author: Jones, J.

text:
    F. I. duPont, Glore Forgan & Co., Appellant, v William S. Chen et al., Respondents.
    Argued May 3, 1977;
    decided June 9, 1977

      Mortimer Goodman, New York City, for appellant.

      Irving S. K. Chin, New York City, for respondents.
   Jones, J.

We conclude that, in at least some circumstances, an apartment house doorman may be "a person of suitable age and discretion at the actual * * * dwelling place” of a tenant in the apartment house to whom a summons may properly be delivered for the purposes of alternative service under CPLR 308 (subd 2).

In this case copies of the summons and complaint were delivered to the Sheriff of the City of New York for personal service on each of defendants, husband and wife. On Tuesday, September 24, 1974, a Deputy Sheriff went to the apartment house at 220 West 93rd Street, Manhattan, in which defendants resided. It appears that he was permitted entry and made his way to defendants’ apartment, No. 4A. On receiving no response, he left a card inviting defendants to communicate with him. On Thursday, September 26, he returned, again was permitted entry and on receiving no response left his card under the door of defendants’ apartment for the second time. When he went back to the apartment house on Monday, September 30, he was greeted by the doorman. He identified himself and inquired about defendants. After informing the Deputy Sheriff that defendants had received his message, the doorman would not permit him to go up to defendants’ apartment. The deputy then handed the doorman two copies of the summons and complaint, one set for each defendant. On returning to his office the deputy also mailed copies to each defendant at 220 West 93rd Street.

On the basis of a report of a special referee made after a hearing, Special Term denied defendants’ motion to set aside the service. On appeal the Appellate Division reversed, on the law, granted the motion and dismissed the complaint. We conclude that it cannot be said as a matter of law that the service was invalid as not in conformity with the requirements of CPLR 308 (subd 2), and accordingly we reverse.

Inasmuch as Special Term confirmed the referee’s report and its findings of fact were not disturbed at the Appellate Division, we must take them as established for the purposes of the present appeal (CPLR 5612, subd [a]; cf. CPLR 5712, subd [c], par 1). We reject defendants’ contention that in the fact-finding process they were denied due process of law because, as they assert, .the referee imputed "total credibility to the Deputy Sheriffs testimony merely because he is a salaried sworn public official”. The referee articulated three grounds for crediting the testimony of the Deputy Sheriff rather than that of defendants and their witness, the doorman, only one of which was the deputy’s status as a public official. The other two grounds were that the deputy was a disinterested witness (as defendants’ witnesses were not) and that his oral testimony at the hearing was consistent with the contents of his certificates of service. We perceive no basis on which the referee’s determination with respect to the credibility of the witnesses who appeared before him should be set aside as a matter of law.

Assuming the facts as found by the referee, we turn to consideration of the two issues of substance urged by defendants—that the doorman was not "a person of suitable age and discretion” and that delivery of the papers to the doorman in the lobby of the apartment house was not "at the actual * * * dwelling place” of defendants. Again we reject defendants’ contentions.

At the outset we note that the provisions of the Civil Practice Law and Rules with respect to personal service were significantly recast with the amendment of section 308, effective September 1, 1970 (L 1970, ch 852). In that year the Judicial Conference sponsored the insertion of new subdivision 2. Prior to that time delivery of the summons to a person other than the defendant himself (except to an agent designated for service) was impermissible unless, after diligent efforts, personal delivery could not be made to the defendant. The prior provisions had thus authorized substituted service but not alternative service. The new type of alternative service was carefully defined, had to be accompanied by mailing to the person to be served, and required strict proof of service. Because of the 1970 amendment any consideration of whether due diligence was or was not used in an effort to make delivery to these defendants in person is irrelevant.

We conclude that it cannot be said as a matter of láw that the doorman was not "a person of suitable age and discretion” within the contemplation of subdivision 2 of section 308. There is nothing in this record to suggest, nor indeed do defendants claim, that the duties of this particular doorman were other than those of the regular apartment house doorman—to screen callers, to announce visitors and to accept messages and packages for delivery to the tenants. Moreover, here the referee found explicitly that this doorman had functioned as a responsible communicator; he had informed the Deputy Sheriff that defendants had received the latter’s message. The source of this information must have been the defendants themselves. There is nothing to defendants’ claim that to be "a person of suitable age and discretion” the particular individual must have "a family relationship” with the defendant. Nor is there any other basis for setting aside, as a matter of law, the determination of the referee that this doorman came within the contemplation of CPLR 308 (subd 2) as "a person of suitable age and discretion”. (Cf. 1 Weinstein-Korn-Miller, NY Civ Prac, par 308.13.)

We also conclude that it cannot be held as a matter of law that delivery of the papers in the lobby of the apartment house in the circumstances disclosed here was not delivery "at the actual dwelling place” of defendants. It is not disputed that defendants resided in apartment No. 4A. In our analysis if a process server is not permitted to proceed to the actual apartment by the doorman or some other employee, the outer bounds of the actual dwelling place must be deemed to extend to the location at which the process server’s progress is arrested. In this instance that location was the lobby of the apartment house. While it would probably be sufficient for purposes of the statute if the defendant were a tenant in an apartment house in which, as a matter of practice, the doorman was under instructions not to admit callers without the consent of the tenants, in this case the inference was available to the referee that having been admitted on the 24th and 26th, when the Deputy Sheriff was barred by the doorman on the 30th, it was at the specific direction of others. At least it cannot be held as a matter of law on this record that the action of the doorman in refusing permission to the Deputy Sheriff to proceed to apartment 4A was not attributable for purposes of this statute to defendants.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the case remitted to that court for a review of the facts (CPLR 5613).

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

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

       We note that the parties stipulated to dispense with a transcript of the hearing before the referee.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of the Claim of James W. Hulse, Appellant. Louis L. Levine, as Industrial Commissioner, Respondent.
    Argued January 4, 1977;
    decided February 8, 1977

      James W. Hulse, appellant pro se.

      Louis J. Lefkowitz, Attorney-General (Irving Jorrisch, Samuel A. Hirshowitz and Murray Sylvester of counsel), for respondent.
   Memorandum. Order of the Appellate Division reversed, with costs, the decision of the Unemployment Insurance Appeal Board annulled, and the matter remitted to the Appellate Division, Third Department, with directions to remand for determination of the claim.

Since claimant’s refusal to comply with his employer’s demands that he work overtime did not "compel” his dismissal, however justified that dismissal might have been, his firing is not within the "provoked discharge” exception (Matter of James [Levine], 34 NY2d 491, 494-495, 498; Matter of De Grego [Levine], 39 NY2d 180, 183-184). Therefore, and since he had been discharged by his employer, his separation was not "voluntary” (Labor Law, § 593, subd 1).

Nor does the refusal to work overtime necessarily constitute misconduct warranting deprivation of unemployment insurance benefits, even if the employer is entitled to discharge the employee for the refusal (Labor Law, § 593, subd 3; cf. Matter of Litwin [Levine], 39 NY2d 1043). Every discharge for cause does not mean that the cause constitutes misconduct, although it may (Matter of De Grego [Levine], 39 NY2d 180, 184, supra). In that last event the employee would not be entitled to benefits. The difficulty in this case is that the board never made a finding of fact that claimant had been guilty of disqualifying misconduct. Consequently, claimant is entitled to unemployment insurance benefits.

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

Order reversed, etc.


text:
    In the Matter of the Arbitration between Lange-Finn Construction Co., Inc., Appellant-Respondent, and C. R. Joyce & Sons, Inc., Respondent-Appellant; M. Kramer & Sons, Inc., et al., Respondents.
    Argued January 3, 1977;
    decided February 8, 1977

      Prescott C. Sook and Terrance P. Christenson for appellant-respondent.

      Leslie F. Couch for respondent-appellant.

      George F. Wenger for F. W. Newman & Sons, Inc., respondent.

      Robert E. Simon for M. Kramer & Sons, Inc., respondent.
   Order affirmed, without costs, on the memorandum at the Appellate Division (50 AD2d 696).

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


text:
    In the Matter of Troy Towers Redevelopment Company, Inc., Respondent, v City of Troy et al., Appellants, et al., Respondent.
    Argued January 3, 1977;
    decided February 8, 1977

      James R. Reilly, Corporation Counsel (Henry Nahal of counsel), for City of Troy, appellant.

      George S. Lettko for Enlarged School District of the City of Troy, appellant.

      Prescott C. Sook for Troy Towers Redevelopment Company, Inc., respondent.
   Order affirmed, without costs, on the opinion by Mr. Justice T. Paul Kane at the Appellate Division (51 AD2d 173).

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


text:
    Niagara Falls Urban Renewal Agency, Respondent, v Alps Motor Inn and Restaurant, Inc., Appellant, et al., Defendants.
    Argued January 4, 1977;
    decided February 8, 1977

      Harold M. Halpern and A. Russell Leone for appellant.

      George M. Donohue, Corporation Counsel (Michael V. Maloney of counsel), for respondent.
   Memorandum. The order of the Appellate Division is affirmed, with costs. The appraisers for both parties and the courts below utilized the capitalization of income method of valuation by capitalizing the net economic rent attributable to the subject premises (see, generally, 5 Nichols, Eminent Domain, § 19.23); and all agreed upon a 13.6% capitalization figure. However, as the Appellate Division indicated, defendant’s appraiser erred in basing his valuation of the comparable hum’s restaurant on a flat rental figure plus a percentage of gross sales, since the hum’s lease did not require payment of a percentage of gross sales. The trial court erred in concluding that the parties’ appraisers agreed on the net economic rent of the premises, since appellant’s appraiser had deducted various annual costs from his figure while the respondent’s appraiser did not. On the basis of the insufficiency in the trial court’s findings, the Appellate Division modified the award (see Van Epps v State of New York, 19 AD2d 854).

On this appeal, appellant does not challenge the Appellate Division’s base economic rent figure of $4.85 per square foot which was predicated on the base rent in the comparable hum’s lease with an upward adjustment for the superior location, size and nature of operations of the subject premises. It is appellant’s contention, and indeed its main thrust upon this appeal, that the Appellate Division erred in not including the basement area of the restaurant in its total figure for the net economic rent of the subject premises. There is no evidence in the record, however, to support the application of the base rent to the basement area since neither appraiser attributed any income to this area or utilized the area in computing net economic rent. Finally, in response to appellant’s claim that the Appellate Division erred in failing to consider the lease on the nearby Schraft’s property, it is noted that the appellant’s own appraiser testified that the Schraft’s facility was not comparable to the subject premises in that it included a large lobby, gift shop, elevators and underground parking and the Schraft’s lease did not allocate rent between the motel and restaurant portions of the premises.

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

Order affirmed.


text:
    In the Matter of the Arbitration between Fayetteville-Manlius Central School District, Respondent, and Fayetteville-Manlius Teachers Association, Appellant.
    Argued January 3, 1977;
    decided February 8, 1977

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

      Carter Strickland and John F. Lawton for respondent.
   Order reversed, with costs, the arbitrator’s award reinstated for reasons given in the dissenting opinion by Mr. Justice Harry D. Goldman at the Appellate Division (51 AD2d 91, 93-96) and the matter remitted to Supreme Court, Onondaga County, for the entry of appropriate judgment.

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


text:
    In the Matter of Irish International Airlines, Appellant. Louis L. Levine, as Industrial Commissioner, Respondent.
    Argued January 4, 1977;
    decided February 8, 1977

      Michael Alexander and Stuart B. Fisher for appellant.

      Louis J. Lefkowitz, Attorney-General (Irving Jorrisch, Samuel A. Hirshowitz and Murray Sylvester of counsel), for respondent.
   Order affirmed, without costs, for reasons stated in the opinion by Mr. Justice Michael E. Sweeney at the Appellate Division (48 AD2d 202).

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


text:
    Ancorp National Services, Inc., Appellant, v Port Authority of New York and New Jersey, Respondent. (Action No. 1.) (And Three Other Actions.)
    Argued January 4, 1977;
    decided February 8, 1977

      Roy M. Cohn and Ronald F. Poepplein for appellant.

      Richard K. Helman, Joseph Lesser, Alan J. Littau and Patrick J. Falvey for respondent.
   Order affirmed, with costs, on the memorandum at the Appellate Division (50 AD2d 790).

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


text:
    James E. Simon, Appellant, v Ernest L. Boyer, as Chancellor of the State University of New York, et al., Respondents.
    Argued January 3, 1977;
    decided February 8, 1977

      James W. Kirkpatrick for appellant.

      Louis J. Lefkowitz, Attorney-General (William J. Kogan and Ruth Kessler Toch of counsel), for respondents.
   Memorandum. The order of the Appellate Division should be affirmed. The petitioner, employing the provisions of a collective bargaining agreement, submitted his grievance to arbitration. The arbitrator found that the petitioner’s appointment for an additional year in a special capacity did not grant him tenure rights. The petitioner is bound by the award under the terms of the agreement as well as by the principle of arbitration and award (see, e.g., Matter of Weinrott [Carp], 32 NY2d 190, 194).

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of the Estate of Bess Thoens, Also Known as Bessie Thoens, Deceased. Victor Rizika, Appellant; Barnet Kaprow et al., Respondents.
    Argued January 4, 1977;
    decided February 8, 1977

      Robert Konove and Ronald L. Konove for appellant.

      Barnet Kaprow, Philip A. Limpert, Philip A. Limpert, Jr., and Gerald Moss for preliminary executors and others, respondents.

      Joseph A. Cox and Robert E. Steinberg for Catholic Charities of the Archdiocese of New York, respondent.

      Richard A. Watson for New York Infirmary, respondent.
   Order affirmed, with costs payable personally by claimant, on the opinion by former Surrogate S. Samuel Di Falco.

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


text:
    In the Matter of Valorie Rathbone, Appellant, v Board of Education of the Hamilton Central School District, Respondent.
    Argued January 3, 1977;
    decided February 8, 1977

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

      Joe Schapiro for respondent.
   Order affirmed, with costs, on the Per Curiam opinion at the Appellate Division (47 AD2d 172).

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


text:
    The People of the State of New York, Respondent, v Bruno Esteves, Appellant.
    Submitted January 12, 1977;
    decided February 8, 1977

      Theodore Ruthizer and William E. Hellerstein for appellant.

      Robert M. Morgenthau, District Attorney (Michael G. Berger and Peter L. Zimroth of counsel), for respondent.
   Memorandum. The order of the Appellate Division should be affirmed.

Defendant pleaded guilty to the crimes of rape in the first degree, robbery in the first degree, grand larceny in the third degree, possession of a weapon as a felony, burglary in the second degree and endangering the welfare of a child, as charged in an indictment. The acts underlying these charges involved the burglarizing of the apartment of a married woman, holding a knife to the throat of her nine-year-old daughter, and the raping of the mother under the threat of raping the child unless the mother submitted.

At the time of sentencing, the prosecutor and counsel for defendant addressed the court concerning defendant’s transgressions and background. The prosecutor asked for a top minimum sentence of eight and one-third years and defendant’s attorney suggested that no minimum be imposed. The court was made aware of another indictment pending against defendant based on an allegedly similar modus operandi and involving burglary and knife-point rape. As to the counts of the indictment as to which defendant pleaded guilty, the court sentenced defendant to indeterminate terms of 6 to 18 years on the rape and robbery convictions, to indeterminate terms having máximums of four and seven years respectively on the convictions for grand larceny and possession of a weapon, all terms to run concurrently, and to conditional discharges on the convictions for burglary and endangering the welfare of a child. The sentencing court did not set forth its reasons for imposing the six-year minimum terms.

Section 70.00 (subd 3, par [b]) of the Penal Law provides that, where the sentence is for a class B, C or D felony, if the court fixes a minimum period of imprisonment, "the court shall set forth in the record the reasons for its action”. This directive should be fulfilled. Although the omission in following the statute is not condoned, there would be no need to remit this matter to Supreme Court for resentencing (see People v Lynch, 28 NY2d 524), other than as a means of pointing out that the statute was not followed to the letter. The reasons which impel the minimum terms are obvious from the record, which is also more than adequate for a review by the Appellate Division of any question as to excessiveness of sentence. As the Appellate Division indicated, we should not now require that which would be futile and pointless. (Cf. People v Burke, 39 NY2d 729.)

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

Order affirmed.


text:
    Theodore W. Powell et al., Plaintiffs, v Gates-Chili Central School District et al., Appellants, and Town of Gates, Respondent, et al., Defendant.
    Argued January 5, 1977;
    decided February 10, 1977

      William V. Gough for appellants.

      Thomas E. Goldman for respondent.
   Memorandum. The appeal from the order of the Appellate Division denying a motion to amend cross claims should be dismissed, without costs, upon the ground that the order does not finally determine the action within the meaning of the Constitution. The order of the Appellate Division granting a motion to dismiss cross claims should be affirmed, without costs. On any view of the school district’s pleading allegations, assertions, and contentions with regard to its claim over against the town, whether on a theory of indemnification or relative apportionment of liability, it may not recover, as a matter of law. The argument of the creation of a "trap” by reason of incompleted salting of the highway and the ramp is without merit. The incompleted salting in subzero weather shortly after the storm did not constitute the kind of "affirmative action” with regard to snow and ice conditions upon which liability may be based. Even if the highway maintenance agreement were alleged and proved, liability would still be based ultimately upon negligence by the town and not on its breach of agreement with the county to maintain the highway.

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

On appeal from order denying motion to amend cross claims: Appeal dismissed.

On appeal from order granting motion to dismiss cross claims: Order affirmed.


author: Per Curiam.

text:
    Rosemont Enterprises, Inc., Appellant, v Clifford Irving, Respondent, et al., Defendants.
    Argued January 6, 1977;
    decided February 10, 1977

      David I. Shivitz, Howard M. Jaffe and Mark A. Pachman for appellant.

      Harold P. Weinberger and Maurice N. Nessen for respondent.
   Per Curiam.

The question certified does not present a question of law decisive of the correctness of the determination of the Appellate Division. Plaintiff seeks, and has been denied, a modification of an existing preliminary injunction. The remedy requested is equitable in nature; whether to award relief is committed to the discretion of the Supreme Court, and perforce, to the Appellate Division. Since the issue is within the discretionary power of the Appellate Division, our inquiry may proceed no further for no abuse of discretion is claimed or shown. The Appellate Division has denied the plaintiff’s application and, even if the court erred in its statements of law, its conclusion rests also on the alternative ground of discretion. Where the decision could turn, either exclusively or alternatively, on the exercise of discretion, any question of law certified by the Appellate Division could not be considered decisive. (Patrician Plastic Corp. v Bernadel Realty Corp., 25 NY2d 599, 605; Cohen and Karger, Powers of the New York Court of Appeals, § 89, p 384.) To be contrasted is the case where the authority of the Appellate Division is in doubt (Barclay’s Ice Cream Co. v Local No. 757, 41 NY2d 269) or where a persisting reviewable law issue, existing entirely apart from matters of discretion or fact, controls the correctness of the result reached by the court below. Neither situation obtains here and the appeal must be dismissed.

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

Appeal dismissed, without costs. Oral motion to amend record dismissed as academic.


text:
    The People of the State of New York, Appellant, v Kenneth Arnold Yarter, Jr., Respondent.
    Argued January 5, 1977;
    decided February 10, 1977

      Thomas E. Mercure, District Attorney, for appellant.

      Edward J. McMahon for respondent.
   Memorandum. The order of the Appellate Division should be affirmed.

The County Court suppressed certain oral and written statements made by defendant, as well as certain physical evidence secured as the result of these statements. The findings made by and the determination of the County Court have been affirmed by the Appellate Division. These findings are binding upon this court and, thus, we are required to accept them (NY Const, art VI, § 3; People v Rizzo, 40 NY2d 425; People v Leonti, 18 NY2d 384; Cohen and Karger, Powers of the New York Court of Appeals, § 198, p 742).

Given these findings beyond review, we are unable to say as a matter of law that the People have sustained their burden of proving beyond a reasonable doubt that these statements were made voluntarily (People v Huntley, 15 NY2d 72). Hence, the order of the Appellate Division must be affirmed.

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

Order affirmed in a memorandum.


text:
    In the Matter of Edward W. Craig, Appellant, v Zoning Board of Appeals of the City of Yonkers, Respondent.
    Argued January 5, 1977;
    decided February 10, 1977

      John J. Fusco for appellant.

      Eugene J. Fox, Corporation Counsel (William N. Carroll of counsel), for respondent.

      Maurice F. Curran and Michael J. Trainor for Lawrence Park West Neighborhood Homeowners Association, Inc., and others, amici curiae.

   Memgrandum. The order of the Appellate Division should be affirmed.

In the general rezoning adopted by the City of Yonkers in 1968, section 107-55 (D) (2) was included in the amending ordinance to afford protection, in the specified instances, to property which prior to the 1968 enactment had conformed to zoning requirements but which would otherwise have violated the new, more restrictive minimum standards as to lot area and width. Appellant cannot avail himself of this provision, however, to shelter his property from the 200-foot frontage requirement of the 1968 ordinance because the 87.70-foot frontage of his lot had not conformed to the pre-1968 frontage requirement of 100 feet. Appellant is not, therefore, entitled to relief under this section.

Nor can we conclude that, consideration of section 107-55 (D) (2) aside, it was an abuse of discretion on the part of the Zoning Board of Appeals to have denied appellant’s application for a variance in this instance. When appellant purchased his lot in 1965, he was aware that it did not then conform to zoning standards. Nonetheless at that time he and his wife occupied the premises adjoining on the northeast as their residence, and he made the purchase as an accommodation to the then owner of the property who was selling a major portion to a neighbor who did not have financial resources to acquire the entire property.

The fact that appellant’s present predicament can be said to be self-created would not, however, mandate the automatic denial of his application. What is determinative is the fact that, while plausible argument is advanced that appellant may have suffered economic loss, there is no proof of the existence or dimension of such loss. Appellant has not demonstrated that his lot cannot be put to reasonable use or that the denial of his application otherwise works an impermissible confiscation. In these circumstances it cannot be held that the denial of appellant’s application for a variance was arbitrary or unlawful. (Matter of Cherry Hill Homes v Barbiere, 28 NY2d 381, 384.)

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 Ivan Natchev, Appellant, v Joseph B. Klein et al., Constituting the Board of Standards and Appeals of the City of New York, et al., Respondents. Institute of Design and Construction, Inc., Intervenor-Respondent.
    Argued January 5, 1977;
    decided February 10, 1977

      Benjamin Hager for appellant.

      Jacob A. Salzman for intervenor-respondent.
   Memorandum. The order of the Appellate Division should be affirmed.

Section 32-25B of the Zoning Resolution sets forth the zoning requirements for automobile laundries. The interpretation placed on that section by the Commissioner of Buildings of the City of New York—that "reservoir space for not less than 10 automobiles per washing lane” refers to 10 cars in a line of traffic—is reasonable and neither arbitrary nor capricious. Concededly appellant’s premises do not comply with this standard. Accordingly the action of the commissioner in the exercise of his authority to revoke permits issued in error for failure to comply with code provision cannot be characterized as arbitrary or capricious, nor can the subsequent action of the city Board of Standards and Appeals in affirming his revocation in this instance. Because the permit was invalidly issued there is no predicate for appellant’s assertion that vested rights have accrued to him in consequence of his construction of a car laundry on the premises.

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 the Arbitration between Country-Wide Insurance Company, Appellant, and William D. Wills et al., Respondents.
    Argued January 5, 1977;
    decided February 10, 1977

      Bernard Meyerson for appellant.

      Marshal S. Endrick for Security Insurance Company of Hartford, respondent.
   Order affirmed, with costs, on the memorandum at the Appellate Division (51 AD2d 701).

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


text:
    Stephen R. Kent, Appellant, v Aurora Products Corp., Respondent.
    Argued January 6, 1977;
    decided February 10, 1977

      E. Richard Rimmels, Jr., for appellant.

      William E. Kelly for respondent.
   Order affirmed, with costs. No agreement had been reached and there is no proof that the defendant wrongfully or arbitrarily prevented consummation of the negotiations (see Kaelin v Warner, 27 NY2d 352, 355).

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


author: Fuchsberg, J. (dissenting).

text:
    In the Matter of Sands Point Nursing Home, Appellant, v Hollis S. Ingraham, as Commissioner of Health of the State of New York, et al., Respondents.
    Argued January 4, 1977;
    decided February 10, 1977

      Stanley H. Lowell and Richard L. Brenner for appellant.

      Louis J. Lefkowitz, Attorney-General (Amy Juviler and Samuel A. Hirshowitz of counsel), for respondent.
   Order affirmed, with costs, on the memorandum at the Appellate Division (48 AD2d 897).

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

Fuchsberg, J. (dissenting).

I believe the order of the Appellate Division should be reversed and the judgment of the Supreme Court reinstated.

It is conceded that the petitioner’s conditional purchase agreement was not finalized until the purchase price was expressly approved as a basis for property cost reimbursement by the Public Health Council and other appropriate authorized bodies of the Department of Health. The parties are also in agreement that the price arrived at between the seller and the petitioner was not only the true one but was the product of bona fide, arm’s length negotiations. As such, the basis it provided for reimbursement was in accordance with both the regulations and the practice long and, until then, invariably enforced by the respondent. The Commissioner of Health’s later promulgation and application of a new methodology at a time when the petitioner’s assumption of his contract obligations had become irreversibly fixed was calculated to and did bring about an impermissible ex post facto impairing of substantial vested property rights (cf. Lynch v United States, 292 US 571, 577, 579; Matter of Bayswater Health Related Facility v Karagheuzoff, 37 NY2d 408). Under the circumstances, whatever the warrant for the commissioner’s application of the newly adopted regulations to transactions not yet approved, it was unlawful for him to apply them retroactively to the one before us.

Order affirmed, etc.


text:
    In the Matter of Newport Associates, Inc., Respondent, v Nathan Leventhal, as Commissioner of the Department of Rent and Housing Maintenance, Appellant.
    Argued January 6, 1977;
    decided February 10, 1977
   Appeal dismissed, without costs, for mootness, upon the ground that the leased premises were voluntarily vacated by the tenant in June, 1975, and subsequent to the effective date of the Vacancy Decontrol Law (L 1971, ch 371, as amd by L 1974, ch 576) which provides for the decontrol of leaseholds vacated after June 30, 1971 (Local Emergency Housing Rent Control Law, § 5; L 1962, ch 21, § 1, subd 5, as amd).


text:
    George M. Howard et al., Appellants, v William E. Murray, Respondent.
    Submitted January 1, 1977;
    decided February 10, 1977
    Reported below, 55 AD2d 181.
   Motion to dismiss the appeal herein denied.


text:
    In the Matter of Consolidated Edison Company of New York, Inc., Respondent, v Walter Hoffman et al., Constituting the Zoning Board of Appeals of the Village of Buchanan, Appellants. Hudson River Fisherman’s Association, Intervenor-Respondent.
    Submitted January 3, 1977;
    decided February 10, 1977
    Reported below, 54 AD2d 761.
   Motion to dismiss the appeal herein granted and appeal dismissed, with costs and $20 costs of motion, upon the grounds that appellants are not aggrieved by the modification at the Appellate Division and no substantial constitutional question is directly involved (CPLR 5601, subd [a], par [iii]; subd [b], par 1).


text:
    Elma Penato, Individually and as Administratrix of the Estate of Robert Penato, Deceased, Respondent, v Stephen George et al., Appellants.
    Submitted December 20, 1976;
    decided February 10, 1977
    Reported below, 52 AD2d 939.
   Motion to dismiss the appeal herein denied.


text:
    Constance Sacramone, an Infant, by Her Father and Natural Guardian, Dario Sacramone, et al., Appellants, v David Tunick, Respondent.
    Submitted January 10, 1977;
    decided February 10, 1977
    Reported below, 54 AD2d 897.
   Motion to dismiss the appeal herein granted and the appeal dismissed, without costs, upon the ground that the order appealed from involves an exercise of discretion of the type not reviewable by the Court of Appeals.


text:
    Richard Gangel, Respondent, v N. DeGroot, PVBA, et al., Defendants, and Henrijean & Cie et al., Appellants.
    Argued January 7, 1977;
    decided February 15, 1977

      Brendan J. Connolly for appellants.

      Jerold W. Dorfman and David A. Beale for respondent.
   Memorandum. Order affirmed, with costs.

Special Term correctly held that a contractual choice of forum, whether as to place or the preclusion of the right to litigate in favor of arbitration, must be express (see Matter of Rosenbaum [American Sur. Co.], 11 NY2d 310, 314; Matter of Riverdale Fabrics Corp. [Tillinghast-Stiles Co.], 306 NY 288, 289-292; cf. Matter of Marchant v Mead-Morrison Mfg. Co., 252 NY 284, 298-301, app dsmd 282 US 808; Matter of Doughboy Inds. [Pantasote Co], 17 AD2d 216, 220). The clause in the marine insurance policy in suit, as opposed to the "broad” arbitration clause accepted in this and other American jurisdictions as unlimited, was limited (e.g., Matter of Weinrott [Carp], 32 NY2d 190, 196; see Matter of Marchant v Mead-Morrison Mfg. Co., supra, p 299; compare 2 Am Jur Legal Forms 2d, Arbitration and Award, § 23:32, with § 23:42). The instant clause refers to disputes "regarding the execution of the present policy”. Although the term "execution” has both a broad and a narrow connotation, an arbitration clause must be read conservatively if it is subject to an equivocal reading (see Matter of Riverdale Fabrics Corp. [Tillinghast-Stiles Co], supra, p 291; Matter of Marchant v Mead-Morrison Mfg. Co., supra, pp 298-301; Matter of Doughboy Inds. [Pantasote Co], supra, p 220). A distinction must be drawn. The agreement to arbitrate must be express, direct, and unequivocal as to the issues or disputes to be submitted to arbitration. But, once there is agreement or submission to arbitration, the scope of the arbitrators is unlimited and, with very limited exceptions, unreviewable (Matter of Weinrott [Carp], supra, p 198; Lentine v Fundaro, 29 NY2d 382, 383, 386).

Although, as appellants argue, the law of Belgium would appear prima facie to be applicable to the execution and interpretation of the agreement, appellants offered no proof or argument as to the applicable Belgian law. Left unresolved is whether under Belgian law the word "execution”, or the clause as a whole, would be given the broad connotation comparable to that of a broad arbitration clause in American jurisdictions. Compounding the difficulty is the ambiguous and unexplained final sentence of the arbitration provision: "The parties concerned reserve themselves the right of appeal.” Again, appellants offer no proof or argument what that means under Belgian law. Instead, they blandly refer to the arbitration clause as governing "all disputes”, thus begging the question. It would be foolhardy to assume that the appeal provision refers to a Belgian judicial procedure comparable to that provided in this State for limited judicial supervision of arbitration proceedings under CPLR article 75.

The policy provides in a place separate from that dealing with arbitration, and arguably dealing with claims made under the policy rather than with the execution and performance of the policy proper, that is, delivery of an executed policy and payment of premium, that "Disputes are settled at the place where the contract is subscribed by the Underwriters.” Again, this provision for situs of "settlement” and "subscription by the underwriters” is ambiguous and would require interpretation and construction under Belgian law. The defect is not supplied and the rule of interpretation applicable to arbitration provisions generally should apply here.

On the above analysis in the absence of proof of contrary applicable foreign law, the law of the forum should be applied (Ehrenzweig, Conflict of Laws, § 119, pp 341-342; but see CPLR 4511, subd [b]).

Other issues raised need not be reached, if only because they depend largely upon evidentiary facts purportedly supplied only by the affidavit of the attorney for appellants.

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:
    Cenven, Inc., et al., Plaintiffs, v Bethlehem Steel Corporation et al., Defendants. Bethlehem Steel Corporation, Third-Party Plaintiff-Respondent, v Youngstown Cartage Company, Third-Party Defendant-Appellant.
    Argued January 13, 1977;
    decided February 15, 1977

      Steven Di Joseph and John J. Bower for appellant.

      William T. Ryan and John R. O’Connor for respondent.
   Memorandum. Order affirmed, with costs.

(See Wagman v American Fid. & Cas. Co., 304 NY 490, esp 494-495; Lamberti v Anaco Equip. Corp., 16 AD2d 121, esp 123-124.) It would be unwise to proliferate fine distinctions from and exceptions to the now judicially determined language "loading and unloading”, absent other qualifying language establishing a contrary meaning or ambiguity, either in an indemnification agreement or in an insurance policy. Moreover, the doctrine of stare decisis should not be departed from except under compelling circumstances (cf. People v Hobson, 39 NY2d 479, 487-491; Matter of Eckart, 39 NY2d 493, 498-500; see, also, Matter of Garwitt, 41 NY2d 845).

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

Order affirmed.


text:
    James F. Schiavone et al., Respondents, v County of Nassau et al., Defendants, and "John” Kamensky et al., Appellants. Betty Iorio, Individually and as Administratrix of the Estate of Carmine Iorio, Deceased, Respondent, v County of Nassau et al., Defendants, and Harold W. Pearson et al., Appellants.
    Argued January 10, 1977;
    decided February 15, 1977

      James M. Catterson, Jr., County Attorney (William S. Norden and Natale C. Tedone of counsel), for appellants.

      Norman H. Dachs and Beth J. Goldmacher for respondents.
   Memorandum. Orders affirmed, with costs.

In light of the provisions of subdivision 4 of section 50-e of the General Municipal Law (prior to L 1976, ch 745, see L 1945, ch 694) plaintiffs were entitled to rely on the clauses purportedly dispensing with notice other than as provided in the section. The subsequent amendment of section 52 of the County Law (L 1976, ch 745) reinforces the interpretation of the legislative intention by the courts below. (See, also, Stephens v Department of Health of Orange County, 64 Misc 2d 81.)

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

In each case: Order affirmed, with costs, in a memorandum. Question certified answered in the affirmative.


text:
    In the Matter of Rachel Khotim, as Administratrix of the Estate of Mark Garwitt, Deceased. Louis J. Lefkowitz, as Attorney-General of the State of New York, Appellant; Aleksandr K. Mikheev et al., Respondents.
    Argued January 11, 1977;
    decided February 15, 1977

      Louis J. Lefkowitz, Attorney-General (Daniel M. Cohen, Samuel A. Hirshowitz, Arlene Harris and William Roberts of counsel), for appellant.

      Martin Popper and Gerald C. Goldstein for Aleksandr K. Mikheev, respondent.
   Memorandum. Order affirmed, with costs.

The disposition is controlled by Matter of Utassi (15 NY2d 436), a case in which the court had before it the cogent arguments in dissent of Mr. Justice Aron Steuer at the Appellate Division, arguments which the Attorney-General urges should be applied as the rule in this case (20 AD2d 232, 233). It is not without significance that in Matter of Menschefrend (283 App Div 463, 468, affd 8 NY2d 1093, cert den sub nom. Brown v Lefkowitz, 365 US 842) it was observed that "[t]he law of situs may provide for application of the law of the domicile as to distribution and descent”. The rule is permissive, therefore, and the law of the situs as "supreme” may provide otherwise. Consequently, the State has the power by legislation to preclude sovereignties from "inheriting” assets located within the State and thus abolish or modify by statute the diaphanous distinction between "inheritance” by sovereignties of assets not disposed of by will but by statutes of descent and distribution and bona vacantia. On these views, there is insufficient basis for departing from application of the doctrine of stare decisis, a departure to be resorted to only with the greatest restraint (People v Hobson, 39 NY2d 479, 487-491; Matter of Eckart, 39 NY2d 493, 498-500; cf. Cenven, Inc. v Bethlehem Steel, 41 NY2d 842).

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

Order affirmed.


text:
    The People of the State of New York, Respondent, v Donald L. Carr, Appellant.
    Submitted January 7, 1977;
    decided February 15, 1977

      John H. Owen, Public Defender, for appellant.

      George S. Kepner, Jr., District Attorney, for respondent.
   Order reversed and a new trial ordered on the dissenting memorandum by Mr. Justice Louis M. Greenblott at the Appellate Division (49 AD2d 656, 657).

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


text:
    Josephine Cotroneo, Individually and as Parent and Natural Guardian of Thomas Cotroneo, an Infant, Appellant, v Ralph Sabatino, Respondent.
    Argued January 7, 1977;
    decided February 15, 1977

      Robert Lahm, Sheila L. Birnbaum, Sidney Devorsetz and Irwin Birnbaum for appellant.

      Donald J. Kemple for respondent.
   Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (50 AD2d 1081) and because that court correctly discerned that the liability of the defendant was unrelated to that of a manufacturer or distributor of the machine which caused the injury.

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


text:
    Koehring Company, Appellant, v A. Cestone Company, Respondent.
    Argued January 10, 1977;
    decided February 15, 1977

      Steven Di Joseph, Thomas R. Newman and John J. Bower for appellant.

      William F. McNulty, Anthony J. McNulty and Joseph F. Onorato for respondent.
   Order affirmed, with costs, on the memorandum at the Appellate Division (52 AD2d 556; see, also, Restatement, Judgments 2d, Tent Draft No. 1 [March 28, 1973], § 48, and Comments).

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


author: Jones, J. (dissenting).

text:
    In the Matter of Henry Kessler, Appellant, v Chester D. Sherman et al., as Justices of the Justice Court, Town of Shelter Island, Respondents, and Louis J. Lefkowitz, as Attorney-General of the State of New York, Intervenor-Respondent.
    Argued January 6, 1977;
    decided February 15, 1977

      Howard M. Finkelstein and Robert C. Crimmins for appellant.

      Louis J. Lefkowitz, Attorney-General (Joseph J. Zedrosser, Samuel A. Hirshowitz and Philip Weinberg of counsel), for intervenor-respondent.
   Memorandum. The order of the Appellate Division should be affirmed. We agree with the reasons stated by Mr. Justice Margett in the majority opinion at the Appellate Division that the prior prosecution for violating the town ordinance does not bar the prosecution now pending, in which the petitioner is charged with violating the State law (ECL 25-0202). In addition we would note that the two laws differ materially in scope and purpose. The town ordinance is only concerned with the town’s interest in local wetlands, while the State law, which applies to a much broader area, seeks to carry out a uniform State policy consistent with the ecology of the State wetlands areas in their entirety.

Indeed, in the State prosecution petitioner is charged with alteration of an area immediately adjacent to a wetland, as well as the wetland itself, which would not be violative of the town ordinance. Moreover, in the State prosecution, he is charged with altering the wetland and adjacent area without a State permit. The lack of a State permit does not violate the town ordinance with which the petitioner was charged in the town complaint, namely, acting without a written permit from the town board.

Thus in our view, separate prosecutions for these separate offenses are authorized by the letter and the spirit of CPL 40.20 (subd 2, par [b]).

Jones, J. (dissenting).

It is not disputed that the State now seeks to prosecute appellant for an offense under State statute based on the same act or criminal transaction that was the predicate for the town offense of which he was acquitted. The majority concludes that the prospective State prosecution in this instance falls within the exception of CPL 40.20 (subd 2, par [b]) and accordingly is not prohibited by CPL 40.20. I cannot agree.

Paragraph (b) lays down two requirements. First, each of the potentially duplicative offenses must contain an element which is not an element of the other. This criterion is met inasmuch as absence of a town permit is an element of the town offense but not an element of the State offense, and vice versa. Second, the statutory provisions defining the two offenses must be "designed to prevent very different kinds of harm or evil” (my emphasis). While I can agree that it may accurately be said that the State statute differs in operative scope from the town ordinance, I cannot conclude that they are intended or drafted to prevent “very different” kinds of harm or evil. With only the slightest articulable differences, each proscription has as its objective protection of the ecology of wetlands and thus of adjacent areas. The harm or evil sought to be regulated and contained under the State statute is not substantively different, although it may be of a potentially greater geographical dimension. I must conclude, therefore, that paragraph (b) is not applicable, and respondent can rely on no other paragraph of subdivision 2.

The offense under the town ordinance involved conduct on Monday, September 10, 1973. The State charge by way of some difference relates to alleged acts on Tuesday, September 11, and Wednesday, September 12, as well. It is asserted that as a matter of substance the offending conduct took place on Monday and that no separately cognizable conduct occurred on Tuesday or Wednesday. That may prove to be the case as to pleadings or proof. Such contentions, however, should not be resolved on the present record or in this proceeding. Prohibition under CPLR article 78 is an extraordinary remedy, a procedural vehicle for raising only jurisdictional issues going to the power of the court; it is not available to raise questions properly to be considered in the criminal proceeding (see La Rocca v Lane, 37 NY2d 575, 578-579).

Accordingly, in my view, the petition in this instance should be granted to the extent of prohibiting prosecution of appellant under ECL 25-0202 with respect to any conduct on September 10, 1973, and without prejudice to the right of appellant to raise any issue he may otherwise be entitled to raise with respect to charges as to his conduct on September 11 and 12, 1973.

Chief Judge Breitel and Judges Jasen, Gabrielli, and Wachtler concur; Judge Jones dissents and votes to reverse in a separate opinion; Judges Fuchsberg and Cooke dissent and vote to reverse on the dissenting opinion by Mr. Justice John P. Cohalan, Jr., at the Appellate Division (51 AD2d 52, 54-60).

Order affirmed, without costs, in a memorandum.


text:
    Kathleen Kennedy et al., as Executors of Thomas J. Whalen, Deceased, Appellants, v New York City Employees’ Retirement System et al., Respondents.
    Submitted January 10, 1977;
    decided February 15, 1977

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

      W. Bernard Richland, Corporation Counsel (L. Kevin Sheridan and Martin H. Selman of counsel), for respondents.
   Order affirmed, with costs, on the opinion by Mr. Justice Samuel J. Silverman at the Appellate Division (51 AD2d 296).

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


text:
    In the Matter of D.M.C. Construction Corp., Respondent, v A. Leo Nash Steel Corp., Appellant.
    Argued January 13, 1977;
    decided February 15, 1977

      Edwin H. Wolf for appellant.

      Julius Zizmor for respondent.
   Order reversed, with costs, and the petition dismissed on the dissenting opinion by Mr. Justice J. Irwin Shapiro at the Appellate Division (51 AD2d 1040-1043). Question certified answered in the negative.

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


text:
    In the Matter of the Claim of Mary E. Curran, Appellant. Louis L. Levine, as Industrial Commissioner, Respondent.
    Submitted January 7, 1977;
    decided February 15, 1977

      Guy W. Germano, John E. Kirklin, Kalman Finkel, Bernard C. Durham and Virginia C. Duncombe for appellant.

      Louis J. Lefkowitz, Attorney-General (Samuel A. Hirshowitz, Murray Sylvester and Irving Jorrisch of counsel), for respondent.
   Order reversed, with costs, decision of the Unemployment Insurance Appeal Board annulled, and the matter remitted to the Appellate Division, Third Department, with directions to remand for allowance of the claim for the reasons stated in the dissenting memorandum by Mr. Justice Michael E. Sweeney at the Appellate Division (50 AD2d 681).

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


text:
    The People of the State of New York, Respondent, v John Miller, Appellant.
    Argued January 13, 1977;
    decided February 15, 1977

      Patrick M. Wall for appellant.

      Mario Merola, District Attorney (Stephen R. Bookin of counsel), for respondent.
   Memorandum. The order of the Appellate Division is affirmed.

It was flagrant misconduct for the trial prosecutor to elicit the response that the defendant was the source of the heroin for the possession of which the witness Williams had been convicted in an unrelated case. In view of the Trial Judge’s prompt curative instructions to the jury and trial counsel’s express declination to move for a mistrial, the error, if that it be, was waived and a deliberate choice made to proceed with the trial. We have reviewed the other matters raised by the defendant and find them to either lack merit or constitute harmless error.

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

Order affirmed in a memorandum.


text:
    Sophia Dombrowski, Respondent, v Eugene Somers et al., as Executors of Edward Vogel, Deceased, Appellants.
    Argued January 4, 1977;
    decided February 15, 1977

      Guido J. Napoletano for appellants.

      Theodore Guterman, II, for respondent.
   Memorandum. By this action plaintiff seeks compensation for housekeeping chores rendered pursuant to an alleged oral agreement between herself and the decedent, Edward Vogel, whose household she was sharing.

Three witnesses testified that they heard Vogel say he would "take care of’ plaintiff. None recalled any reference to a specific date. The claim itself was not filed until 18 months after the decedent’s death.

The words to "take care of’, in the context of this record, are too vague to spell out a meaningful promise. Even if they were not, standing alone, they would be legally insufficient to support a finding that there was a contract to compensate plaintiff during her lifetime rather than one to do so by bequest. In the latter case, an enforceable agreement would be required to be in writing (EPTL 13-2.1, subd [a], par [2]). In short, plaintiff has not met her burden of proof as a matter of law (cf. Matter of Gorden, 8 NY2d 71; Matter of Adams, 1 AD2d 259, affd 2 NY2d 796).

Accordingly, the order of the Appellate Division is reversed and the complaint dismissed.

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

Order reversed, with costs, and the complaint dismissed in a memorandum.


text:
    The People of the State of New York, Respondent, v Bruce Taylor, Appellant.
    Argued January 7, 1977;
    decided February 15, 1977

      Andrea Moran for appellant.

      Francis J. Vogt, District Attorney (E. Michael Kavanagh and Edward M. P. Greene of counsel), for respondent.
   Order affirmed on the memorandum at the Appellate Division (50 AD2d 947).

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


text:
    The People of the State of New York, Respondent, v Julio Garcia, Also Known as Pedro Cotto and John Doe Pervugo, Appellant.
    Argued January 10, 1977;
    decided February 15, 1977

      Daniel J. Bernstein and William E. Hellerstein for appellant.

      Mario Merola, District Attorney (Bruce M. Tenenbaum of counsel), for respondent.
   Order affirmed on the opinion by Presiding Justice Harold A. Stevens at the Appellate Division (51 AD2d 329).

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

Fuchsberg, J. (dissenting).

In my judgment, the defendant was deprived of his fundamental right to a fair trial, both because (1) his privilege against self incrimination (NY Const, art I, § 6; US Const, 14th Amdt) was violated in the manner so well stated by Mr. Justice Louis J. Capozzoli in his opinion for the two dissenters at the Appellate Division, and (2) because of the closing of the courtroom to the public during the testimony of Officer Ferrer solely on the per se ground that he was an undercover agent and without any demonstration of special circumstances such as, for instance, the "presence of other investigatory targets [which] posed a threat to the agent’s life” (People v Hinton, 31 NY2d 71, 75; US Const, 6th Amdt; see, also, People v Crimmins, 36 NY2d 230, 238). Reversal of the conviction and a new trial are therefore required.

Order affirmed, etc.


text:
    Harold G. Lacks, Respondent, v Irene R. Lacks, Appellant.
    Submitted January 31, 1977;
    decided February 15, 1977
   Motion for reargument denied, with $20 costs and necessary reproduction disbursements. Appellant confuses the Federal jurisdictional requirement that there be domicile of at least one of the parties with the one-year durational residence requirement of section 230 of the Domestic Relations Law (see 41 NY2d 71, 73).


text:
    William F. Marsano, Petitioner, v State Bank of Albany, Respondent. Anthony B. Cataldo, Intervenor-Appellant; United States of America, Intervenor-Respondent.
    Submitted February 7, 1977;
    decided February 15, 1977
   Renewed motion to vacate the Court of Appeals order of dismissal dated October 26, 1976 denied. [See 40 NY2d 906.]


text:
    In the Matter of the Claim of Joe Green, Appellant. Philip Ross, as Industrial Commissioner, Respondent.
    Submitted January 31, 1977;
    decided February 15, 1977
    Reported below, 54 AD2d 1049.
   Motion for leave to appeal dismissed upon the ground that movant is not aggrieved by the determination at the Appellate Division (CPLR 5511; Cohen and Karger, Powers of the New York Court of Appeals, §91, p 395; Matter of Zaiac, 279 NY 545, 554).


text:
    Allan J. Riley, Respondent, v Lawrence D. Maran et al., Appellants.
    Decided February 15, 1977
    Reported below, 52 AD2d 803.
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that it involves only a question of discretion of the type not reviewable by the Court of Appeals.


text:
    In the Matter of the Estate of Frank Kaplan, Deceased. Gerald L. Minkoff et al., Appellants; Rose Kaplan et al., Respondents.
    Argued January 14, 1977;
    decided February 17, 1977

      Dominick J. Viscardi for appellants.

      James A. Murphy, Jr., C. Louis Abelove and Joseph J. Shinder for respondents.
   Order affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the estate, on the opinion by Mr. Justice T. Paul Kane at the Appellate Division (50 AD2d 429).

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


text:
    The People of the State of New York, Respondent, v Michael Dread, Appellant.
    Argued January 12, 1977;
    decided February 17, 1977

      Helena Pichel Solleder for appellant.

      Robert M. Morgenthau, District Attorney (Allen Alpert and Peter L. Zimroth of counsel), for respondent.
   Order affirmed on the opinion by Mr. Justice Vincent A. Lupiano at the Appellate Division (49 AD2d 401).

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


text:
    In the Matter of the Arbitration between Allcity Insurance Company, Respondent, and Dimitrious Sioukas, Appellant.
    Argued January 14, 1977;
    decided February 17, 1977

      Norman Leonard Cousins for appellant.

      Philip Hoffer, Rose L. Hoffer, Peter T. Affatato and Adolph B, Salib for respondent.
   Order affirmed, with costs, on the memorandum at the Appellate Division (51 AD2d 525).

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


text:
    Gramercy Park Animal Center, Inc., Appellant, v Richard M. Novick, Respondent.
    Argued January 13, 1977;
    decided February 17, 1977

      Arthur N. Abbey and Stephen T. Rodd for appellant.

      Irving D. Novick for respondent.
   Memorandum. The order of the Appellate Division is affirmed, without costs.

The parties entered into two simultaneously executed agreements by which plaintiff leased certain real property and a veterinary practice to defendant. The leases were to terminate at the end of five years, the defendant having the option of a renewal for an additional five-year term. The veterinary practice lease contained a covenant by which defendant agreed not to compete with plaintiff for a period of five years in a designated area, in the event either of the lease agreements should be terminated because of defendant’s default, or in the event defendant, upon timely notice, elected to cancel the lease during its term. Upon the expiration of the regular term of the lease, defendant chose not to exercise his option to renew the lease for an additional five-year term.

Covenants not to compete should be strictly construed because of the "powerful considerations of public policy which militate against sanctioning the loss of a man’s livelihood” (Purchasing Assoc. v Weitz, 13 NY2d 267, 272; see, also, Reed, Roberts Assoc. v Strauman, 40 NY2d 303; Karpinski v Ingrasci, 28 NY2d 45). The covenant not to compete did not survive the lease since expiration of its term may not be construed as termination by default or a unilateral cancellation thereof at defendant’s election, pursuant to the terms of the agreement. Summary judgment was properly granted to defendant.

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

Order affirmed.


text:
    In the Matter of 4822 Bar & Grill, Inc., Respondent, v New York State Liquor Authority, Appellant.
    Argued January 14, 1977;
    decided February 17, 1977

      Stanley Stein and William E. Bandon for appellant.
    No appearance for respondent.
   Judgment affirmed, without costs, on the memorandum at the Appellate Division (50 AD2d 889).

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


text:
    The People of the State of New York, Respondent, v Santos Lopez, Appellant.
    Argued January 12, 1977;

    decided February 17, 1977

      Morrell I. Berkowitz and William E. Hellerstein for appellant.

      Eugene Gold, District Attorney (Robert M. Levine of counsel), for respondent.
   Order affirmed. There is no question of law which may be reviewed by this court (NY Const, art VI, § 3, subd a).

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


text:
    The People of the State of New York, Appellant, v Julio Diaz, Respondent.
    Argued January 12, 1977;
    decided February 17, 1977

      Robert M. Morgenthau, District Attorney (Brian Rosner and Peter L. Zimroth of counsel), for appellant.

      Arnold Wallach and Robert Blossner for respondent.
   Memorandum. At the suppression hearing, defendant’s counsel did not express disagreement with the hearing court’s comment that there was no disputed issue with respect to the police officers’ right "to go over to” the car to investigate the suspicious activity they had previously observed (cf. People v De Bour, 40 NY2d 210). The only question was whether the police could also direct the defendant to shut off the ignition and get out of the car which was then stopped at a traffic light. The hearing court accepted the officers’ testimony that this was done in order to insure their safety during the inquiry and this factual determination was not disturbed by the Appellate Division. In view of this we have concluded that the officers acted reasonably under the circumstances. Thus the evidence which was observed in plain view, as the defendant prepared to leave the car, should not be suppressed.

Accordingly, the order of the Appellate Division should be reversed, the conviction reinstated and the case remitted to the Appellate Division for review of the facts.

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

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


text:
    In the Matter of the Claim of Gloria Bouvia, Respondent, v Atlantic Testing Laboratory et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued January 14, 1977;
    decided February 17, 1977

      Patrick J. Malone for appellants.

      Louis J. Lefkowitz, Attorney-General (Jorge L. Gomez, Ruth Kessler Toch and Daniel Polansky of counsel), for Workmen’s Compensation Board, respondent.
    No appearance for claimant-respondent.
   Order affirmed, with costs, on the memorandum at the Appellate Division (50 AD2d 680).

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


text:
    Donald W. Leo et al., Appellants, v Aaron Barnett et al., Constituting the Town Board of the Town of Babylon, Respondents.
    Submitted January 13, 1977;
    decided February 17, 1977

      Donald W. Leo, appellant pro se, and for Edward A. Baker, appellant.

      Joseph F. Klein, Town Attorney (Hugh J. Leitch of counsel), for respondents.
   Order affirmed, with costs, on the opinion by Mr. Justice James D. Hopkins at the Appellate Division (48 AD2d 463).

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


text:
    The People of the State of New York, Appellant, v Bertrand Walton, Respondent.
    Argued January 12, 1977;
    decided February 22, 1977

      Robert M. Morgenthau, District Attorney (Gerard Loughran, Peter L. Zimroth and Amelia C. Anzalone of counsel), for appellant.

      Morrell I. Berkowitz and William E. Hellerstein for respondent.
   Memorandum. Order of the Appellate Division, insofar as it dismissed the inclusory concurrent counts, reversed, the inclusory concurrent counts reinstated, and the matter remitted to the Appellate Division for consideration of the facts.

CPL 220.10 provides "[ejxcept as provided in subdivision five, the defendant may as a matter of right enter a plea of 'guilty’ to the entire indictment” (subd 2). Subdivision 5 of the section is not applicable. The balance of the provision is an unqualified mandate which, if not unconstitutional, must be followed. CPL 300.40 (subd 3, par [b]) requires dismissal of lesser inclusory concurrent counts only after a trial and a verdict of guilty upon the greatest count. Article 300 deals only with trials, and has no application to convictions obtained on plea of guilty. (See, accord, People v Ray, 50 AD2d 575, 576; contra People v Kitt, 48 AD2d 793, 794, mot for resettlement granted 49 AD2d 820, mot to dismiss app den 38 NY2d 799; People v Cox, 46 AD2d 641.)

The statutory distinction, which if constitutional requires no support, is indeed supported by sound policy considerations. Permitting the court to accept a plea of guilty to the entire indictment, even when a series of inclusory concurrent counts is involved, prevents a defendant, having voluntarily pleaded guilty, from avoiding all criminal sanction by obtaining on appeal a reversal of his conviction on a single count of the indictment. In the instance of a trial verdict there is a full record which establishes the facts upon which the prosecution relies to support the conviction. In the case of a plea of guilty there is no such record and there usually are only varying degrees of admissions of guilt other than the fact of the plea.

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

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


text:
    Julian J. Studley, Inc., et al., Respondents-Appellants, v Samuel J. Lefrak et al., Appellants-Respondents.
    Argued January 11, 1977;
    decided February 22, 1977

      Alan E. Bandler and Edward Labaton for respondents-appellants.

      Guy C. Quinlan, William R. Glendon and James M. Asher for appellants-respondents.
   Per Curiam.

This controversy arose out of the breakdown of the relationship between the plaintiffs (Studley) and the defendants (Lefrak) in connection with two real estate brokerage agreements. In March, 1968, Studley, duly licensed real estate brokers, entered into two written agreements with Lefrak under which they were to act as the exclusive renting agents for two commercial buildings about to be constructed by Lefrak. Pursuant to the terms of the two contracts, each agreement was to continue in effect until six months after the completion date of the individual building to which it applied. Each agreement also provided that Lefrak had the right to cancel the agreement at any time after one year from the commencement of construction of the building upon giving Studley 30 days written notice of their intention to do so.

The parties became embroiled in a dispute shortly after the execution of these agreements, culminating when Lefrak, through a series of letters in June, 1968, notified Studley that both agreements were being terminated. Lefrak’s asserted basis for the termination was that Studley had become involved in a conflict of interest by reason of an employment relationship they had entered into with another party. Studley thereafter commenced an action against Lefrak for breach of the two brokerage agreements.

On February 10, 1969, Lefrak filed what the plaintiffs have styled "a false and malicious affidavit” with the Department of State charging Studley with unethical conduct and a breach of fiduciary duty, and requested that the Department of State take whatever action it deemed appropriate. On February 19, 1969, the department commenced a license revocation proceeding against Studley (Real Property Law, § 441-c). The filing of the Lefrak affidavit and an alleged subsequent offer by Lefrak to withdraw the affidavit and claim of impropriety in settlement of the outstanding contract action form the basis of the plaintiffs’ fifth and sixth causes of action sounding in libel and abuse of process.

Noting the contract provisions allowing them to cancel the brokerage agreements one year after the commencement of construction, Lefrak moved for partial summary judgment or, in the alternative, to limit the issues for trial with respect to Studley’s first and fourth causes of action, seeking to limit the relevant damage periods to be considered in the event Studley was able to make out a case for breach. Lefrak also moved for summary judgment in connection with the tort causes of action. Special Term denied the motions in all respects. The Appellate Division affirmed the lower court’s determination in connection with the contract claims, but modified the lower court’s order by granting summary judgment on the fifth and sixth causes of action. Having so held, that court granted Lefrak leave to appeal from its determination in connection with the contract claims and certified the following question: "Was the order of this court dated December 15, 1975, properly made?”

Turning first to the denial of partial summary judgment or the limitation of the issues to be tried, the order of the Appellate Division should be affirmed for the reasons stated in the opinion of Mr. Justice Margett. Since the measure of damages suffered by Studley would be greatly dependent on their degree of success as the exclusive rental agent for the premises, and since that in turn may have had some bearing on any ultimate decision to terminate the agreements when Lefrak could do so without breaching the agreements, it was proper to reserve this factual issue for determination at trial.

We next consider the Appellate Division order granting Lefrak summary judgment with respect to the tort claims. The tort of abuse of process has recently come under scrutiny by this court in Board of Educ. v Farmingdale Classroom Teachers Assn. (38 NY2d 397). In that case (at p 403) we set forth the three essential elements of the cause of action: "First, there must be regularly issued process, civil or criminal, compelling the performance or forebearance of some prescribed act. Next, the person activating the process must be moved by a purpose to do harm without that which has been traditionally described as economic or social excuse or justification. * * * Lastly, defendant must be seeking some collateral advantage or corresponding detriment to the plaintiff which is outside the legitimate ends of the process.”

In the case now before us, the so-called "process” consisted of an affidavit sent by Lefrak to the Department of State alleging misdeeds by Studley and merely requesting that the department take whatever steps it deemed appropriate. This affidavit cannot be regarded as process for it is not a "■ 'direction or demand that the person to whom it is directed * * * perform or refrain from the doing of some prescribed act’ ” (Williams v Williams, 23 NY2d 592, 596, quoting Matter of Smith, 175 Misc 688, 692-693). Since here there was no unlawful interference with Studley’s person or property pursuant to regularly issued process, a cause of action for its abuse does not lie.

Finally we would note that on this appeal Studley does not challenge the decision below with respect to the claims grounded in libel. That issue not being before us, we express neither approval nor disapproval of the Appellate Division determination.

Accordingly, the order of the Appellate Division should in all respects be affirmed and the certified question answered in the affirmative.

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

Order affirmed, without costs. Question certified answered in the affirmative.

      . We note in passing that the hearing examiner in the license revocation proceeding initially upheld two of the three charges leveled against the plaintiffs. His determination was subsequently vacated by the Secretary of State, however, because of various irregularities in the manner in which the hearing was conducted and ordered that the proceedings be held in abeyance pending the termination of this litigation.

      . Studley has appealed to this court as of right with respect to the Appellate Division modification granting Lefrak’s motion for summary judgment on the causes of action sounding in tort (CPLR 5601, subd [a], par [iii]).


text:
    Atlantic Mutual Insurance Company, as Subrogee of Laura S. Smith, Respondent, v State of New York, Appellant.
    (Claim No. 57396.)
    Argued January 6, 1977;
    decided February 22, 1977

      Louis J. Lefkowitz, Attorney-General (Henry J. Smith, Gerald Nolan and Daniel G. Donovan of counsel), for appellant.

      Harold Y. MacCartney, Jr., and Dorothy C. Breland for respondent.
   Order affirmed, with costs, on the opinion by Mr. Justice Louis M. Greenblott at the Appellate Division (50 AD2d 356).

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


text:
    The People of the State of New York, Respondent, v Leroy Richardson, Also Known as Arnold Thomas, Appellant.
    Submitted January 14, 1977;
    decided February 22, 1977

      Barry Bassis and William E. Hellerstein for appellant.

      John J. Santucci, District Attorney (A. Brent Blacksburg of counsel), for respondent.
   Memorandum. There should be an affirmance. The police properly relied on information supplied to them by the airline’s customer service agent (see People v Moore, 32 NY2d 67, 69-70). Based on the observation by the airline’s agent, the police reasonably suspected that defendant was about to commit a crime involving a forged instrument and, accordingly, by statute could demand of defendant his name, address and an explanation of his conduct (CPL 140.50, subd 1). Credibility is a factual question not generally within the scope of our review (People v Concepcion, 38 NY2d 211, 213). The conflict here between the testimony of the police and that of defendant constituted such an issue and was within the fact-finding power of the Appellate Division which, upon its review, affirmed the denial of the motion to suppress.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Appellant, v Bestline Products, Inc., et al., Respondents.
    Argued February 15, 1977;
    decided February 24, 1977

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

      Gerald J. Fields, David Fleischer and Michael B. Jeffers for respondents.
   Memorandum. Order reversed, with costs in all courts, and the motion styled as one for discovery denied.

Assuming that the motion is one for discovery made under CPLR 408, 3101, and 3102, and that a proceeding brought under subdivision 12 of section 63 of the Executive Law is not exempt from discovery relief, it was an abuse of discretion, as a matter of law, to extend the relief in this case (see dissenting opn of Mr. Justice Samuel J. Silverman at the App Div [52 AD2d 17, 20] for an accurate description of the paucity of support for the relief sought in the moving papers and the litigation tactics involved). The record provides ample detail and definition of the alleged practice attacked as fraudulent by the Attorney-General, including, in the respondents’ own promotional material, some support, circumstantially, for the petitioner’s allegations. Had a proper case been made for relief in the nature of true discovery, the scope of relief would normally rest in the discretion of the courts below, the exercise of which this court would not review in the absence of an abuse of discretion as a matter of law. In this case, however, respondents’ purpose, barely concealed, was to uncover the scope of the Attorney-General’s investigation and perhaps discourage prospective witnesses.

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

Order reversed, with costs in all courts, and respondents’ motion denied in a memorandum. Question certified answered in the negative.


text:
    The People of the State of New York, Respondent, v Ernest L. Goodman, Appellant.
    Submitted January 13, 1977;
    decided February 24, 1977

      Douglas P. Rutnik, Public Defender (Joseph M. Brennan of counsel), for appellant.

      Sol Greenburg, District Attorney (Lois A. White of counsel), for respondent.
   Memorandum. The trial court has found, and the Appellate Division affirmed the finding, that the victim of the assault was unavailable to testify against the defendant for a substantial period of time following the assault as a result of the injuries that she sustained. CPL 30.30 (subd 4, par [g]) allows exceptional circumstances to justify periods of delay not expressly covered by the statute, even in the absence of a formal continuance. The unavailability of a principal prosecution witness, for medical reasons, is a sufficient exceptional circumstance to warrant the exclusion of the period of delay. (See People v Gordon, 47 AD2d 775.) With the period of medical unavailability excluded, the People were prepared for trial within six months of the commencement of the action and dismissal of the indictment pursuant to CPL 30.30 (subd 1, par [a]) was not required.

We also find no error in the transfer of the case from Family Court to the criminal courts. From the seriousness of the assault, the injuries sustained, and the request for a protective order, the Family Court could properly conclude, as it did, that it would be inappropriate to apply the processes of the Family Court to this case. (Family Ct Act, § 816, subd [a]; cf. Matter of Appell v Appell, 37 AD2d 966, affd 30 NY2d 800.) Similarly, neither the statute nor constitutional principle mandates that, in all cases, a hearing be held prior to effecting such a transfer. (People v Gemmill, 34 AD2d 177, 180.) Moreover, defendant never appealed from the order of transfer, which is a final, appealable order (Family Ct Act, § 1112; People v Isaacs, 43 AD2d 656), nor did he seek an order rescinding the transfer (Family Ct Act, § 816, subd [b]). Under such circumstances, defendant may not collaterally attack the transfer order on appeal from his criminal conviction.

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

Fuchsberg, J. (dissenting).

The main issue on this appeal is whether the People violated the obligation imposed upon them by CPL 30.30 (subd 1, par [a]) to be ready for trial within six months after the commencement of a criminal action in which one of the charges is a felony.

The facts are not disputed. On June 27, 1972, Leola Goodman filed a complaint against her husband, Ernest Goodman, for assault in the second degree, a class D felony, as a result of acts committed during a domestic quarrel on June 18, 1972. However, he was not indicted until February 1, 1973, more than seven months later. Having been held in jail by then without being brought to trial for a period in excess of six months, defendant moved to dismiss the indictment because of the People’s failure to prosecute within the time limited by the statute. The motion was denied. On March 5, 1973, still confined, he elected to plead guilty and thereafter appealed.

On the initial appeal, the Appellate Division, by a vote of 3 to 2, remitted for a hearing by the Albany County Court to determine whether any periods of the delay that had ensued between the time of the filing of the complaint and the time when he took the plea should be excluded from the period within which the People were required to be ready for trial (44 AD2d 862). Justices Kane and Main, who dissented, would have dismissed the indictment at that juncture.

Testimony at the hearing established that the wife had been hospitalized for approximately five weeks for treatment of her injuries and that she had thereafter continued under a physician’s care for approximately an additional month. However, her hospitalization had not prevented her from leaving the hospital as early as June 27, 1972 to “go down to issue a warrant for what happened”; she also left the hospital at times to go home and check on their children. During the month after she left the hospital and was still under the doctor’s care, the record shows she would go out to her sister-in-law’s house for dinner. Both at the hospital and afterwards, there was no time, according to her own testimony, when she was completely incapacitated or when she was unable to walk around or function normally. Nevertheless, the County Court went on to find “as a fact that the victim was unavailable to the People as a witness during such period of time, i.e., nine weeks, and that such period of delay is to be excluded from the time within which the People should have been ready for trial.” The Appellate Division affirmed that determination.

CPL 30.30 is the culmination of a great deal of legislative and judicial concern with delay in dispositions of criminal cases. Prior to its enactment, the statutory provisions dealing with the speedy trial problem were to be found in section 12 of the Civil Rights Law and in section 8 of the Code of Criminal Procedure. While they guaranteed every defendant the right to “a speedy trial”, they did not define that phrase in terms of specific time periods or guidelines. “Undue delay” was, therefore, held to depend " 'upon the circumstances of each particular case’ ” (People v Prosser, 309 NY 353, 357 [Fuld, J.]; accord People v Kelly, 38 NY2d 633, 636; People v Imbesi, 38 NY2d 629, 631; People v Taranovich, 37 NY2d 442, 445; cf. People v Johnson, 38 NY2d 271). And “good cause” for delay was held to exist when delay, though extensive, was not “chargeable to the prosecutor and * * * occurred for reasons beyond his control or the control of the court” (People v Ganci, 27 NY2d 418, 423).

Students of these standards and of similar ones employed in some of our sister States concluded that they were too imprecise to insure speedy trial (see, e.g., President’s Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society, p 155 [recommending that the period from arrest to trial of felony cases not be more than four months]; ABA Project on Minimum Standards for Criminal Justice, Standards Relating to a Speedy Trial, § 2.1, pp 14-15, and commentary thereunder). Based in part on such studies CPL 30.30, which flowed from a confluence of legislative and judicial thinking, established the concept of fixed periods of time within which criminal actions must be brought to trial (see Denzer, Practice Commentary, McKinney’s Cons Laws of NY CPL 30.30 [1976-1977 Supp], p 37; People ex rel. Franklin v Warden, 31 NY2d 498, 502). To achieve its purpose, it provides, in no uncertain terms, that a motion to dismiss an indictment on the ground of denial of a speedy trial must be granted if the People are not ready for trial within six months of the commencement of a criminal action in which a defendant is charged with a felony (CPL 30.30, subd 3). The only exceptions are for the circumstances enumerated in CPL 30.30 (subd 4) (see People v Sturgis, 38 NY2d 625, 627).

We turn then to the case at hand. Measured, as the time must be, from the filing of the complaint to the date of the plea, eight months and six days elapsed. The delay therefore exceeded the permissible perimeter of six months by two months and six days. In the face of those figures, the District Attorney argues that the nine-week exclusion found by the Albany County Court on the remand from the Appellate Division was the equivalent of a continuance under CPL 30.30 (subd 4, par [g]) which provides that "the period of delay resulting from a continuance granted at the request of a district attorney [must be excluded] if (i) the continuance is granted because of the unavailability of evidence material to the people’s case, when the district attorney has exercised due diligence to obtain such evidence” (emphasis supplied).

The difficulty with that argument is that there is nothing in this case on the basis of which that exception may be invoked. In order for the period of a continuance to be excluded, the spirit and language of the statute requires that it be requested prior to the expiration of the six-month period. No nunc pro tunc excuse is authorized and none can be implied. At the time of the denial of defendant’s motion to dismiss, no continuance had been requested by the District Attorney. The excuse that the complaining witness had at one time been incapacitated, wholly or in part, had not even been advanced. There had been no assertion that Mrs. Goodman had been found to be unavailable. Indeed, there was no occasion for the prosecution to claim that any due diligence on its part had met with frustration. The People just were not ready within the applicable time period and made no effort to stop the clock. It follows that they failed to carry their burden on the initial appeal to the Appellate Division and remission for an evidentiary hearing, the latter held long after the six-month time period had run. For, if the circumstances here are to be regarded as within the "exceptional” ones contemplated by CPL 30.30 (subd 4, par [g]) the partial and temporary indispositions of health to which a large portion of our population are subject as a normal concomitant of living would be sufficient to rationalize ignoring the statute’s mandated time periods in most cases.

Moreover, even when timely made, a reason given for a continuance must relate to the cause for the delay (People v Sturgis, 38 NY2d 625, supra; cf. People v Patterson, 38 NY2d 623). In the Sturgis case, for example, the defendant had absconded, but we dismissed because there had been no causal connection between the defendant’s disappearance and the People’s delay in securing the indictment until after the six-month statutory period had elapsed. The case before us presents analogous circumstances. Mrs. Goodman’s disability, such as it was occurred during the first nine weeks of the six-month statutory time period; notably, there is nothing to indicate that she was unable to attend before the Grand Jury, even during the early weeks; undisputably, she was fully available thereafter. Specifically, it is not claimed that she at any time was unable to provide the prosecution with the cooperation needed or requested in preparation for trial or for presentation of its case. The statute was simply ignored.

Accordingly, unless the achievement of the statute’s purposes is to be vitiated, the indictment should have been dismissed.

Chief Judge Breitel and Judges Jasen, Gabrielli and Jones concur in memorandum; Judge Fuchsberg dissents and votes to reverse in a separate opinion; Judge Wachtler dissents and votes to reverse in the following memorandum: I agree with Judge Fuchsberg that the indictment should be dismissed pursuant to CPL 30.30 since more than six months had elapsed and there was no basis for excusing or excluding any period of the delay; Judge Cooke taking no part.

Order affirmed.

      . CPL 30.30 became effective April 28, 1972. Prior to that date, CPL 30.20, in essence, continued prior law.

      . The fixed time concept was first adopted by the rules of the Administrative Board of the Judicial Conference. Before their effective date, however they were embraced by CPL 30.30, which expressly superseded the rules (L 1972, ch 184, § 5). The State Crime Control Commission, noting that the public, defendants and victims of crime all have a strong interest in the prompt trial of criminal causes, recommended approval of CPL 30.30 in a memorandum approving the time period definition in the following language: "The speedy trial rules promulgated by the Administrative Board of the Judicial Conference requiring the trial of all criminal charges within six months of initiation establish a goal to which the efforts of the entire criminal justice system should be directed and an appropriate standard by which its performance can be measured. This bill shares the same goal” (1972 McKinney’s Session Laws of NY, p 3260).