLR 5601, subd [a], par [iii]).


text:
    In the Matter of Jeanette P. Strongin, Respondent, v Ewald B. Nyquist, as Commissioner of Education of the State of New York, et al., Appellants.
    Submitted July 18, 1977;
    decided September 9, 1977
   Motion to vacate the Court of Appeals order dated June 29, 1977 dismissing the appeal herein for failure of prosecution granted. On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution. Treating the papers further as a motion for leave to appeal pursuant to CPLR 5602 (subd [a], par 2), motion for leave to appeal granted.


text:
    The People of the State of New York ex rel. Donald F. Cordrey, Appellant, v State of New York, Department of Correctional Services, Board of Parole, et al., Respondents.
    Submitted August 15, 1977;
    decided September 9, 1977
   Motions to dismiss the appeal herein granted and the appeal dismissed, without costs, upon the ground of mootness.


text:
    The People of the State of New York ex rel. Kris Satti, on Behalf of Karim K. Satti, Respondent, v Anis K. Satti, Appellant.
    Submitted August 22, 1977;
    decided September 9, 1977
   Motion for a stay of a warrant of attachment dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain the motion since the warrant of attachment which is the subject of the motion was not issued in the proceeding here on appeal.


text:
    Boston Stock Exchange et al., Appellants, v State Tax Commission et al., Respondents.
    Reargued September 8, 1977;
    decided September 13, 1977

      Roger Pascal of the Illinois Bar, admitted pro hac vice, Milton H. Cohen, Alton B. Harris and Ann Rae Heitland for appellants.

      Louis J. Lefkowitz, Attorney-General (Robert W. Bush and Ruth Kessler Toch of counsel), for respondents.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Coóke.